The Volokh Conspiracy
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From the opinion by Judge John Koeltl (S.D.N.Y.) in Chinese Americans Civil Rights Coalition, Inc. v. Trump, just docketed today:
The complaint alleges that, in a number of statements, the defendant dubbed the SARS-CoV-2 virus the "Chinese virus" and "kung flu," among other names. The complaint does not allege that any statement was made in New York, although it alleges that many statements were made in tweets or press conferences. The complaint alleges that these statements were factual and defamatory, and that they "exposed Chinese/Asian Americans, to public discrimination, hate, contempt, ridicule, verbal abuse and physical violence as reported in many incidents across the country." The complaint alleges that there has been an "increase in anti-Asian incidents," including in New York, and identifies certain such incidents.
The court concluded that it lacked personal jurisdiction over Trump, given the relatively narrow New York "long-arm" statute (which might be called "short-fingered" rather than "long-arm"). But it also rejected the claims (for defamation and infliction of emotional distress) on the merits:
To state a claim for defamation under New York law, a plaintiff must allege, among other elements, a statement that is "of and concerning" the plaintiff. However, "[u]nder the group libel doctrine, when a reference is made to a large group of people, no individual within that group can fairly say that the statement is about him, nor can the 'group' as a whole state a claim for defamation." The group libel doctrine thus defeats the "of and concerning" element of a defamation claim. The group libel doctrine can be overcome only by a showing that the "the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference to the member."
In this case, the plaintiff alleges that the defendant described the SARS-CoV-2 virus as the "Chinese virus," among other names. On the plaintiff's own allegations, the phrase refers to at least 22.9 million individuals. It is thus "a reference … to a large group of people," and the plaintiff has made no showing that "the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference" to any particular member. The plaintiff's allegations therefore cannot support a claim for defamation [on behalf of its members] under the group libel doctrine.
The plaintiff organization also plainly does not allege a defamation claim on its own behalf, given that the complaint contains no allegations that the defendant made any statements about the plaintiff organization, and indeed the plaintiff organization was founded after all of the statements in the complaint were allegedly made. Accordingly, the complaint fails to state a claim for defamation of the plaintiff or of the plaintiff's members….
[T]he plaintiff has [also] failed to state a claim for either intentional or negligent infliction of emotional distress. The elements of intentional infliction of emotional distress are "(l) extreme and outrageous conduct; (2) the intentional or reckless nature of such conduct; (3) a causal relationship between the conduct and the resulting injury; and (4) severe emotional distress." The same test of extreme and outrageous conduct has also been applied to causes of action for negligent infliction of emotional distress. Negligent infliction of emotional distress also may be alleged on a "bystander" theory when a person is "threatened with physical harm as a result of defendant's negligence[,] and consequently … suffers emotional injury from witnessing the death or serious bodily injury of a member of her immediate family"; or on a "direct duty" theory when a plaintiff "suffers an emotional injury from defendant's breach of a duty which unreasonably endangered her own physical safety." …
As an initial matter, the plaintiff's claims for intentional and negligent infliction of emotional distress fail because they are based on the same alleged statements that give rise to the claim for defamation. They are therefore duplicative of the claim for defamation, and should be dismissed on that basis….
The claim for intentional infliction of emotional distress fails for the additional reason that the conduct alleged by the plaintiff is not so extreme or outrageous as to be covered by the tort of intentional infliction of emotional distress. The remarks at issue referred to the geographical origin of the virus rather than the responsibility of the millions of Asian Americans who had nothing to do with the virus. To fall within the ambit of the tort, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The comments in this case fall well short even of the language that courts have found insufficiently extreme or offensive to support an infliction of emotional distress claim….
The claim for negligent infliction of emotional distress fails because the conduct alleged does not rise to the level of extreme and outrageous conduct that has been found sufficient to justify liability, and the plaintiff has failed to assert sufficient allegations to assert a claim under the "bystander' theory or the "direct duty" theory….
Finally, the plaintiff's claims for intentional or negligent infliction of emotional distress fail for the additional reason that imposing liability for the alleged statements would violate the First Amendment. In Snyder v. Phelps (2011), the Supreme Court held that even where extreme and outrageous speech on a matter of public concern causes emotional distress to another, the First Amendment bars recovery in a civil damages action for the intentional infliction of emotional distress. "In public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate 'breathing space' to the freedoms protected by the First Amendment." No matter how deplorable the plaintiff finds the defendant's remarks, the First Amendment precludes civil liability for the remarks in order to protect the right to free and robust debate on matters of public concern, which the origin of the SARS-CoV-2 virus plainly is….