"Sacramento Black Lives Matter Founder Settles Libel Lawsuit with Video Apology"

From Thursday's story in the Sacramento Bee (Sam Stanton) (link added):

More than two years after a Sacramento-area businesswoman was falsely accused of posting racist and hateful comments on the Facebook page for Sacramento's Black Lives Matter chapter, her lawsuit against BLM Sacramento has been settled with the group's founder issuing a public apology….

"On behalf of myself and Black Lives Matter Sacramento, I deeply apologize for my reckless behavior and the harm that we caused Ms. Crowley, her family and her business," Faison said in a 98-second video posted on Facebook.

Faison acknowledged in the video that she should have removed her post about Crowley after Crowley contacted her in 2021 and assured her the messages had not come from her and that she did not hold racist views.

"Nonetheless, I posted on the Facebook website that I had verified Ms. Crowley's identity," Faison said. "I posted Ms. Crowley's city of residence and work and I asked the public to make Ms. Crowley famous.

"Terrible consequences for Ms. Crowley followed, including death threats. Black Lives Matter Sacramento and I were wrong.

"We should have taken the Facebook post down after Ms. Crowley explained to me that she had not sent them."

Here's my post from March 2022 about the federal court decision that allowed the case to go forward:

[1.] Today's decision by Judge Morrison England (E.D. Cal.) in Crowley v. Faison allows a lawsuit against Black Lives Matter Sacramento and codefendants to proceed, based on "BLM's posting of racist emails purportedly sent to BLM" by plaintiff—plaintiff claims, apparently with some evidence, that they were actually sent by someone impersonating her (who was later identified, as a result of a search warrant based on a criminal complaint, as likely to have been plaintiff's ex-tenant). Here's the factual backstory:

On or about April 25, 2021, an email address purportedly assigned to Karra Crowley ([e-mail]) sent the following email to BLM via its general ([e-mail]) address.

To whom it may concern,

I am sick and tired of hearing about you guys on the news. You guys are nothing but a bunch of domestic terrorists. Crying because you can't have your way about something. Why don't you just give up, your [sic] never going to be able to change the world. EVER!!!! GROW THE FUCK UP. White lives matter!!!!

Karra Crowley
Crowley Properties

Defendant Faisson responded later that same day on behalf of BLM, using an email address, [e-mail], that apparently belongs to her:

Yet you took the time out to email us and we don't know or care who you are or what you feel like. If you are tired of hearing about BLM stop contacting us.

That prompted the following retort from "Karra Crowley" the next day, April 26, 2021:

My husband and I are pillars in this community. We have always taught our children to fear African Americans!!!! You are nothing but thugs and low life's (sic). Seriously why don't you guys just stop with the bullshit, your (sic) never going to change the world, so give up. White people are kings!!!! You are peasants!!!!

A minute later, another email was sent with the single sentence "Let's bring slavery back!!!!"

Defendants then proceeded to post the above emails to BLM's Facebook page on April 26, 2021, at approximately 3:57 p.m. with the following explanatory note:

So this woman Karra Crowley has been emailing us and we figured she needs to be famous. She actually owns a business called Crowley Properties in Roseville but she lives in Loomis.

Karra Crowley states that just 18 minutes later, at approximately 4:15 p.m. she received a phone call from her assistant and was advised to look at both BLM's and Crowley Properties' Facebook pages because they were "blowing up" with hateful comments and threats. Ms. Crowley states that she subsequently looked at the pages and was horrified to read the statements attributed to her. Ms. Crowley states she proceeded to send the following response directly to Tanya Faison by email at 4:36 p.m.:

Tanya,

I do not know who sent you those hateful emails, but it was not me! That is not my email address and I have no idea who is behind this. Anyone who knows me knows I would NEVER EVER say those things nor would I use that filthy language. I would greatly appreciate it if you would remove your posts containing false information about me immediately.

Respectfully, Karra Crowley

While Ms. Crowley states she never received a response from Ms. Faison to this request, Defendants did add the following to BLM Facebook page less than an hour later, at 5:11 p.m:

HER [Karra Crowley's] INFORMATION HAS BEEN VERIFIED. I AM NOT GOING TO BE RESPONSIBLE FOR SHARING ADDRESSES AND PHONE NUMBERS BUT FOLKS … ESPECIALLY YOU LIGHTER HUED FOLKS COMING AND BEING DISRESPECTFUL … YOU NEED TO GET YOUR DUCKS IN A ROW BEFORE YOU COME HERE MAKING ACCUSATIONS

WE KNOW HER BUSINESS ADDRESS WE KNOW HER PO BOX

WE KNOW HER AND HER HUSBANDS HOME ADD (sic) SHE HAS BEEN VERIFIED

ROSEVILLE AND LOOMIS

Plaintiffs claim that almost immediately after Defendants' Facebook posts, they received a barrage of hateful comments both through phone calls, voicemail, and postings on Crowley Property's Facebook page. Those comments included accusations that Karra Crowley was "a sick racist freak" and "a garbage human." Other posts called on people "not to rent from her" or "support [a] business" run by this "disgusting human."

