RFK Jr. Sues to Identify Blogger Critic

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….

Read here for more.

Comments

[AmosArch]

'FAR RIGHT' = Believes in no more than 54 genders

[Martinned]

Interesting. Usually it's Republicans who speak at European far right events.

https://www.washingtonpost.com/world/2021/10/12/republican-alliance-europe-far-right/

[Michael P]

Horseshoe theory is sustained once again.

[Martinned]

Sort of. I'm not sure Mike Pence is supposed to be at the end of any horseshoe...

[Dan Schiavetta]

RFK Jr has long been a nut case.

[santamonica811]

"...His position is . . . that Querdenken is a fine group . . .

Any relation to Turducken?

[VinniUSMC]

That's probably where the confusion comes from.

[Martinned]

Yes, haha, foreign languagues are funny.

[santamonica811]

Well, my point was more that English is a funny language (and, of course, is "foreign" to a huge majority of the world). Any language that allows a monstrosity like "turducken" to exist can't be all good.

(I didn't find anything funny about Russian...it has, relatively-speaking, almost zero weird pronunciation oddities. German is funny solely due to its ability to make extended compound words out of pretty much anything. But English is in a league of its own. Impossibly inconsistent pronunciation "rules." Same for spelling. It's just a really strange language, and I can't imagine trying to learn it as a second language. You guys in Europe who manage to pick up 3-8 languages [effortlessly, it seems], are incredibly impressive in this aspect.)

[Brett Bellmore]

Famous quote by a writer: "The problem with defending the purity of the English language is that English is about as pure as a cribhouse whore. We don’t just borrow words; on occasion, English has pursued other languages down alleyways to beat them unconscious and rifle their pockets for new vocabulary."

[Gandydancer]

For convenience, here's the denial:

August 30, 2020...

Barbara Morrill
Managing Editor
Daily Kos
...
Re: False and Defamatory Statements Contained in August 29, 2020, Article and Demand that Daily Kos and Kos Media, LLC Immediately and Permanently Cease and Desist from Further Publication

Dear Ms. Morrill,

I write on behalf of my client Robert F. Kennedy, Jr. in reference to your August 29, 2020, article,”Anti-Vaxxer RFK, Jr. joins neo-Nazis in massive Berlin 'Anti-Corona' Protest.” The headline and many of the statements in the article are untrue and enormously damaging, and therefore defamatory. In particular, your assertion that “[t]he protest was organized by right-wing extremist organizations- including the AFD party and various anti-Semitic conspiracy groups as well as the neo-Nazi NPD party” is utterly untrue.

Mr. Kennedy went to Berlin for the inaugural meeting of Children’s Health Defense Europe, CHD’s first international chapter. In addition, he gave a speech at the protest for peace and freedom on August 29, 2020, initiated by the initiative “Querdenken 711”. The Querdenken movement is a broad-based, peaceful citizens’ movement for freedom, peace and human rights. Among the speakers were doctors, lawyers, clergy of every persuasion, soldiers, police officers, parents, children, world-famous athletes, a regional politician from the Green Party, human rights initiatives, non-profit associations, and associations for the protection of children. As usual, Querdenken took great pains to assure that extremists from every position were excluded—to every extent possible—from the Berlin event that Querdenken organized. Those efforts were successful. This complete absence of extremist influence is evident from the program, from all the footage publicly available on the Children’s Health Defense website, on Mr. Kennedy’s social media, and in the thousands of photos and videos of the event easily viewed on various platforms of the internet. Any respectable reporter who was interested in accuracy could easily check these sources.

Mr. Kennedy’s speech was a screed against Nazism. There was no evidence of Nazi iconography anywhere near the protest. The principal stage ornament was a giant mural of Mahatma Ghandi, who is hardly known as a Nazi hero. The event’s Master of Ceremonies was a Black African born in Ghana. The musical performance included an Indian Hare Krishna monk. The banners were rainbows, peace signs, BLM insignias and the flags of every nation in Europe. The speakers and audience were racially and religiously diverse. The fact that the erroneous nature of your inflammatory “fake news” was so easily discernible attests to your malicious intent. By tarring Mr. Kennedy with Nazism and anti-Semitism, you have covered two of the three most damaging accusations that anyone can levy at a public figure. Every minute you leave this charge online, un-retracted, and every share, imposes untold damage to Mr. Kennedy and his organization.

