The Volokh Conspiracy
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From Justice Kathryn E. Freed's decision Wednesday in Straka v. Lesbian Gay Bisexual & Transgender Community Center, Inc., dismissing a lawsuit that got some news coverage in 2019:
Plaintiff Straka is the founder and executive director of #WalkAway, a New York State licensed domestic not-for-profit limited liability company, and co-plaintiffs Harlow and White are "associates" of #WalkAway's who assist in its non-profit activities. The complaint describes those activities as holding or promoting events that are designed to promote "peaceful social discourse, political awareness and promotion of alternative expressions of gay identity and LGBT identity within the LGBT Community." … LGBTCC … is engaged in the business of "offering the LGBT Communities of New York City, advocacy, health and wellness programs, arts, entertainment, cultural events and various social and cultural services." …
The amended complaint alleges that, on March 14, 2019, Straka executed a contract with the LGBTCC to reserve space at its New York County location to hold a proposed #WalkAway panel discussion there, and also remitted payment to the LGBTCC of $650.00…. The complaint … allege[s] that the LGBTCC cancelled the scheduled #WalkAway event on March 22, 2019 "without valid reason or prior warning," and that the LGBTCC thereafter returned [the] $650.00 payment ….
The amended complaint further alleges that: 1) on May 19, 2019, defendant Rosenberg posted a defamatory Tweet about the scheduled #WalkAway event on the Twitter social media platform; 2) on March 21, 2019, defendant Beeferman prepared and posted a document entitled "An Open Letter to the LGBT Center" on the Airtable social media platform which contained several defamatory statements about #WalkAway, and which demanded that the LGBTCC cancel the scheduled #WalkAway event; and 3) on March 22, 2019, [defendant] Testone posted responses to the "Open Letter" on Twitter and on the LGBTCC's website that contained defamatory statements about #WalkAway, and that acknowledged that the LGBTCC had decided to cancel #WalkAway's scheduled event so as not to violate the LGBTCC's policies and mission….
[1.] Plaintiffs claimed that this violated state and local bans on discrimination based on sexual and gender identity, but the court concluded that,
The LGBTCC's announcement concerning its cancellation of the March 28, 2019 #WalkAway event stated as follows: "In recent days we have learned that certain of the panelists announced for this event have made repeated, well-documented past statements that violate our mission, values and the spirit of inclusiveness for all individuals and identities that is core to our work and who we are. Our space is a place of safety and refuge for those most vulnerable among us, and we will do everything in our power to protect that. Permitting this event to proceed would make many of our community members feel unsafe and, among other things, interfere with their ability to participate in other Center programming."
Plaintiffs assert that the amended complaint does "not allege discrimination based upon [their] political views, but rather that they "were discriminated against because of their sexual and gender identities." However, this assertion is belied by the text of the LGBTCC announcement, which refers to the center's "mission," but plainly does not mention sexual or gender identities. The court also notes that plaintiffs own ensuing assertion, that the LGBTCC "used its policies as a pretext, or cover, for not wanting to permit one of their own to express controversial views," appears to admit that the LGBTCC objected to their political views rather than their sexual or gender identities.
[2.] Plaintiffs also claimed that the defendants "engag[ed] in a pattern of egregious cyberbullying," but the court concluded that New York law doesn't create a civil action for cyberbullying. Plaintiffs had pointed to New York Human Rights Law § 8-102(26), which added at one pointed defined "cyberbullying", but that provision has apparently since been removed, and in any event was never accompanied with a prohibition of "cyberbullying." The court added that,
[A] recent Court of Appeals decision … invalidated the cyberbullying provision of an Albany County local law ("the Dignity for All Students Act") on the ground that it violated the Free Speech Clause of the First Amendment of the U.S. Constitution as overbroad. People v Marquan M., 24 NY3d 1 (2014). The Court opined that "cyberbullying is not conceptually immune from government regulation," but it did not recognize a cause of action created by the Albany County local law. Because plaintiffs have failed to establish that New York law recognizes a cause of action for "cyberbullying," or that HRL § 8-102 (26) creates such a cause of action, this Court grants so much of both the LGBTCC defendants' and the individual defendants' motions as seek dismissal of plaintiffs' second cause of action.