In addition, Defendants' posting themselves had, within just two days (by April 28, 2021), prompted 284 "Reactions," 120 "Comments," and 183 "Shares." Fox 40 News, a local television channel in Sacramento, contacted Mr. Crowley who "felt compelled to do an interview to try to mitigate the damage." Karra Crowley was also contacted by and gave interviews to the Sacramento Bee newspaper and three other news stations.

Karra Crowley herself posted a comment on Defendants' Facebook page which directly responded to the posts. Her response of April 27, 2021, the day after the postings were first made, stated as follows:

My name is Karra Crowley and I am NOT the person who wrote those despicable emails. The email [e-mail] does not belong to me nor do I have any affiliation with it. I absolutely do not share the views expressed in those emails and anyone who knows me would confirm that. If you truly want to get to the bottom of this, you need to find out who created that email.

The following day, April 28, 2021, Karra Crowley received a death threat on her home phone number. On April 30, 2021, a sign on white poster board and suspended on shovels inserted into the ground (which Crowley interpreted as a threat to bury her) was placed across the street on a property facing the Crowleys' driveway. The sign read:

KARRA --- FUCK YOU, YOU RACIST CUNT!

*Be a decent person, it's not that hard just like it's not that hard to find someones (sic) address*

Even a month later, Christopher Crowley received texts containing utterly vile threats. The following May 25, 2021, message is illustrative:

You fucked with the wrong people old man. So what's going to happen is I'm first going to kill your ugly wife. I'm going to cut her from her smelly cunt all the way up to her throat then carefully take out her intestines and tack them to the wall. Then I'm going after your daughter. I am going to cut her stomach open and then pull her intestines out and shove them down her throat. I know where everyone lives. Oh yes. And if you think of calling the cops I don't believe they'll be able to help you before I get to everyone.

Other texts, sent the same day, indicated that Crowley's attorney was "a dead man and so are you and your cunt wife and daughter," promised that there would "be a mass shooting at your lawyers [sic] office tomorrow [with] multiple dead", and stated that "I may even kill your grandchild. You won't see it coming either."

According to Plaintiffs, Defendants still refuse to remove the offensive posts from BLM's Facebook page. Plaintiffs filed the present lawsuit on April 30, 2021, just four days after Defendants' postings to that page….

[2.] The court begins by concluding that plaintiffs had to show "actual malice" on defendants' part; I think that's not right, since under Gertz v. Robert Welch, Inc. (1974), private-figure plaintiffs—as plaintiffs here are likely to be—only have to show negligence to recover proven compensatory damages (including identifiable business losses as well as emotional distress damages). Metabolife, the case the court cites, did broadly say, "Because the defendants' speech addressed a matter of 'public concern,' Metabolife must show that the statements were false and made with 'actual malice'"; but in context I assume that this stems from Metabolife's indubitably having been a public figure. Still, the court concludes that plaintiffs introduced enough evidence to satisfy even the higher "actual malice" standard:

Defendants correctly point out that Plaintiffs must ultimately show that the challenged statements were both false and that they were made with "actual malice." Metabolife Int'l, Inc. v. Wornick (9th Cir. 2001)…. "[T]he actual malice standard is not satisfied merely through a showing of ill will or 'malice' in the ordinary sense of the term…. instead, [it] requires … that the statements were made with a reckless disregard for the truth." Consequently, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." As the Solano court went on to observe, whether or not the defendant "in fact entertained serious doubts as to the truth of the statement may be proved by inference, as it would be rare for a defendant to admit such doubts. A court typically will infer actual malice from objective facts."

Plaintiffs' Complaint avers that they neither "wrote [n]or sent the emails posted by Defendants" and that Defendants' statements that Karra Crowley sent the emails were false…. Less than an hour after BLM's posting of the messages and its "call-out" to make Crowley "famous," Karra Crowley wrote to Defendant Tanya Faison directly and explained that she had not written the emails and that an address not belonging to her had been used. Ms. Crowley asked that Faison "remove your posts containing false information about me immediately."

Defendants not only refused to do so, they also made yet another posting 35 minutes after Karra Crowley's email, at 5:11 p.m., stating that Crowley's information had "been verified, with Defendants knowing her home and business addresses and post office box number." Karra Crowley also made a posting herself on BLM's Facebook page the following day again disavowing the statements and identifying the specific email address used to make them as not belonging to her, but again Defendants refused to even respond, let alone take down the offensive posts.

Plaintiffs argue that this series of emails and postings, which are described in Plaintiffs' Complaint and further attached as exhibits by both parties to their motion papers, infer that Defendants knew or acted with reckless disregard as to the probable falsity of the emails allegedly sent by Ms. Crowley. As Plaintiffs point out, the inherent improbability of anyone actually sending such vile emails and attaching their name and business identification thereto made it necessary for Tanya Faison to report that Plaintiffs' identities and contact information had "been verified."

Moreover, those alleged "assurances" came only a matter of minutes after Karra Crowley had emailed Ms. Faison  directly asking her to remove the false postings on grounds that she was not the author of the emails and they had not been sent from her address. And, the fact that Defendants posted the emails less than two hours after the last of three emails purporting to be from Ms. Crowley had been sent supports the not improbable inference that no verification whatsoever had been done beforehand despite Defendants' request that its followers make Plaintiffs "famous." The timing of these events supports an inference that Defendants acted with reckless disregard for the truth.

