The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Paul Alan Levy (Public Citizen) has the details:
Last summer, [Robert F. Kennedy Jr.] spoke at an August 29 rally convened by the German far right to protest government restrictions aimed at corralling the COVID pandemic. Kennedy was, apparently, the third choice speaker, after appeals from a rightwing group called Querdenken to Donald Trump and Vladimir Putin went unheeded. But when this group learned that Kennedy was coming to Germany for other reasons, it issued a public invitation and he responded. The German right waxed rhapsodic about the way in which Kennedy's presence was lending legitimacy to their activity.
The rally and his speech were widely covered in the mainstream media, which reported that his rally was heavily attended by neo-Nazis and that a variety of antisemitic and neo-Nazi factions had been involved in organizing the event. Kennedy was infuriated by this coverage of the audience to whom he had become connected by speaking at the rally. His position is that any neo-Nazis were at some other rally on the same day, and that Querdenken is a fine group unsullied by neo-Nazi or anti-Semitic ties. Our expert witness says otherwise.
Kennedy took no action against the New York Times, Wall Street Journal and others who took note of these connections. Instead, he directed his ire at what, I assume, he viewed as a defenseless target: DowneastDem, an otherwise obscure blogger on the Daily Kos who generally writes about German and Maine politics. This blogger wrote a post entitled "Anti-Vaxxer RFK JR. joins neo-Nazis in massive Berlin 'Anti-Corona' Protest," linking in turn to an eyewitness account in a major Berlin newspaper whose sub-headline mentioned the participation of neo-Nazis (English translation here). Kennedy responded by having a lawyer post a heated comment in the form of an open letter, denying the accuracy of the blog post and demanding that it be taken down immediately.
Kennedy Pursues a Subpoena in New York
When the blogger did not take the post down, Kennedy upped the ante, calling in a large firm, Boies Schiller Flexner, to file a pre-action petition for discovery to identify Kennedy's critic. The proceeding was filed in Kennedy's hometown court, Westchester County, New York, despite the fact that Daily Kos, owned by California company Kos Media, cannot be subpoenaed there, and despite the fact the New York has deliberately limited the reach of its long-arm statute to preclude defamation suits against alleged defamers who do not live in New York.
The petition was verified, not by Kennedy himself but by his lawyer, who swore on personal knowledge that the blog post was false, even though the lawyer had not been in Berlin and thus could not have personal knowledge of what had happened there. The local judge nevertheless authorized the issuance of a subpoena to identify DowneastDem, deciding that admissible evidence that the allegedly defamatory statements were false was not needed because under existing precedents in New York's Second Department, mere allegations of wrongdoing were enough to support issuance of a pre-litigation subpoena….
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