The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Weisenbach v. Project Veritas, decided today by Erie County (Pa.) Court of Common Pleas Judge Marshall Piccinini:
Project Veritas is a non-profit media organization founded by James O'Keefe, III. On November 5, 2020, just two days after the November 3, 2020, presidential election, it published a story claiming to have uncovered a voter fraud scheme orchestrated out of the United States Postal Service General Mail Facility in Erie, Pennsylvania. Specifically, the article and accompanying video alleged that Erie Postmaster, Robert Weisenbach, directed the backdating of mail-in ballots in order to sway the outcome of the presidential election in favor of candidate Joseph Biden. The report relied upon an anonymous whistleblower, later revealed to be Richard Hopkins, a postal employee who claimed he overhead a conversation between Weisenbach and another supervisor. Hopkins stated that Weisenbach's motive for backdating mail-in ballots was that he was a "Trump hater," although, in reality, Weisenbach was a supporter of President Donald Trump and voted for him on election day.
In the days that followed, Project Veritas posted two more video interviews with Hopkins where he repeated his false claims, the latter after it was reported by news outlets that Hopkins had recanted his earlier allegations when confronted by postal inspectors, although Hopkins later claimed that recantation was coerced. The story soon gained traction among those amplifying claims of voter fraud, including President Trump himself. Weisenbach was forced to leave Erie for a time after personal details, including his address, were discovered and disseminated by readers of the Project Veritas stories. Project Veritas nonetheless maintains that the stories were investigated and published consistent with standards of "professional, ethical and responsible journalism."
Weisenbach disagrees. He brings this lawsuit against Hopkins, Project Veritas, and O'Keefe, alleging claims of defamation and concerted tortious activity. Defendants now seek to dismiss the claims before discovery has even begun by filing Preliminary Objections to Weisenbach's First Amended Complaint. That parties frame the action in broad terms as implicating competing ideals lying at the heart of our republic. Weisenbach argues that the stories were "not investigative journalism[,]" but rather "targeted character assignation aimed at undermining faith in the United States Postal Service and the results of the 2020 Presidential election" having "no place in our country." Defendants contend that this case raises fundamental concerns regarding freedom of the press, and that, pursuant to the First Amendment to the United States Constitution, we rely not on judges or juries to root out pernicious speech, but on competition in an uninhibited marketplace of ideas where the truth will ultimately prevail.
Whatever the merits of these lofty assertions, the Court's task today in reviewing Defendants' Preliminary Objections is much more modest. First, the Court must decide whether it lacks subject matter jurisdiction over the claims against Hopkins in light of the Federal Tort Claims Act, which vests federal courts with exclusive jurisdiction over actions brought against federal employees who cause injury while acting within the scope of their employment. Second, in assessing Defendants' Objections in the nature of demurrers, the Court must simply determine "whether, on the facts averred, the law says with certainty that no recovery is possible." For the reasons that follow, the Court answers both of those questions in the negative and consequently overrules Defendants' Preliminary Objections to the First Amended Complaint….
It is apparent that the parties perceive the events of the days following the 2020 presidential election through wildly different lenses. Today's Opinion recounts those days through the eyes of Robert Weisenbach. [This is because in deciding a motion to dismiss, the court must assume the accuracy of a plaintiff's plausibly pleaded factual assertions. -EV] As he sees it, Richard Hopkins was acting well outside the scope of his employment when he supplied false claims of mail-in ballot backdating to Project Veritas, and so, jurisdiction over the claims now levied against him does not lie exclusively in federal court pursuant to the Federal Tort Claims Act.
Likewise, Weisenbach's averments are legally sufficient to make out claims of defamation and concerted tortious activity against all Defendants, even under the demanding actual malice standard. Whether Weisenbach will be able to offer adequate evidence to support his claims, and whether a jury would ultimately be willing to credit such evidence after hearing both sides of the story, remains to be seen. For now, it is enough to hold that the averments set forth in the Amended Complaint are sufficient as a matter of law to permit the action to proceed to discovery, where the truth of these claims can begin to be tested in the crucible of our adversarial system.
The opinion is 58 pages long, and I'm afraid I don't have the time to get through it now, but I thought I'd briefly excerpt it here.
Congratulations to David Houck of Ogg, Murphy & Perkosky, P.C and John Langford of Protect Democracy for the pointer.