Finally, as Plaintiffs point out, "[w]hy would Defendants command their friends to make Plaintiffs famous" in the first place? Plaintiffs describe the only reasonable inference as follows:

The patently obvious reason is to harm Ms. Crowley, her husband and their business. In other words, Defendants intentionally incited their friends to do harmful things to Plaintiffs by Defendants' defamatory posts—which shows Defendants' ill will/or hatred towards Plaintiffs.

The hateful slew of postings and messages that Defendants' conduct engendered just that response—both personal threats to Plaintiffs, some of which were chillingly violent as described above, and threats to harm their business. [Note that this particular argument seems to me largely beside the point, given the court's recognition above that "actual malice" doesn't mean "ill will or hatred," but focuses solely on what the defendants knew was false or likely to be false. -EV]

Given all of the above, in this Court's view the postings, emails, and reasonable inferences therefrom show enough of a likelihood that Plaintiffs can demonstrate "actual malice" (through Defendants' malicious/reckless behavior) to withstand the anti-SLAPP motion to strike on that basis….

[3.] The court also rejected the 47 U.S.C. § 230 defense:

The so-called Communications Decency Act, 47 U.S.C. § 230 … provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" …. "§ 230(c) provides broad immunity for publishing content provided primarily by third parties." The Act "mandates dismissal if (i) [the defendant] is a 'provider or user of an interactive computer service,' (ii) the information for which [the plaintiff] seeks to hold [the defendant] liable was 'information provided by another information content provider,' and (iii) the complaint seeks to hold [the defendant] liable as the 'publisher or speaker' of that information." "In short, a person defamed on the internet can sue the original speaker, but typically cannot sue the messenger." …

[But i]mmunity under § 230 requires that the third-party provider, here the individual masquerading as Karra Crowley, have "provided" the emails to Defendants "for use on the Internet or another interactive computer service." Batzel v. Smith (9th Cir. 2003). Here, as Plaintiffs point out, the emails were sent directly to BLM Sacramento's general email address. "[I]f the imposter intended for his/her emails to be posted on BLM Sacramento's Facebook page, the imposter could have posted the email content directly to the Facebook page," yet did not do so. Those circumstances raise a legitimate question as to whether the imposter indeed intended to post on the internet, and without a finding to that effect the Act's immunity does not apply. {The requirement that materials be provided with an intent they be posted on the internet makes sense since, as Batzel v. Smith (9th Cir. 2003) notes, otherwise "users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet." This could result in "nearly limitless immunity for speech never meant to be broadcast over the Internet."}

These concerns are further amplified by the fact that Karra Crowley notified Defendants that she did not author the emails, and they did not come from her email address within 24 hours after the last email attributed to her was posted. Defendants nonetheless refused to take down the offending posts from its Facebook page, causing the hateful and threatening messages received by Plaintiffs to continue. As set forth above, one of the most disgusting of those messages, in which the sender graphically described how he or she was going to kill Karra Crowley and her daughter, was sent nearly a month later. [Again, I don't think this particular argument is legally relevant under § 230, though the others might be. -EV]

In addition, while the Act does provide immunity for materials posted on the internet which the publisher had no role in creating, here Defendants did not simply post the emails. They went on to suggest that Karra Crowley "needs to be famous" and represented that her "information has been verified", including business and home addresses.

{While Defendants appear to argue that they never actually claimed to have verified Ms. Crowley's identity as the actual sender of the offending emails, the Court finds any such argument unpersuasive in the context of Defendants' later posting that her "information has been verified" and "she has been verified." Posting such information literally on the heels of having published the emails on Defendants' Facebook page less than two hours later creates an inference that Defendants were advancing Ms. Crowley as the author. On a motion to dismiss, the court must adopt whatever plausible interest supports a valid claim.}

It is those representations [that Crowley's information has been verified -EV] that Plaintiffs claim are libelous, particularly after Defendants persisted in allowing the postings to remain even after they had been denounced as false, a decision which caused further harassment and threats to be directed towards Plaintiffs…. Plaintiffs remain "free under section 230 to pursue the originator of a defamatory Internet publication." …

[4.] And the court allowed plaintiffs to add an intentional infliction of emotional distress claim:

As set forth above, the timing of existing Defendants' Facebook postings suggests that they immediately posted the subject emails to the internet despite the inherent probability that an individual would not only identify herself and her business but send such racial offensive emails to the local representative of an organization at the forefront of race relation issues in this country.

Moreover, not only did Defendants post the emails, in essence they urged their followers to make Ms. Crowley "famous" by assuring them that they had "verified" her "information" and addresses in Roseville and Loomis. Then, when Ms. Crowley contacted Defendant Faison directly and said that the emails were not from her or even from her email address, Defendants declined to even consider her request to take the offensive messages off their website, which resulted harassment and death threats that persisted even a month later.

Because this Court cannot rule out a reasonable jury finding all of this to be outrageous conduct, amendment to include an intentional infliction of emotional distress cause of action is proper, particularly since amendment should be permitted with extreme liberality at this stage of the proceedings….

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

Comments

[Jerry B.]

Ooh. Forced to make an apology. That’ll show ‘em.

[Life of Brian]

I wouldn't discount that out of hand. For some people, having to publicly say they were wrong is a worse punishment than just paying some money (which may not even be coming out of your own pocket depending on who's backing you). It can also be much more vindicating for the victim.