I urge you in the strongest possible terms to take down this false, defamatory article immediately and to issue an appropriate apology to Mr. Kennedy. Only by taking these steps will you avoid the need for legal action. Thank you in advance.

Very truly yours,

P. Kent Correll

[Gandydancer]

Since EV has chosen to give us only Public Citizen's take on this matter I take it that he is sympathetic to that position.

It strikes me as tendentious, so there's that. Somehow JFK Jr is supposed to have done something wrong by filing in Westchester, but I'm not seeing it. Presumably the DK could have offered to prove to the judge (alone) that DowneastDem is not a New Yorker if, indeed, "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." Has DK not done this?

I noticed that D Kos says that DowneastDem is published by DK without pre-publication editorial supervision.

I could dig out EV's brief supporting a previous attempt by a blogger to keep his identity secret, but maybe someone else has it to hand.

[Doug Heffernan]

Your focus is on a procedural matter; whether or not Jr filed in the correct jurisdiction. What about the substance?

DowneastDem's piece is six sentences long, not including the block quote from Der Tagesspiegel.

Jr's attorneys highlight one of the six sentences as especially false and defamatory. Is it especially false, in an “actual malice” sort of way?

Daily kos has some links about the history of the case within the piece linked below;

https://www.dailykos.com/stories/2021/5/25/2031959/-RFK-Jr-cavorts-with-Nazis-and-suing-Daily-Kos-won-t-make-that-any-less-true

[Darth Chocolate]

Don’t you know that process trumps substance?

Every time.

[Gandydancer]

I focused on the procedural question because EV's quote from Levy contained little other than that plus a bunch of here-unsubstantiated assertions about how RFK Jr Is Literally Hitler. Which is why I looked at the demand letter for the other side of the case, which EV had notably failed to provide, for the RFK Jr side of the account.

What this reminded me of was the Reagan-is-a-Nazi smear on the basis that he'd visited a Geman cemetary containing the bodies of Waffen SS.

Also, the complaint about procedure seemed dubious: I'll repeat my question about the filing in Westchester that if NY law doesn't support defamation suits against non-NY parties, why didn't The Daily Kos offer the judge proof of that fact, rendering discovery moot?

As to whether the quote demonstrated actual malice I would have to read the blogger's source and other material easily available to him to see whether, as claimed, “'[t]he protest was organized by right-wing extremist organizations- including the AFD party and various anti-Semitic conspiracy groups as well as the neo-Nazi NPD party' is utterly untrue". RFK's lawyer certainly makes a case for reckless disregard of easily discovered facts.

Returning to Levy's complaint, did the NYT or WSJ take the line of the DowneastDem's smear?

[David Nieporent]

It's RFK Jr. JFK Jr. flew his plane into the ocean a couple of decades ago.

[Gandydancer]

Thanks. I knew that, but typos happen.

[Bob from Ohio]

"Somehow JFK Jr is supposed to have done something wrong by filing in Westchester, but I'm not seeing it."

DailyKos has no office in NY. Forcing an out of state person to defend in a court 3000 miles away is wrong, even if is a bottom feeding horror like DailyKos.

[Gandydancer]

The trashy state of the courts in California anyway obviates that complaint, as far as I'm concerned. Not that NY is likely to be much better. The suit, anyway, is against DowneastDem who, if Levy is right that NY law bars deamation suits against out-of-state parties, is, as I've already observed, strangely silent about his ability to claim that exemption.

[Kenneth Almquist]

The argument by DowneastDem's lawyers that Kennedy has to prove that DowneastDem is a New York State resident (or is otherwise subject to the jurisdiction of New York's courts) before he can learn the identity of the blogger seems wrong. I found an article by Nancy B. Levitin and Jeffrey R. Neuman about pre-action discovery in New York. It can be used when you have a cause of action but need more information to file a complaint. The most common use is to identify a defendant. If you don't know the identity of the defendant, you don't need to establish that you have a cause of action regardless of the identity of the defendant. If there were a rule saying that you had to establish that the court had jurisdiction over the defendant even when you didn't know the identity of the defendant, that would be a big hurdle that I'm sure Levitin and Neuman would have discussed.

