The Volokh Conspiracy
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Not Tortious to Try to Get Someone Fired
From Judge John Michael Vazquez's opinion in D'Ambly v. Exoo (D.N.J. Nov. 1):
In this case, Plaintiffs—purported far right activists—take aim at Defendant Christian Exoo—a purported far left activist—and others. It seems as though Plaintiffs want to express their views without a negative impact on other aspects of their lives. Similarly, it seems like Exoo wants to criticize Plaintiffs because of their views and try to get Plaintiffs fired from their jobs. The general question raised here is whether Exoo's communications about Plaintiffs crossed a legal line into unlawful action….
Plaintiffs brought suit after Defendant Christian Exoo identified Plaintiffs as fascists or white supremacists, and "doxed" them on Twitter. Doxing refers to "publicly disclos[ing] a person's identity, employer, school, home address, etc., for the purpose of causing harm to that person." Plaintiffs allege that when doxing individuals, Exoo does not act alone. Rather, Plaintiffs allege that Exoo directs a group, which includes Exoo's employer, [St. Lawrence University]; Twitter; Gadde, Twitter's Head of Legal, Public Policy, and Trust and Safety Lead; and multiple unidentified individuals, who presumably are at least some of Exoo's Twitter followers.
Plaintiffs allege that Exoo and his associates work to identify neo-Nazis, fascists, and white supremacists. After learning their personal identities, Exoo doxes the individual using the Twitter handle @AntiFashGordon. Exoo also directs his associates to call, email, and send Tweets to the individual's employers, co-workers, and school administrators to get the individual fired or expelled from school. Plaintiffs allege that after being identified and doxed by Exoo and his associates, they received violent threats, their homes or personal items were vandalized, and they were terminated from their jobs. The Court discusses more specific allegations in the analysis section below.
D'Ambly filed suit on September 21, 2020, after he was doxed by Exoo and terminated from his job at the New York Daily News …. His thirteen-count Complaint largely addressed the alleged doxing campaign through federal and state RICO claims, tort claims, and claims alleging violations of federal and New Jersey criminal statutes….
The court rejected plaintiffs' claims against Exoo on various grounds, including this:
D'Ambly alleges that Exoo intentionally interfered with his prospective economic benefit. D'Ambly indicates that Exoo's interference caused D'Ambly's employer to terminate his employment….
"[I]t is generally recognized that a party may not be liable for tortious interference for merely providing truthful information to one of the contracting parties." … Through the Tweets, Exoo allegedly publicized that D'Ambly is a fascist and a white supremacist. D'Ambly does not outright deny either allegation. Instead, D'Ambly avers that he is a member of the New Jersey European Heritage Association ("EHA"). Other than indicating that the association is a "non-violent, pro-domestic policy organization," Plaintiffs fail to indicate any specifics about the EHA.
Exoo, however, provides relevant Twitter threads as exhibits to his motion to dismiss, which demonstrate that the EHA adheres to white supremacist views. For example, the Twitter thread points out that EHA's website includes the "14 words" slogan, which is a phrase used frequently amongst white supremacists, and that its YouTube page contains antisemitic images, including the Swastika. Moreover, in the Amended Complaint, D'Ambly admits that there are videos of him "using imprudent language during political rallies." In short, it does not appear that D'Ambly is claiming that Exoo defamed him or otherwise spread false information about D'Ambly.
D'Ambly also indicates that Exoo retweeted information about D'Ambly and an "It's okay to be white" march. This information appears to focus on D'Ambly's activities outside of work. The information is also not alleged to be false. Similarly, D'Ambly asserts that his employer conducted its own investigation into D'Ambly's activities, and its investigatory report included videos of D'Ambly "using imprudent language during political rallies." As pled, the Amended Complaint appears to indicate that the information came from his employer's investigation rather than from Exoo.
Critically, D'Ambly often uses conclusory terms as to alleged improper conduct, such as "threatening Tweets[,]" "death threats[,]" and "threats of physical violence[.]"Likewise, D'Ambly alleges that Exoo directed his associates to send "harassing, intimidating, and threatening phone calls and Tweets" to the Daily News to get D'Ambly fired. But these conclusory allegations and labels are not entitled to the presumption of truth. The doxing thread itself does not include such instructions.. Thus, as pled, Plaintiffs fail to sufficiently allege any wrongful conduct.
