The Volokh Conspiracy

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Can one get an injunction to enforce Godwin's Law?


One version of Godwin's Law famously says that whoever analogizes one's opponent to a Nazi (absent highly unusual circumstances) automatically loses the argument. Fireman's Fund Ins. Co. v. Black (Cal. Ct. App. Nov. 6, 2014) brings that into actual law:

[Mr.] Dominique Black submitted a claim to his insurer, Fireman's Fund Insurance Company. The claim was initially denied and, over the next couple of years, Black communicated with company representatives through letters, emails, and telephone conversations. In these communications, Black complained, often in vitriolic terms, that Fireman's Fund handled his claim improperly, engaged in illegal activities, and had ties to the Nazi regime in Germany….

Black [believed that] Fireman's Fund's parent company, Allianz SE (Allianz) … had been aligned with the Nazi regime in Germany. He investigated purported misdeeds by Allianz during the Holocaust, and he implied to Lesser that Allianz never paid off on insurance policies that the company had issued to Jewish policyholders who were killed in concentration camps. Black claimed that, like Allianz, Fireman's Fund engaged in wide-ranging financial and other improprieties.

Even before his claim was denied, Black sent a letter to the company's director of automobile claims, copying other personnel, threatening to file a complaint with the California Department of Insurance (CDI), to use "social media to facilitate a viral consumer brand awareness campaign about Allianz's history of 'evil and corruption' in a global boycott of Allianz products and stock until [Fireman's Fund] corrects its conduct," and to pursue civil litigation "after this campaign." (Italics added.) In the later onslaught of emails, Black frequently referred to the Allianz-Nazi connection. In a declaration Lesser submitted in connection with the anti-SLAPP motion, Lesser stated that in telephone conversations Black repeated his threats to launch a "social media campaign" against Fireman's Fund and to associate it with Nazis….

[Black] charged that Allianz and Fireman's Fund were "under the control of former NAZI collaborators," and that Fireman's Fund employees acted like "NAZI's from the insurance industry" and had used "totalitarian tactics reminiscent of past Allianz executives," while engaging Black in a "war of extermination." …

At the end of September 2011, Fireman's Fund sent Black a check for $8,994.95 for reimbursement of lost or stolen parts from the motor home and some of Black's towing and storage costs. Black refused to accept it. Around this time, he sent a photocopy of a Web page design he intended to launch titled, "AllianzWatch … a voice for the consumer and investor," which included the banner with a swastika, and with the following lead in: "De-Nazified 65 years ago…. Has the beast returned in Fireman's Fund[?]"

Fireman's Fund eventually sued, accusing Black of extortion, interference with business relations, and other misconduct.

[Fireman's Fund] requested injunction sought to prohibit Black from "[p]ublishing statements or images in any media and on any Web site stating that Fireman's Fund personnel have committed crimes or fraud, or that associate Fireman's Fund or its business practices with Nazis, with the conduct, practices or statements of the Nazi regime, or with the Einsatzgruppen"; from "using the word[s] 'Allianz' [or] 'Fireman's Fund' in conjunction with the word 'Nazi,' the word 'exterminate,' and/or an image or images of a swastika …"; and from "[c]ommunicating with or contacting … Fireman's Fund … employees with any communications that are alarming, annoying, harassing, intimidating, threatening, vile, ugly[,] or hateful."

The Court of Appeal concluded that Black's claims—both his Godwin's-Law-condemned analogy of an insurance company's payment practices to the conduct of Nazis, and his more historical claim of a connection between Fireman's Fund's parent company and actual Nazis—related to a matter of public concern:

Black contends, and we agree, that speech complaining about an insurance company's allegedly illegal business practices in issuing, canceling, and substituting policies or processing claims must be considered speech on matters of public interest under subdivision (e)(4). Black's complaints were not limited to his own isolated insurance claim but also included accusations that Fireman's Fund suffered from internal corruption and was engaged in financial misconduct and "money laundering." …

Black's threat to publicize Allianz's past relationship with the Nazi regime in Germany is also a matter of public interest. Information that an insurance company cooperated with Hitler's regime—and failed to pay life insurance benefits to the beneficiaries of policyholders who were exterminated in concentration camps—might well affect consumers' decisions about that company. The fact Fireman's Fund itself was not a participant in these events, but is merely owned by Allianz, does not change our conclusion.

Nonetheless, the court concluded that Allianz stated a claim that Black's speech was nonetheless tortious on various grounds, and that Fireman's Fund could proceed with the case. Moreover, the court concluded that, if some of Black's communications are "determined to be illegal [at trial], they can be enjoined from being repeated." My sense is that the hyperbolic characterizations of Fireman's Fund conduct as tantamount to Nazism would be constitutionally protected opinion, and couldn't be enjoined; likewise, any factually true statements (or, more precisely, statements that Fireman's Fund can't prove to be false) about Allianz's actions related to the Nazi era couldn't be enjoined other. But if Fireman's Fund can prove that specific "accusations of its unlawful misconduct were untrue," then repetition of those specific likely could be enjoined as constitutionally unprotected defamatory falsehoods (even though the tort claim is brought under the interference with business relations tort, rather than under the tort of defamation). See Balboa Island Village Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1155-56 (2007), which authorizes such injunctions of speech that has been found to be constitutionally unprotected.

The line between civil extortion (here, essentially blackmail: pay me $X or I'll reveal this information about you), proper litigation (here's a Complaint I'll file about you, with the unspoken message that the Complaint is likely to be picked up by the press or permissibly publicized by me, but I'll be happy to settle the case before filing, if you'd like), and constitutionally protected speech (I'm publicizing how I think you've been refusing to pay me what you owe, but with the unspoken message that if you do pay up, I'll stop) is famously vague, by the way. For more on this, see, for instance, this post.