On the other hand, the purpose of pre-action discovery is to gain enough information to allow filing a complaint. A petition for pre-action discovery that doesn't explicitly state an intent to file suit in the court that the petition is addressed to should be rejected by New York courts. It seems to me that if the statute of limitations for filing suit in New York has expired, the subpoena should go away because it's clear Kennedy no longer has any intent to file suit, at least in New York. Indeed, DowneastDem's lawyers write, “Because Kennedy has deliberately not sued DowneastDem as a pseudonymous defendant, if New York law is the governing authority, the statute of limitations has expired—yet another reason why Kennedy’s subpoena should be quashed.” But they make this argument in a footnote in their response to Kennedy's reply to the motion to squash, so presumably they've concluded that this line of argument will not work.

DowneastDem's lawyers spend a lot of time arguing that Kennedy has not demonstrated that he was defamed. I'm not sure whether this will be persuasive at this point in the proceedings, but unless Kennedy can come up with some evidence that casts serious doubt on the truth of DowneastDem's posts, he would have been better off ignoring them.

[Gandydancer]

Indeed, if RFK can't prove that “[t]he protest was organized by right-wing extremist organizations- including the AFD party and various anti-Semitic conspiracy groups as well as the neo-Nazi NPD party” he would have done better to have ignored the claim, but the fact that he hasn't says to me that it's probably provably false.

"A petition for pre-action discovery that doesn't explicitly state an intent to file suit in the court that the petition is addressed to should be rejected by New York courts." Is this a merely imagined flaw or have you seen the petition?

There's a hint in Levy's screed, IMHO, that he's maybe conflating Neo-Nazis organizing to show up at Querdenken's rally with Neo-Nazis organizing it.

The post is dated 8/29/20. Does the pretrial discovery demand satisfy the statute of limitations? And... it's a year or less to file suit?

[Gandydancer]

At the time I wrote the above I hadn't seen that Levy had walked back DowneastDem's claim, reframing it as "an event to which neo-Nazi parties and groupings had successfully summoned their members", which I take as an admission that "[t]he protest was organized by" is a falsehood.

[Kenneth Almquist]

Pre-action discovery doesn't extend the statute of limitations. You can file against an unidentified defendant if the pre-trial discovery doesn't allow you to determine the identity of the defendant before the statute of limitations expires. Levitin and Neuman warn that in this case, the plaintiff “would need to demonstrate due diligence under CPLR §1024 and petition for a good cause extension of time to serve under CPLR §306-b.”

I did not read the petition for pre-action discovery myself. I assume that the petition contained a statement of intent to file suit because (1) one of the other court papers referred to such a statement and (2) if the petition did not contain such a statement, the petition would have been rejected. My point is that it is clear that Kennedy no longer has any intent to file suit in New York, so the conditions that justified granting the petition no longer exist.

[apedad]

Public Citizen asked the question I bet we're all thinking:

What Was Kennedy Thinking?

It is hard to figure out just what Kennedy hoped to accomplish by beginning this proceeding. He does not appear to have any intention of actually bringing a lawsuit against DowneastDem, because he could very easily have sued the blogger as a Doe defendant (and as we read New York law, that is the only way he could have avoided having the statute of limitations expire during the trial court litigation over his subpoena plus the inevitable appeal). But bringing such a lawsuit would expose him to an anti-SLAPP motion.

Nor has Kennedy filed a defamation action against the large media entities that also reported that he spoke at an event to which neo-Nazi parties and groupings had successfully summoned their members. He is proceeding only against someone whom he likely expected would have less resources for defense than the large media entities that reported much the same information.

Beyond that, it is apparent that Kennedy finds it infuriating that someone could criticize him anonymously – that was the tenor of his vituperative blog post after Public Citizen entered the case, and it was central to his lawyer’s response when I first contacted him to let him know that we would be entering the case to quash the California subpoena. But the right to speak anonymously is well established as First Amendment principle, and California – where Kennedy would inevitably have to come to compel Kos Media to disclose information – has long held that the First Amendment right to speak anonymously protects against subpoenas from a plaintiff claiming that speech was wrongful, unless the plaintiff can produce both legal argument and evidence showing that the plaintiff has a sound legal claim that has a realistic chance of success on the merits.