[3.] Plaintiffs also claimed defamation, but the court concluded that the defendants' statements were opinions, not actionable false statements of fact:
[The LBTCC's allegedly defamatory statement] made passing references to plaintiffs' previous activities in order to explain why the LGBTCC had decided to cancel the #WalkAway event; to wit: "we have learned that certain of the panelists announced for this event have made repeated, well- documented past statements that violate our mission, values and the spirit of inclusiveness for all individuals and identities that is core to our work and who we are." However, the cancellation notice did not mention those "repeated, well-documented past statements" any further. Instead, it stated that the LGBTCC had determined that #WalkAway's goals and values were so incompatible with its own that holding the #WalkAway event might "negatively impact people and/or organizations that use the LGBTCC, and/or cause conflict or interference with other LGBTCC programs." The remainder of the notice's four paragraphs were devoted to extolling the LGBTCC's own goals and values.
This Court believes that a "reasonable reader" would be likely to derive two things from the cancellation notice: 1) the information that the LGBTCC had cancelled the #WalkAway event; and 2) the LGBTCC's reason for doing so—i.e., that it considered that #WalkAway's mission and methods were incompatible with its own. Further, this Court finds that a "reasonable reader" would likely regard the former item (the cancellation) as a fact, and the latter item (the explanation for the cancellation) as a result of the LGBTCC's low opinion of #WalkAway, which is what drove its decision. This Court does not believe that a "reasonable reader" would likely understand the cancellation notice to convey any particular negative facts about #Walkaway, since it simply does not contain any.
The LGBTCC's subsequent Twitter posting says even less; merely informing the public that:
"Upon further review and consideration, the [LGBTCC] has cancelled the March 28 #WalkAway event. Full statement available at [LGBTCC website]."
In any event, because the court concludes that the cancellation notice contains an expression of the LGBTCC's opinion about #WalkAway, but not any actionable false statements, and because the First Amendment protects expressions of opinion from defamation claims, the court finds that plaintiffs' fourth cause of action must fail, as a matter of law.
Plaintiffs also sued for defamation based on the following:
Rosenberg's March 19, 2019 Tweet consisted of the following short statement: "Like are y'all that desperate for money? This is incredibly egregious that you'd host an event where panelists have used queer slurs and stood behind policies that put the community at great risk. Stand for something. SOMETHING."
The individual defendants first argue that "every single statement identified in the complaint is true or at the least substantially true." Plaintiffs respond that "defendants' statements are factually inaccurate and patently untrue." The individual defendants' reply papers restate their original argument, and cite to certain documentary submissions which, they assert, chronicle plaintiffs' alleged "queer slurs." …
Here, the individual defendants have presented documents which establish that: 1) plaintiffs Straka, Harlow and White were scheduled to be panelists at the cancelled #Walkaway event at the LGBTCC; 2) on October 22, 2018, Straka posted a Twitter comment that derided the terms "trans," "genderfluid," "genderqueer" and "non-binary" as "not real" and "leftist crap"; 3) on August 23, 2019 Straka posted another Twitter comment that used the pejorative term "gaystapo" in reference to the LGBTCC; 4) on November 29, 2018, Harlow posted a comment on Google's social media platform which equated the term "queer" with "fetishized dysfunction" and "emotional instability," and as a synonym for "worthless," "mildly insane," "obsessed," and "disparaging"; and 5) since January 2017, White has intermittently created and uploaded episodes of a video series entitled "Triggering Trannies" which features taunts of people who identify as "trans."
In this Court's view, all of these comments may be fairly described as "queer slurs" because they were clearly intended as insults. As a result, this Court finds that the individual defendants have demonstrated, by documentary evidence, that the assertion in Rosenberg's March 19, 2019 Tweet, that "panelists have used queer slurs," was a true statement. Because of this, New York law immunizes it against plaintiffs' defamation claim. Therefore, this Court grants the individual defendants' motion to dismiss so much of plaintiffs' fourth cause of action as is based on Rosenberg's March 19, 2019 Tweet.
Beeferman's March 21, 2019 Airtable post entitled "An Open Letter to the LGBT Center" (which Rosenberg also signed) is longer and more specific than Rosenberg's Tweet. The portions of it that are relevant to this motion to dismiss are as follows:
"The speakers booked for March 28th's Town Hall, Brandon Straka, Blaire White, Rob Smith, and Mike Harlow, espouse openly white supremacist, transphobic, xenophobic, and otherwise bigoted views that are dangerous to our communities. Straka, the organizer of the #WalkAway Campaign, has been on the programs of Tucker Carlson, Laura Ingraham, and Alex Jones, all of whom give credence to violently anti-immigrant, racist, sexist, and queerphobic ideologies. Straka and Harlow even appeared on Gavin McInnes's CRTV show to talk about #WalkAway two weeks after McInnes's violent Proud Boys gang attacked counter-protesters on the Upper East Side, kicking and punching young queers while yelling 'Faggot!'