[Michael P]

It's also a lot more visible to third parties. Monetary settlements often come with confidentiality clauses.

[Frank Drackman]

https://www.msn.com/en-us/news/us/black-lives-matter-sacramento-says-it-was-bullied-into-apologizing-to-settle-libel-suit/ar-AA1fsQp9
that didn't take long.

[SomeGuy 2]

“Black Lives Matter Sacramento was bullied into an apology in order to end a lawsuit for receiving racist emails,” a news release from the group and founder Tanya Faison said.

Ah, yes, you were sued under the famous tort of receiving racist emails. They've reached the ultra-level of deception where they're lying about what they're lying about. When you argue with BLM, this is the bad faith you're engaging with.

[Darth Buckeye]

I say that the Tanya Faison is a bad person. I wonder if Plaintiffs can have the case reinstated?

[Mishka]

The plaintiffs are considering whether to ask the court to revoke the settlement and take the case to trial.

[Savagely Average]

I mean, the BLM entity and Faison aren't deep pockets which the plaintiff likely knew - the most she ever hoped to get was an apology. Insincere as it was, she's probably not going to do any better. At least Faison didn't retract any factual admissions in the apology - she didn't claim Crowley sent the emails. Just did a lot of whining and moaning about how unfair the whole thing is. Faison seems like one of those people who's incapable of admitting to a mistake and just doubles down.

[Area Man]

No, you see, that was just her “opinion” of what the other person said, so she shouldn’t be liable for anything. Even though the other person was thrust into the spotlight against her will, she was made into a “public figure” and was therefore fair game.

[Carlos Inconvenience]

If libertarians are going to oppose private rights of action to cure defamatory statements they ought to at least work to legalize dueling.

[Frank Drackman]

or just legalize giving a defamer a good "thrashing" like Layne Price did to that weasel Pete Campbell in "Mad Men" (Season 5 episode 5)

[Dr. Ed 2]

At what point does something like this escalate from libel to attempted murder? Or looking at it a different way, if some BLM nut HAD murdered her, would the libeler have had some (criminal) responsibility for the crime?

I’m thinking of a situation years back where some racist radio talk show host was saying he wanted a specific person dead because he was Jewish or Black (maybe both) and there was more. Some follower put a rattlesnake in mailbox and talkshow host was convicted of murder, or something.

I don't have a problem with the talkshow guy going to prison but how is this different?

[Noscitur a sociis]

if some BLM nut HAD murdered her, would the libeler have had some (criminal) responsibility for the crime?

No.

Any other dumb questions?

[Dr. Ed 2]

So if I tell Moslem Radicals that you're pissing on Korans, knowing they will kill you in response, I'm not responsible?

[David Nieporent]

The word is spelled "Muslim." (The other word is spelled "radicals.")

And the answer to your question can be found by reading Brandenburg v. Ohio.

[Dr. Ed 2]

In the era of terrorism, Brandenburg isn’t as absolute as you might think. For an interesting analysis of this, see: http://sls.gmu.edu/crlj/wp-content/uploads/sites/16/2019/02/GMC202_crop-1-1.pdf

As an aside, both Moslem and Muslim are translations from Arabic, a language lacking a Latin alphabet, both are considered correct with the latter being a more modern translation.

[John F. Carr]

More important than the alphabet, most forms of Arabic do not distinguish between the sounds typically represented by 'o' and 'u'.

I also see Musulman in older writing.

[GKHoff]

It's also the name of a very yummy curry dish.

[Frank Drackman]

and it’s pronounced “Moose-lum” (HT B. Sanders) so what’s your point? you got an “A” in Spelling? that and a B.A. in Literature and you’ll be the best speller poouring Latte’s at Starbucks. And I know it’s “Pouring” things change, “Sneeze” used to be “Fneeze” back in the middle ages, Blacks used to be Knee-Grows, Queers used to be Fags, and now they’re “Queer” again. And some words dry up and blow away, like Christ Christie is doing (takes a Hurricane to move that Tub of Lard) like “Feeze” (Noun) which I use all the time (took a millenium to bring Hebrew back into everyday use, I’m working on the Middle English)

Frank "Away with you, Fribble!"

[Krychek_2]

I’m not so sure. I think telling a group of radical Muslims that Dr. Ed is pissing on the Koran, knowing that they will probably try to kill him as a consequence, might be murder under a depraved indifference theory. Whether it was depraved indifference would be a quest of fact for the jury. I don’t think that what is otherwise depraved indifference gets a free pass because it was expressed as speech. If I were a prosecutor I’d at least get an indictment and test it.

Under Brandenburg there is only criminal liability if the words spoken are a “clear and present danger,” which is probably also a jury question. But the libeler could be sued for defamation and possibly negligence as well.

[Michael P]

However:

In Hess v. Indiana, 414 U.S.105 (1973), the Supreme Court overturned the conviction of a demonstrator in affirming that advocacy of illegal activity in the indefinite future is protected by the First Amendment.

On the other hand, consider the denial of cert (Stewart v. McCoy (2002)) and related article mentioned in https://mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action, and Rice v. Paladin Enterprises, 128 F.3d 233 (4th Cir. 1997).