D'Ambly makes two allegations that demand closer scrutiny. First, D'Ambly indicates that on January 11, 2019, Exoo tweeted "Regardless, I'm gonna spend the next week wrecking your f-----g life, Dan D'Ambly" in response to an EHA Tweet. Exoo's statement certainly reflects an intent to take imminent action against D'Ambly. D'Ambly adds that the same night, his car was vandalized; his vehicle was "keyed," and its tires were slashed. As a result, D'Ambly demonstrates a strong temporal connection between Exoo's statements and unlawful activity. But the activity is not related to D'Ambly's employment, and D'Ambly's termination forms the basis for Count II.
Second, D'Ambly asserts that on January 11, 2019, a Tribune executive "delivered recordings of the death threats to the Daily News. The callers threatened D'Ambly and stated the Daily News was responsible for 'any violence or blood spilled is also on your hands.'" As to the alleged "death threat," the Court has already found that the conclusory term is not entitled to the presumption of truth. D'Ambly also does not indicate when the calls were actually made. The reference to any violence or blood spilled could support a finding of wrongful and intentional interference, but more factual support is needed. It is not clear to the Court whether the callers were referring to D'Ambly's blood being spilled or violence as to him, to D'Ambly engaging in violence, or to some other activity or persons. Consequently, this allegation does not sufficiently allege wrongful conduct.
In sum, D'Ambly's tortious interference claim is not plausibly pled. Presumably, D'Ambly has, or knows the content of, the threats and other allegedly improper activity. D'Ambly will have to provide more factual support in his amended pleading….
The court also rejected D'Ambly's allegations of "intrusion upon seclusion," a form of invasion of privacy:
In Count III, D'Ambly pleads a claim for intrusion upon seclusion because Exoo directed and carried out efforts to publicize private information about D'Ambly…. "To establish a prima facie claim for an invasion of privacy by an unreasonable intrusion upon the seclusion of another, a plaintiff must demonstrate: (1) an intentional intrusion; (2) into the solitude, seclusion, or private affairs of another; (3) that is highly offensive to a reasonable person." … "The thrust of this aspect of the tort is, in other words, that a person's private, personal affairs should not be pried into. The converse of this principle is, however, of course, that there is no wrong where defendant did not actually delve into plaintiff's concerns, or where plaintiff's activities are already public or known." …
D'Ambly alleges that "Defendant Exoo publishes Tweets and doxes other persons private and undisclosed information." D'Ambly further claims "enterprise associates stalked D'Ambly to uncover his true identity." With the exception of the pejorative and conclusory word "stalked," D'Ambly fails to assert any facts indicating that Exoo (or his associates) used anything other than public and permissible means to identify him.
D'Ambly indicates that on October 29, 2018, Exoo "publicly disclosed for the first time D'Ambly's name, hometown, photograph, employer, occupation, employer's location, multiple telephone numbers for his employer, a labor union Referendum Board he chaired, and the names of the other Referendum Board members." But D'Ambly fails to adequately allege that the information was acquired by wrongful means. For example, D'Ambly does not indicate that such information was not publicly available or that he took steps to ensure that some or all of the information remained private. See Stengart v. Loving Care Agency, Inc. (N.J. 2010) (explaining that the plaintiff subjectively had a reasonable expectation of privacy to personal emails that she exchanged with her attorney on her work laptop with a password protected, personal email account); Ehling v. Monmouth-Ocean Hosp. Serv. Corp. (D.N.J. 2012) (denying intrusion upon seclusion claim involving allegation that the plaintiff's supervisor accessed postings on her Facebook "wall" that could be viewed only by her Facebook friends). Indeed, it appears that not only was D'Ambly an admitted member of EHA, but that he also "actively participates with other EHA member in political rallies, peaceful political protests, pamphleteering, and speech[.]" Such public activity by definition does not reflect D'Ambly's solitude, seclusion, or private affairs….
The court also dismissed plaintiff's negligent entrustment claim against Twitter, and his breach of the implied covenant of good faith and fair dealing with Twitter.
The analysis in the opinion strikes me as quite right. I'm not sure whether suing someone for urging an employer to fire an employee might be tortious—on a solicitation theory (see pp. 989-97 of this article)—if the firing would have been illegal [UPDATE: or a breach of a binding contract]. (Solicitation of a tort is indeed generally tortious, see Restatement (Second) of Torts § 876.) And indeed the law of New York, where D'Ambly was employed, does restrict firing employees for lawful noncommercial recreational activities (see pp. 311-12 of this article); perhaps if D'Ambly's activities were seen as "recreational," the firing would be illegal and asking for the firing would be tortious. (Likewise, in many states, firing someone for political activity is illegal.) But this solicitation-of-a-tort theory doesn't seem to have been raised in this case.
