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Lawsuit Over Alec Baldwin's Publicly Labeling Woman "Insurrectionist" for Her Jan. 6 Activities Dismissed by Court
Plaintiffs sued for defamation, and also for negligence and intentional infliction of emotional distress stemming from the comments aroused by Baldwin's posts.
From McCollum v. Baldwin, decided today by Judge Edgardo Ramos (S.D.N.Y.):
Jiennah McCollum is the widow of Marine Lance Corporal Rylee J. McCollum, who was killed in an attack by a suicide bomber on August 26, 2021, in Kabul, Afghanistan. One month after Rylee died in Kabul, Jiennah gave birth to their daughter. Rylee is also survived by his father, Jim, and two sisters, Roice and Cheyenne. Roice appeared on the Fox News program "The Story with Martha MacCallum" in early 2022 to discuss Rylee's death….
Baldwin has 2.4 million followers on Instagram, where he has been socially and politically active for years. After Rylee's death, a GoFundMe account started fundraising for Jiennah and her soon-to-be-born daughter. Baldwin donated $5,000 to Jiennah in support of the soldier's family.
On January 6, 2021, Roice went to Washington, D.C. to participate in the demonstration to protest the election of President Joe Biden, which later escalated into a riot in the Capitol Building. However, she did not take part in the riot: she neither entered the Capitol Building nor engaged in any confrontation with police officers or government officials. Roice was later interviewed by the FBI about the demonstration and was cleared of any wrongdoing. Jiennah and Cheyenne were not present in Washington, D.C. on January 6, 2021.
On January 3, 2022, Baldwin saw a photo of a crowd of demonstrators at the Washington Monument posted by Roice on her Instagram page in anticipation of the one-year anniversary of her attendance at the Washington, D.C. demonstration.
Baldwin then commented on Roice's post "Are you the same woman that I sent the $ to for your sister's husband who was killed during the Afghanistan exit?" Upon confirmation from Roice that she was the sister of Rylee and the sister-in-law of Jiennah, Baldwin engaged in an exchange of private messages with Roice on Instagram. The final private messages between Baldwin and Roice state as follows:
Baldwin: When I sent the $ for your late brother, out of real respect for his service to this country, I didn't know you were a January 6th rioter.
Roice: Protesting is perfectly legal in the country and I've already had my sit down with the FBI. Thanks, have a nice day!
Baldwin: I don't think so. Your activities resulted in the unlawful destruction of government property, the death of a law enforcement officer, an assault on the certification of the presidential election. I reposted your photo, Good luck.
After engaging in the private conversation with Roice, Baldwin published a public post on Instagram, which was available to his followers, regarding the protest and riot at the Capitol. Doc. Baldwin included a photo of Roice and wrote the following in the caption of the post:
I will take this down tomorrow. Lots of Trumpsters chiming in here with the current cry that the attack on the Capitol was a protest, (a more peaceful form of which got a lot of other protestors imprisoned) and an exercise in democracy.
That's bullshit.
The party that has reflexively rallied on behalf of Law enforcement- Support the Troops-Jesus watched the Capitol police get beaten, one killed, and called it their right.
I've said it before. The Republican that can lead the GOP away from this maniac [Trump] will go down in history as a hero.
There's an interesting story here…
So, I read in The Times, I believe, the story about the soldiers that died at the Kabul airport.
I did some research.
I found, on [Instagram], that this woman [Roice McCollum] is the brother [sic] of one of the men who was killed. I offered to send her sister-in-law [Jiennah McCollum] some $ as a tribute to her late brother, his widow and their child.
Which I did. As a tribute to a fallen soldier. Then I find this.
Truth is stranger than fiction.