"The stated goal of 'WalkAway' is to draw LGBTQI+ people to the right. However, as a cursory search of the speakers' public statements shows, they are far-right provocateurs who share responsibility for incitement to violence against trans people, black people, women, immigrants, Jews, and Muslims, and who publicly associate themselves with prominent, violent members of the 'Alt Right' white nationalist movement. What's more, their 'WalkAway' platform is the arm of a partisan propaganda machine which accuses their political opponents of supporting 'special rights' for gender and sexual minorities….
"Please see the link below for detailed documentation of their transphobic, Islamophobic, antifeminist, and racist incitement. Recent history from Christchurch to Charlottesville shows that giving a platform to such peddlers of hate empowers self-described white supremacists, sexists, transphobes, and homophobes, and encourages them to escalate their activity from hateful speech to physical violence against our communities. Giving a platform to these speakers is deeply irresponsible at this moment."
Here, this Court finds that the Open Letter contains … non-actionable opinion ….
In the first quoted paragraph of the Open Letter, Beeferman states that plaintiffs "espouse openly white supremacist, transphobic, xenophobic, and otherwise bigoted views that are dangerous to our communities." He then recites that plaintiffs have appeared on television shows hosted by Tucker Carlson, Laura Ingraham, Alex Jones and Gavin McInnes. The first statement clearly expresses Beeferman's opinion that plaintiffs hold views about LGBTQI+ people which he characterizes as "bigoted" and "dangerous." The second sentence recites that plaintiffs have publicly appeared on television shows where they have discussed those views with hosts who are known to share them. The first sentence expresses an opinion. The second sentence expresses a factual basis for that opinion. Taken together, they are a "statement of opinion which is accompanied by a recitation of the facts upon which it is based." As such, they are not actionable.
In the second quoted paragraph of the Open Letter, Beeferman states that plaintiffs "are far-right provocateurs who share responsibility for incitement to violence against trans people, black people, women, immigrants, Jews, and Muslims, and who publicly associate themselves with prominent, violent members of the 'Alt Right.'" It also states that #WalkAway is "the arm of a partisan propaganda machine which accuses their political opponents of supporting 'special rights' for gender and sexual minorities."
Leaving aside, for the moment, Beeferman's personal characterizations of plaintiffs as "far-right provocateurs" and of #WalkAway as "the arm of a partisan propaganda machine," the balance of the paragraph expresses Beeferman's opinions that: 1) as a result of their views, plaintiffs "share responsibility for incitement to violence against" certain minority groups; and 2) the "propaganda machine" that #WalkAway is a part of "accuses its political opponents of supporting 'special rights' for gender and sexual minorities." Although this paragraph does not supply a factual basis of the reason for Beeferman's opinions, as the preceding one did, this Court notes that the second paragraph is qualified by the portion of the Open Letter's last paragraph, which invites the reader to "[p]lease see the link below for detailed documentation of their [plaintiffs'] transphobic, Islamophobic, antifeminist, and racist incitement." … [A] "remark [which is ] is prompted by or responsive to a hyperlink …is 'accompanied by a recitation of the facts upon which it is based,' and therefore qualifies as 'pure opinion.'" Here, because the link in the final paragraph provides information to support the opinions alluded to in the second paragraph, this Court concludes that this portion of Beeferman's Open Letter is not actionable either, because it "does not imply that it is based upon undisclosed facts."
Returning now to Beeferman's personal characterizations of plaintiffs as "far-right provocateurs" and of #WalkAway as "the arm of a partisan propaganda machine," this Court is cognizant of the rule that "'[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in … circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.'" In the context of today's hotly debated political disagreements over LGBTQI+ rights, the court believes that it is only reasonable to expect the use of "epithets, fiery rhetoric or hyperbole," and that is what this Court deems Beeferman's ungenerous personal characterizations of plaintiffs to be. As a result, this Court finds that those statements do not constitute actionable defamation….
[4.] Plaintiffs also sued for breach of contact, but the court concluded that "plaintiffs' failure to produce the alleged contract or to plead which of its terms were breached and how, is fatal to its claim against the LGBTCC defendants."
The court's analysis looks correct to me (except that I haven't followed the breach of contract issue closely enough to speak to that).