The Volokh Conspiracy

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Free Speech

Comparing Comparison of Vaccine Mandate and Nuremberg to Swastikas Isn't Libelous


From Comic Strip Promotions, Inc. v. Envivo LLC, decided Tuesday by New York trial court judge Lisa Headley, in a controversy that apparently stemmed from this Instagram post:

From the opinion:

On or about January 9, 2022, Plaintiff … comedy club, published a social media post on Instagram, which contained hashtags related to the anti-vaccine mandate and Nuremberg. It has been alleged that Plaintiff's post offended a Jewish community member because it suggested an equivalency between the vaccine mandate and the persecution of Jews during the Holocaust. Thereafter, New York City Councilmember Julie Menin … wrote a letter to Plaintiff denouncing the post, and demanding the Plaintiff to make a public apology. On or about January 11, 2022, Defendant … Patch Media … published an article [apparently this one -EV]…, which discussed an investigation surrounding the Nazi Swastika symbols found on bills from an ATM. The Patch article discussed another occurrence of anti-Semitism in the area and the anti-vaccine social media post by the Plaintiff, which compared the city's vaccine mandate to Nazi Germany.

Plaintiff commenced this action against defendants for, inter alia, defamation, defamation per se, and tort of trade libel and/or injurious falsehoods. It should be noted that the action against, Councilmember Menin has been dismissed pursuant to the Court's Decision and Order dated October 31, 2022….

Plaintiff … argues that the Patch Defendants published a defamatory article which compared Plaintiff's hashtags to the swastika found on money, in an unrelated incident, implying Plaintiff is racist or antisemitic. Plaintiff contends Defendant Patch's statement were factual, however grossly inaccurate since persons reading the Patch article would associate Plaintiff with Nazi imagery. In addition, Plaintiff argues that this action cannot be dismissed because the Patch Defendants acted in a grossly irresponsible manner by publishing mixed opinions. Lastly, Plaintiff argues that the Patch Defendants amended affirmation should be rejected because it was filed without permission or leave of the court…

In determining whether a particular communication is actionable, a distinction is recognized between a statement of opinion that implies an undisclosed factual basis, and an opinion that is accompanied by the recitation of facts on which it is based. Here, this court finds that the Patch Defendants publication was an opinion that referenced Councilmember Menin's letter, and was based upon the social media post made by Plaintiff.

The court therefore concluded that the statement was the latter kind of opinion (because it disclosed the accurate factual assertions on which it was based), and therefore not actionable as defamation. Seems generally correct to me. (I don't personally view excessive comparisons to the Holocaust, Nuremberg Trials, the Nuremberg Code, the Nazis, etc. as anti-Semitic, though I think they are often unsound and sometimes in bad taste; but that too is just my opinion.)