In response to Baldwin's post, several of his followers sent Roice a number of hateful messages. One of these private messages to Roice reads: "Get raped and die, worthless cunt [] Your brother got what he deserved." Roice then took a screenshot of this private message and posted it in on her Instagram page with the caption: "Thanks for the follow Alec.[]"
Baldwin responded to the hateful message directed at Roice under her post: "I find that abhorrent[.] My feelings were expressed by my gesture on behalf of your brother." Baldwin's following comment under this post reads:
alecbaldwininsta: @roice wyogirl that is not true. There are hateful things posted toward you that are wrong. Irony was my point. The irony of sincerely wanting to honor your brother and the fact that you are an insurrectionist. Irony: "the use of words that mean the opposite of what you really think especially in order to be funny[.]" (Merriam Webster)
In addition, Baldwin engaged in some discussions with others regarding the McCollums in the comments under Roice's post:
exdemocrat313: So you're saying you would deny a dead man's family help due to your political view?????? People like you is why I lost all faith in Democrats. []
alecbaldwininsta: @exdemocrat313 but I didn't say that. I gratefully supported the gofundme campaign while simultaneously not knowing the woman I approached is an insurrectionist. I think that's … remarkable.
fateisabluebird : @exdemocrat313 shut up. [Baldwin] has no obligation to send his money to anyone in the first place—to find out he sent money to someone who holds responsibility for the death of others would be gutting. She doesn't deserve his kindness.
Baldwin's followers eventually directed their efforts against all Plaintiffs. Roice, Cheyenne and Jiennah began receiving more insulting and disturbing comments, dishonoring Rylee and accusing them of being, among other things, white supremacists and Nazis. Below are examples of the comments sent to Plaintiffs:
falteringlyhuman: @chi wyomom22 fact: your sister has 2 recent posts flashing the white supremacy hand sign, that's all I need to declare her garbage [] we fought a war against people that think like this, I for one am ready for Round 2 of nazi-punching []
momdiariesandsunflowers: @alecbaldwininsta I can't believe this. She is proud of destroying our country ? Did I miss something here? My goodness []
trish_whring: @chi wyomom22 this isn't about him for me. It's about her actions, involvement and motives being involved in the insurrection. [ . . . ]
woke.business: @roice_wyogirl you are white supremacy.
bellafoxjr: @roice_wyogirl YOU SAY THIS ABOUT @alecbaldwininsta AND YET YOU WERE SO QUICK TO TAKE MONEY FROM HIM? IS THAT HOW IT WENT DOWN? IF IT IS, YOU'RE DISGUSTING, AND YOU ARE ARE [sic] ERASING YOUR BROTHER'S LEGACY.
bellafoxjr: @chi wyomom22 Is your whole family the same? Were they all insurrectionists? Do they all preach hate against @alecbaldwininsta?
sem919mes: @roice wyogirl you're going to jail for your participation in an insurrection on the US Government. []
ibellai : @chi wyomom22 let's say someone died at war and left their wife and child alone. People would donate so they can get by with a little more help but then you find out they partake in ISIS. You wouldn't feel right helping and giving money to ISIS, right?
alexhspina: @jane.vick.jaidi Someone losing a sibling is not an excuse to be an a**hole traitor nor does it give her special status over other Americans. Trying to overthrow the government has consequences.
Plaintiffs assert that Baldwin's posts were made with malicious intent, as evidenced by the fact that he wished Roice "good luck" when he told her that he re-posted her photo. Baldwin, they contend, failed to correct his false statement that Roice was an insurrectionist, despite the fact that he was specifically told that Roice did not participate in the riot. Plaintiffs further allege that Baldwin, as a politically active celebrity with 2.4 million followers, acted negligently and recklessly as he knew or should have known that his comments on Instagram would result in the hateful speech being directed towards Jiennah, Roice, and Cheyenne.
Each of the Plaintiffs raises the following claims against Baldwin: (1) negligence and gross negligence; (2) negligent infliction of emotional distress; and (3) intentional infliction of emotional distress. In addition, Roice alleges defamation, defamation per se, and defamation by implication. Plaintiffs seek $25 million in compensatory and punitive damages….
The court rejected Roice's defamation claim:
Roice alleges that Baldwin's posts constitute a representation that she was a "January 6 rioter" and "insurrectionist," and that Baldwin "define[d]" the term "insurrectionist for his 2.4 million followers." In response, Baldwin emphasizes that Baldwin's reference to Roice as a "January 6 rioter," and his contention that her "activities resulted in" several unlawful consequences, took place completely within their private communications.