[Krychek_2]

I’m in full agreement that people can’t be punished for advocating criminal activity but that’s not the issue in Dr Ed’s hypothetical. The issue is if you know your speech is going to get someone killed, is it depraved indifference murder?

Suppose I tell a small child to play in the street and the child is struck and killed by a car. All I did was speak, but I doubt that saves me from a conviction for child endangerment or possibly depraved indifference murder. There are crimes that manifest themselves as speech such as extortion and fraud.

[David Nieporent]

I’m in full agreement that people can’t be punished for advocating criminal activity but that’s not the issue in Dr Ed’s hypothetical. The issue is if you know your speech is going to get someone killed, is it depraved indifference murder?

If expressly saying "Dr. Ed should be killed" is protected under Brandenburg,¹ then how can saying something that merely implies he should be killed not be?

¹Assume that the Brandenburg factors aren't met.

[Krychek_2]

Because in Brandenburg nobody actually got killed.

Why is it not constitutionally protected to shout fire in a crowded theater? Because the harm is not merely hypothetical; people are actually going to die. Brandenburg dealt with hypothetical harm that didn’t actually come to pass. If people actually die there was in point of fact a clear and present danger.

[David Nieporent]

It is constitutionally protected to shout fire in a crowded theater. Unless the Brandenburg test is met.

[Krychek_2]

Which I think it would be. It’s a clear and present danger.

This is basically the Trump indictment for inciting his followers to riot at the Capitol.

[David Nieporent]

But Trump wasn't charged with incitement! Precisely because it has a really high standard.

[Rev. Arthur L. Kirkland]

So if I tell Moslem Radicals that you’re pissing on Korans

Thank goodness a commenter veered into Muslim territory -- if enough of this blog's fans take the bait and rant about Muslims, perhaps Prof. Volokh will not feel compelled to provide another story about Muslims from his transgender-white grievance-gay drama-Muslim-drag queen-Black crime-lesbian beat today!

[Ken Arromdee]

I thought you thought religion was superstitious nonsense,

[Rev. Arthur L. Kirkland]

With no flavor much better than any other.

I do not see your point. Why would my view of organized religion be important, or relevant, to this context?

[Frank Drackman]

Yeah, what cereal box did you get your law degree off of?

[Armchair Lawyer]

Yes. California Penal Code §653.2

[Dr. Ed 2]

But what does it sat that we permit such savage groups to freely exist in our society?

[Sarcastr0]

Ed’s hypothetical Muslims are in a hypothetical murderous rampage set off by hypothetical Koran pissings and must be stopped. Hypothetically.

Says a lot, of you think about it. Says a lot about Ed not distinguishing well between fantasy and reality.

[bevis the lumberjack]

He’s not talking about the Muslims. He clearly states he’s talking about the Moslums.

[Sarcastr0]

Oh, dang.

What does it sat, indeed!

[David Nieporent]

Savage groups who want to mass murder civilians for walking across an imaginary line? Or savage groups who want to start a civil war because their criminal cult leader is prosecuted?

[Gasman]

Stochastic terrorism.

When one issues a call to arms along with directions to the targeted individual to a group of followers which one can be certain have at least a few nut cases likely to effect violence or assassination, then yeah, it can amount to murder. Maybe not as a matter of law, but certainly as a matter of moral culpability.

[myself]

At what point does something like this escalate from libel to attempted murder? Or looking at it a different way, if some BLM nut HAD murdered her, would the libeler have had some (criminal) responsibility for the crime?

Are you comfortable throwing Giuliani, Trump, and various other Conservatives in jail for attempted murder for falsely accusing those poll workers of stealing the election? (Or actual murder if one of them followed through).

They've had no shortage of death threats either.

I’m thinking of a situation years back where some racist radio talk show host was saying he wanted a specific person dead because he was Jewish or Black (maybe both) and there was more. Some follower put a rattlesnake in mailbox and talkshow host was convicted of murder, or something.

I don’t have a problem with the talkshow guy going to prison but how is this different?

You mean how is it different, relating specifically to whether they'd be changed with murder, to defame someone vs specifically asking for that person to be murdered?

Hmmm, that's a tough one.

[Frank Drackman]

If I say BLM Founder Tanya Fasion looks like an Oompa Loompa am I protected by the "Truth is an absolute defense to defamation" principle (New York Times Co. v. Sullivan, 376 U.S. 254)

https://www.bing.com/images/search?view=detailV2&ccid=4iPpC8U4&id=3DE68025A805F0CEC3738E0B86F257A9797592DB&thid=OIP.4iPpC8U4jgUSWDdzHTRgEgHaE8&mediaurl=https%3a%2f%2fi0.wp.com%2fsacobserver.com%2fwp-content%2fuploads%2f2022%2f10%2fPORTRAIT_LB_09262022_Tanya-Faison_173-1-scaled.jpg%3fresize%3d1200%252C801%26ssl%3d1&cdnurl=https%3a%2f%2fth.bing.com%2fth%2fid%2fR.e223e90bc5388e05125837731d346012%3frik%3d25J1ealX8oYLjg%26pid%3dImgRaw%26r%3d0&exph=801&expw=1200&q=tanya+faison&simid=607991181547690085&FORM=IRPRST&ck=284C0865B1EF95D4156CB34BF5D9E21E&selectedIndex=2&ajaxhist=0&ajaxserp=0

Frank

[bevis the lumberjack]

BLM Sacramento has now disavowed the apology, presumably because people saw it.

https://www.blacklivesmattersacramento.com/blog

What a piece of shit organization BLM is . I supported their goals (make police treat us with dignity) starting several years before they were formed, but I watch them piss away the moral high ground time after time after time while apparently stealing the money. In this case they’re just a bunch of fucking bullies whining about how oppressed they are. If BLM doesn’t want to be called thugs then they shouldn’t engage in thuggery.