Even apart from the name-clearing aspects of threatening to bring a libel claim, what could Kennedy do to our client if he does not intend to file an actual defamation lawsuit? He could doxx her, and then turn the fury of his followers loose on her, potentially injuring her socially and financially. (Note that after he published the diatribe against Public Citizen for its role in this case, we promptly received complaints from his followers.)

Beyond that, Kennedy’s non-profit group has written about this case several times, even though on its face the case has no bearing on the issues that Children’s Health Defense purportedly pursues. Presumably, Kennedy believes that, by portraying himself as a victim, he presents himself as a martyr for his cause and appeals to his base for more donations. In fact, one of the Children’s Health Defense blog posts about this case indicated that it was “CHD lawyers” who are pursuing the litigation on Kennedy’s behalf.

[David Nieporent]

Just to address the last paragraph of Public Citizen's comment: Kennedy has decided that this is all a conspiracy by Big Pharma to discredit him. He's an utter loon, of course, but this is nothing new; he's been an anti-vax nutter for decades, not merely just being anti-science in terms of his view of vaccines, but a conspiracy theorist arguing that the FDA and Big Pharma are out to get people.

[Gandydancer]

Do you know how to use blockquote? It would have made much clearer that your post is almost entirely a quote from Public Citizen.

No, the question that you bet we're all thinking is mopstly being asked, rhetorically I presume, by Team Stupid.

Even Levy writes, "...apart from the name-clearing aspects of threatening to bring a libel claim..." So what's left to ask?

"Note that after he published the diatribe against Public Citizen for its role in this case, we promptly received complaints from his followers." Poor, poor Public Citizen. Reminds me of the President and Dean at Yale whining about the internet backlash rather than focusing on the egregious behavior of their minions threatening a student with loss of his carer and lying about what he wrote.

The supposed statute of limitations expiry ("as we read New York law") has apparently gone nowhere.

"...the case has no bearing on the issues that Children’s Health Defense purportedly pursues."
Really? https://childrenshealthdefense.org/action/stop-mandatory-vaccinations-in-k-12-schools/ Smearing RFK as a Nazi when he advocates what he, representing CHD, advocates and what CHD itself advocates certainly seems to have "bearing" to me.

As Brett notes the reason fior filing against The Daily Kos rather than the NYT and WSJ may simply be that their articles didn't lie by implication.

My first reaction to EV's quote was that Levy came across as probably a dishonest lying shit, and your quote from him only makes the impression stronger.

[Gandydancer]

This ^^^^^ was of course a response to apedad's posting of Levy, not to Nieporent's fact-free blovations.

[David Nieporent]

My bloviation are never fact free.

I don't feel the need to prove that RFK has been an anti-vax nutter for decades, but the notion that this current situation is all a conspiracy by Big Pharma can be found right on his website. He characterizes Public Citizen's involvement in the case as "Public Citizen’s decision to take Pharma’s side in the lawsuit," despite the fact that the lawsuit is actually RFK vs. some random Daily Kos blogger.

[Gandydancer]

Whatever it was under Nader Public Citizen is here defending trashy and false guilt by association nonsense, as we all can see.

It's precisely the "anti-vax nutter for decades" part that needs more than your bloviating say-so.

[santamonica811]

Well, he's been anti-vaxx for decades. Is your point that you disagree with, or dispute, this assertion? Or is your point, instead, that one should not automatically equate "anti-vaxx" with "nutter?"

I'm asking a non-snark question. I think Kennedy himself would proudly wear the "been against mandatory vaccinations for decades" hat...he genuinely thinks he's on the right side of history, here. He, of course, entirely disputes the "nutter" label . . . as do all the anti-vaxx idiots. Their mental and/or psychological and/or cognitive disabilities allow them to make their arguments in 100% good faith.

[Brett Bellmore]

I'll agree that he's both anti-vaxx, (Really anti-vaxx, not just anti-mandate.) and a nutter.

He's just an anti-vaxx nutter who didn't attend an event organized by neo-Nazis.

[Gandydancer]

I know what "anti-vaxx" used to mean, and I also know that it is now used as an epithet to describe anyone who isn't enthusastic abou mandatory Jabbing, which is not the same thing. So when you say of RFKJr that "he's been anti-vaxx for decades" your meaning is determinedly indeterminate.

I repeat, it's precisely the "anti-vax nutter for decades" part that needs more than your bloviating say-so.

[Brett Bellmore]

"Nor has Kennedy filed a defamation action against the large media entities that also reported that he spoke at an event to which neo-Nazi parties and groupings had successfully summoned their members."

Why would he? That much is true.

There's an effort going on to force deplatforming of anybody the left doesn't like, by use of guilt by association. If you don't deplatform a member of group X, you're, by the magic of contagion, also a member. Just by virtue of not expelling them when they show up at a public event.

Apparently it's the claim that the event was organized by the neo-nazis that he's claiming is defamatory, not that they attended.

I don't have a lot of respect for Kennedy, but this sort of guilt by association defamation IS becoming a problem.

[OtisAH]

Spot on. We’ve gone too far when a person can’t even speak to groups of neo-Nazis and other anti-semites/white supremacists without getting attacked for it…

[Brett Bellmore]

Yeah, thanks for demonstrating the technique: If you organize an event, and any neo-Nazis show up, it's "a group of neo-Nazis"; Guilt by association.

[OtisAH]

“The technique.” You’re such a tool. From the reports, there’d be no crowd without the neo-Nazis and other anti-semites and white supremacists. It was an event organized for them, if not by them. The “guilt by association,” which you’ll be surprised to learn (and probably deny) was not invented in the last few years or by The Left, and criticisms are well-deserved and earned. And not by SJC’s or anyone else not named RFK, Jr.

[Gandydancer]

"From the reports, there’d be no crowd without the neo-Nazis and other anti-semites and white supremacists."

Link for the claim? (Not behind a paywall. I don't finance enemies.)

Or by "reports" do you mean slur-enhanced fact-free regurgitations of less-than-half truths like that by DowneastDem?

[David Nieporent]

There's an effort going on to force deplatforming of anybody the left doesn't like

Yes; it's a shame how they keep trying to slap the meaningless label "CRT"¹ on books and ideas and then ban those things and the people who talk about them.

¹It's not literally meaningless; it's just meaningless as the right uses it. It just refers to anything that the right doesn't like that in any way potentially touches upon race.

[Gandydancer]

Tranny graphic novel "autobiographies" don't fit in the category "touches upon race", so there's that.

[OtisAH]

A similar thing happened to our Rotary Club christmas party three years ago. Neither Musk or Zuckerberg even responded to our invitations to speak so we settled for our third choice, the owner of the very popular “L’Eggs Dining and Entertainment” (21 and older).

[Rev. Arthur L. Kirkland]

Could this be another movie-related misfire . . . a Curb Your Enthusiasm bit gone wrong?

I always wondered about Cheryl.

[Ridgeway]

This story, and the accompanying comments, are one of the more impressive "baptists and bootleggers" scenarios I have seen in a while.

My personal view:

1) If you find yourself agreeing with RFK Jr., you should closely re-examine your position.
2) If neo-nazis are wont to show up at your events, you should closely re-examine your position.

[Gandydancer]

I agree with RFK that he was lied about, b/c that's what the evidence (and Levy's admission) shows.

As Reagan said about support of him by, I think it was, the John Birch Society: ~"They support me. I don't support them."

Neither implies any need to reexamine anything, and it's facile dumbness to pretend otherwise.

[Zarniwoop]

Holy Streisand effect, Bat-person!

[Gandydancer]

You keep trying to assume your false conclusion, but that's not going to fly.

[Ruqt]

Readers seeking more perspective on the event in question may want to peruse BBC and Daily Beast articles which appear to suggest that Kennedy was on notice. Note he refused to respond to Daily Beast query. Also note, his organization featured an anonymous letter about the protests prior to his invitation and attendance. Anonymity for my followers but not for others.

https://www.bbc.com/news/world-europe-53959552

https://www.thedailybeast.com/rfk-jrs-latest-anti-vaxx-stunt-backed-by-weird-pro-qanon-german-group-querdenken-711