They are doing the black community more harm than good.

[Darth Buckeye]

I wonder if the case will be reinstated? I wonder what other penalties the court can impose. That comment to the news seems to negate the effect of the apology.

[Sarcastr0]

They don’t seem contrite but I don’t know the facts of the case well enough. Settling doesn’t mean guilt.

As to your broader criticism of BLM, I have a measured disagreement. BLM is neither an institution nor an ideology. I’d also argue it isn’t even a movement anymore.

It is a brand. A brand adopted by an above average proportion of the short sighted, angry, zealots and grifters, to be sure. But it’s not so far as to be a toxic brand, especially since the bad faith attempts off the break to make it toxic make it resilient to good faith condemnation,

Being not more than a brand means you can’t really a priori generalize about folks that associate themselves with it. Gotta do a case by case basis. As you should with other movements turned brands, like libertarian…and conservative…and liberal.

[bevis the lumberjack]

A brand that is taking in millions in donations? With a page on their website touting “alternatives to the police” (it’s there, I looked)? That’s a movement. Or if you prefer, an advocacy group.

And the primary problem is that they are harming the effort a lot more than they are helping. Violence and threats don’t persuade anyone to support anything. All it does is piss your audience off. A lot of today’s protest groups across the spectrum don’t seem to understand that.

[Sarcastr0]

There is no they to get donations or have a website.

Do you just mean BLM Sacramento specifically? They might be an institution, I have no idea. But you seem to be switching from the local to the general and back, using local facts to attack a national thing that does not exist.

[Magister]

MAGA Republicans and Trump specifically are also a brand taking in millions in donations (much of it spent on Trump's defense). Some Republicans have called for defunding the DOJ and FBI, among them the leader for the next presidential nomination. MAGA is pretty clearly a movement. Violence and threats are commonplace for them such as against election workers and officials who don't go along with their lies about the election. Not seeing much difference, except that it's a bigger threat to this country than BLM and has a single leader worshiped by its followers.

If a movement pisses off its supporters rather than persuading people to support it, it eventually stops getting donations. If another case as infamous as George Floyd's murder occurs, BLM activists will be able to muster huge protests quickly; if that never happens, then maybe they will have achieved one small goal.

[bevis the lumberjack]

Sarcastro – I mean BLM pretty much everywhere, although obviously I can’t be familiar with every chapter. Go back and look at polls from the spring/summer of the Floyd riots. That wasn’t Sacramento. Early on support for the cause was high. Spent all summer steadily dropping because of the behavior. Got to where people thought they needed the cops to protect them from the advocates. This has happened in so many locations that it’s pretty much expected at this point.

Magister – Gosh, it’s like I can dislike groups from all over the political spectrum that are essentially committing fraud and doing harm. Can you? And they’re not pissing off their supporters, they’re pissing off the outsiders they’re trying to persuade.

[Magister]

I certainly can criticize groups on the left, and have; but around here it would be redundant. Support for BLM has gone from 67% in June 2020 to 51% in June 2023 (Pew Research) in the face of a steady drumbeat of unfounded attacks and just waning attention next to a pandemic and the 2020 election and 2021 insurrection. MAGA would shoot many people on Fifth Avenue to get to even that lower number; their main outrage is unjustified (the Big Lie about the 2020 election), while BLM has a real basis for their activism - not as many bad actions by police as some of its supporters believe, but a real basis.

[bevis the lumberjack]

Great, another reader of minds on here. I told you what I think, Kreskin. Accept it, don't. I don't give a shit.

Just another argumentative jerk with nothing to say except for spewing orthodoxy. Given how many MAGAs have been charged over Jan 6, your statement about how they could get away with murder on 5th Ave is terminally asinine.

[Magister]

What mind reading? Both BLM and MAGA have well known objectives; the quip about shooting people on Fifth Avenue was meant humorously, but their death threats against prosecutors, judges, grand jurors and others are well documented. I had nothing to say about what you think (if anything), even if you're now identifying yourself as part of MAGA (an affiliation which I did not assert), but I will observe your inability to read my last post.

[Sarcastr0]

There is no BLM everywhere. Not in any coherent way you can speak to.

[bevis the lumberjack]

Ok, chief. Every time there’s an issue a local BLM pops up in that city. Whether or not they are connected to some national organization really doesn’t change how easily it is to watch BLM riot and block and loot their way to negative popular opinion.

During the Floyd summer at least 40 cities created curfews and 21 states and DC called in the national guard. Whether they were connect or not makes zero difference in the damage done to the cause.

You’re focusing on arguing something that doesn’t matter.

[Sarcastr0]

BLM popping up in response to 'an issue' doesn't mean it'll have anything in common with BLM elsewhere - it's just some people in one city or another.

There is no central coordinating body, there isn't even any coherent ideological throughline as to solutions.

how easily it is to watch BLM riot and block and loot their way to negative popular opinion.
And there it is. You're taking 2020 bad faith bullshit and pulling it forward to 2023 as though it's newly relevant.

[bevis the lumberjack]

You’re taking your usual eyes squeezed shut, fingers in ears, singing La-La-La to excuse left wing violence.

If Minneapolis burns and DC burns nobody gives a shit if the groups are connected BLM or separate BLM. Except for you.

You probably ought to quit wasting time on me and start shooting threatening communications to the Crowleys. Do your part, man.

[Sarcastr0]

nobody gives a shit if the groups are connected BLM or separate BLM. Except for you.

I mean, yeah, I like facts.
You can go into some catastrophic hypotheticals to explain why you don't, but all that shows is how facts are not what's driving you.

start shooting threatening communications to the Crowleys. Do your part, man.
Ah yes, the strawman bullshit is out again.

[bacchys]

I think "movement" is still a fair label, but it consists of numerous, only loosely affiliated organizations.

I suspect your interlocutor would be incensed by Republicans or conservatives being described as he has BLM.

[SimonP]

They are doing the black community more harm than good.

I think what you mean is, "these cherry-picked scandals at the edges of the BLM movement are making it too easy for white people like me - who consume almost exclusively media that cherry-picks these scandals for white people like me - to dismiss them all out of hand."

I don't know how much good or harm BLM is doing. But I do know that this kind of assertion, when all we ever hear about on the VC (or mainstream media more generally) are the "bad stories," is usually made without any serious consideration of the "good" an organization or individual could be doing.

[bevis the lumberjack]

I think you don’t read to gud. I stated clearly that I’ve been in favor of what BLM is supposed to be trying to achieve since before they came to exist - mostly from reading guys like Radley Balko in the late aughts. And the reason I hate them is that continually take the moral high ground provided by a sympathetic victim and piss it away. Because they are harming a cause I care about.

WTF is wrong with you? Are you so conditioned to reflexively argue that you don’t bother to read what you’re responding to?

[SimonP]

I stated clearly that I’ve been in favor of what BLM is supposed to be trying to achieve since before they came to exist...

I can read well enough to understand, at least, that this strangely-convoluted phrasing of your initial claim was not what I was addressing.

I can perfectly well acknowledge that you might be in favor of police reform more generally. That is, indeed, one of the main lines of BLM opposition that I encountered during the protests - i.e., people claiming that BLM was off-base because we should care about police abuse of all people. So it's not surprising to find someone in a corner of the VC repeating that line of criticism.

But what I was saying, in response to your comment, was not that you in some general sense oppose BLM's goals, but rather seem to be jumping to a conclusion about their doing "more harm than good," pointing to what amounts to bad publicity on a right-wing blog. I just don't see how you could possibly be able to support that conclusion; BLM could be doing a lot of good that people like Eugene feel no need to share with their readers.

[bevis the lumberjack]

I did not say "all lives matter". I said that I support BLMs goal. That's all I said. It's a very simple statement, although apparently not simple enough for simon. If you want all lives matter argue with someone who has said it and leave me out of it.

As to bad publicity on a RW blog, you're full of shit, Every time one of these cop things happen I watch and hope that they won't fuck it up this time, and every time they do. I watch them block roads and see how much they piss off the general public and marvel that they can't comprehend that the people they're pissing off are the people they're going to need to persuade to pressure the government to get their policies passed. They are truly idiots that are hurting the cause. It's my own observation driving my opinion, not anything that happens on this blog.

And what about BLMs behavior as to the subject of EV's post. You find it defendable to sic an angry online mob onto people that didn't do anything? If so, you're a despicable human being.

And fuck off for calling me racist for supporting better treatment for black people by the police.

[SimonP]

I did not say “all lives matter”.

Didn't say that you did.

I said that I support BLMs goal.

No. You said that you supported "what BLM is supposed to be trying to achieve since before they came to exist." What you meant by that nonsensical phrasing is not entirely clear; an inference must be drawn. Usually, people use this kind of equivocal and circumspect language to imply one thing by privately understanding another. That being the case, I drew a likely inference, based on my experience with other people who use similar language when discussing this topic.

As to bad publicity on a RW blog, you’re full of shit,...

What I have suggested is that you are extrapolating from evidence that has been selected for you, with the purpose of leading you to exactly the conclusion you're repeating here. The fact that you have chosen to harp on traffic roadblocks - of all things - doesn't really convince me that you have (shall we say) a well-balanced information diet on this matter.

And what about BLMs behavior as to the subject of EV’s post.

I'm not defending it.

And fuck off for calling me racist...

My dear, I never called you any such thing.

[bacchys]

The guilty flee where none pursue...

[Rev. Arthur L. Kirkland]

The professor seems to have provided more coverage of this story than he has of the important freedom of expression and other issues associated with a former president of the United States (and a disgraced law professor) throughout recent weeks.

Maybe the "person falsely accused of racism" angle is just too tempting (that may be how the professor views himself and his fans at a blog that regularly publishes vile racial slurs), and has overridden any and all reasonable judgments in this context?

[David Welker]

"The professor seems to have provided more coverage..."

Are you capable of anything more than whining? You could start your own blog and provide the exact mix of coverage to various topics that you desire.

Overall, VC is pretty random. What is posted is obviously whatever is on the mind of the various contributors. That this doesn't match what you would do if you were a contributor (and thank goodness you aren't) makes you exactly no different than anyone else.

As far as your point about "vile racial slurs" said racial slurs are said every single day in rap music. The context of speech determines its meaning. Your statement about this blog is deliberately misleading and it fools precisely no one. You think you are clever, but you aren't.

Why are you even here? Just to whine constantly???

[SimonP]

Say I decide to harass someone in my community - a "private figure," like a small business owner - by sending them some racist or sexist emails from an email account that is mine but that lacks personally-identifying details. On one of these emails, I make the mistake of including my true identity - say, an auto-generated signature is appended at the bottom of a bunch of garbage text. Armed with this information, the business owner decides to put me "on blast" using their social media sites.

In response, I send other emails to the owner denying that I had anything to do with those racist or sexist emails. I send these exonerating emails from an email account that is more clearly mine - the email address includes my last name and first initial, the signature is different and more clearly intentionally included, etc.

Since I am the author of both sets of emails, I obviously have no interest in getting the police involved. The business owner, for their part, isn't particularly sophisticated technologically and has only my say-so to go on. They figure that I'm obviously just trying to cover my tracks, after my harassment campaign blew up in my face, so they leave my personal information up on their social media, intending their friends and followers to "cancel" me, etc.

So I sue for defamation to try to shut the business owner's campaign down, and get money damages. What result, under the court's standard here?

Here, the court finds "actual malice" because Crowley told Faison/BLM that she didn't author the offensive emails, meaning that Faison/BLM were acting with "reckless disregard for the truth" when they doubled down on their posts targeting Crowley. But that seems to be saying that Faison/BLM should have taken Crowley to be speaking truthfully, or at least plausibly so, when Crowley's actions would have been consistent with those of a malignant actor (as in my hypothetical). Is that an appropriate assumption, at this stage in the litigation?

The set of facts featured in the OP are as laid out in considering a 12(b)(6) motion brought under an anti-SLAPP statute. That means that Plaintiffs' facts are taken as true as averred, in order to determine whether a claim has been stated. That means that the court takes as granted that Crowley didn't send the racist emails and that Crowley sent the emails to Faison/BLM informing them as such. But I'm not sure that it also means that Faison/BLM's actions in response to Crowley's protestations must be framed the same way. That is, in order for the defamation claim to survive the motion to dismiss, it needs to also be true the Faison/BLM had some way of knowing - either according to a "negligence" standard or a "reckless disregard" standard - whether Crowley's protestations were in good faith, when Crowley would quite reasonably be assumed to be lying.

But that's not evident here; indeed, it was not clear that there was a separate source until some time later, after Crowley got the police involved and the likely culprit identified. It seems to me, then, that Faison/BLM shouldn't be presumed to have known that Crowley's protestations were in good faith, for purposes of the motion. Legally speaking, were they required to be more skeptical? Are they acting with a "reckless disregard for the truth" if they don't give someone they believe to be racist the benefit of the doubt?

It seems to me that the court's presumption in favor of the Plaintiffs on this detail sets up opportunities for the sort of gaming I outlined in my hypothetical.

[Harvey Mosley]

You might have a point except for the posts by the defendant stating that the plaintiff's info had been verified. That action, after being told by the plaintiff that she had not sent the emails changes the situation in my opinion.

[SimonP]

I understand what you're saying - the judge describes the fact that the racist emails would come complete with specific information about Crowley as "improbable" and so ought to have led to some skepticism about their authenticity. But again, to survive the motion to dismiss, it requires that we take the position that any reasonably diligent person would draw the inference that the emails were or at least very possibly could be "faked" from that fact, along with Crowley's protestations - as opposed to just very poorly considered from the start.

I can imagine a number of regular VC commenters who might send racist threats to members of their community, while accidentally including identifying information about themselves. It's not a very bright bunch here.

[Savagely Average]

I agree that many racists are also stupid - it's not impossible the email could have been genuine. But on a motion to dismiss you draw factual inferences in favor of the plaintiff. As Harvey points out, Defendant's statement that plaintiff had been "verified" was made after Defendant had received information challenging the email's authenticity. A reasonable juror could find - not necessarily would find, but *could find* - that once Defendant had conflicting information she had a duty to at least perform some basic inquiries before siccing the internet on Plaintiff. So I think the court got it right.

[edbeau99]

American "justice" at work. Trump makes some crude comments about a woman and is hit with a $10 million defamation judgement. BLM endangers a woman's life and tries to destroy her business and just has to post an under 2 minute apology.

[David Welker]

Trump is not a victim.

Why are people buying into the idea of a billionaire and the former President of the United States being a victim.

I happen to think that three of the four prosecutions that he is facing are likely to fail. (The solid one is the classified documents case.) But I do not believe he is some sort of victim. Instead, I believe he is a human who craves and is given far more attention than he actually deserves. Especially by his critics, who probably ought to move on rather than feeding the beast. (Of course, you can't fully move on when someone is running for President... still, just focus on beating him if that is your main goal.)