The Court agrees that the messages exchanged between Baldwin and Roice via direct messaging are not actionable to support defamation claims because Baldwin did not publish those messages to any third party…..
Baldwin made two comments that were available to the public under Roice's Instagram posts where he referred Roice as an "insurrectionist." … Roice is a limited public figure with respect to this dispute. Roice posted the January 6 demonstration photo publicly on Instagram, with a caption that expressed her political views as a participant, in anticipation of the demonstration's one-year anniversary, and she voluntarily engaged in conversations with Baldwin—a well-known celebrity. Furthermore, as set forth above, Roice voluntarily injected herself into the public realm by appearing on several news sites in the aftermath of her brother's death and before this action was filed. Thus, because Roice is a limited public figure with respect to the controversy, her defamation claims must be dismissed unless she adequately pleads that Baldwin made the comments with actual malice.
Here, the Court agrees with Baldwin that Roice did not sufficiently plead actual malice and that his comments are protected under the First Amendment. While Plaintiffs claim that "[Baldwin] knew, or should have known, that [publishing potentially false comments] would result in an avalanche of violently negative attacks on Plaintiffs," this allegedly negligent conduct does not meet the threshold of actual malice. Instead, the question here is whether Plaintiffs' allegations sufficiently assert that Baldwin personally believed his statements were false. However, … Plaintiffs' allegations do not support their proposition that Baldwin knew or believed his comments referring to Roice as an "insurrectionist" were false when he posted them. To the contrary, their allegation—"[Baldwin] posted what he believed was [Roice's] image on her Instagram feed to his 2.4 million followers and continued labelling [Roice] an 'insurrectionist'"—suggests that Baldwin posted what he believed was true. Thus, Plaintiffs do not sufficiently plead that Baldwin intentionally posted false and defamatory statement with actual malice….
According to Roice, Baldwin's "re-publication [Roice's photo] and subsequent incitement to his 2.4 million followers" amounts to defamation…. [T]he Court concludes that Roice fails to allege that the post contains any false information: she admits that she was present at the demonstration in Washington, D.C. on January 6, 2021, when and where she took the photo that she later publicly posted, and that Baldwin reposted. In fact, the complaint makes clear that the substance of Baldwin's post was true: Roice is Rylee's sister, her sister-in-law did receive a $5,000 donation from Baldwin, and Roice did participate in the demonstration in Washington, D.C., on January 6, 2021, where she took the photo of herself that was reposted by Baldwin. Thus, Baldwin's post is not defamatory….
The court also rejected plaintiffs' negligence claim, because, "[e]ven though Baldwin's followers, as third parties, may have reacted to Baldwin's opinion in an offensive manner, there is no obligation to protect a bystander … from an emotional injury." And the court rejected Roice's intentional infliction of emotional distress claim because, on these facts, it was duplicative of the defamation claim: "[W]hen additional tort claims are aimed at controlling the same speech that is the basis of a libel claim, courts should not entertain the additional claims under less stringent standards."
The court also rejected Jiennah and Cheyenne's intentional infliction of emotional distress claims:
Under New York law, conduct may be "extreme and outrageous" [which is required for such a claim] where "there is a deliberate and malicious campaign of harassment or intimidation." Thus, the proper inquiry is not merely whether an individual act might be outrageous, but whether the action in totality amounted to a deliberate and malicious campaign.
Under the above standard, Jiennah and Cheyenne fail to plead that Baldwin's conduct was "extreme and outrageous" or that he acted with an intent to cause severe emotional distress. Jiennah and Cheyenne stated in the complaint that "[Baldwin's post] invited 2.4 million people to attack, threaten, and shame the McCollum family." Even taken as true, this single allegation does not meet the "extremely high bar" of intentional infliction of emotional distress. Cf. Moraes v. White (S.D.N.Y. 2021) (finding that it is "extreme and outrageous" that defendant made multi-pronged campaign to harass plaintiff, including sending agents to her apartment to threaten her, delivering cease-and-desist letters, and post defamatory statements on social media). While Jiennah and Cheyenne also allege that they received death threats and hateful comments referring to them as Nazis and racists, these statements were made by third parties. Thus, they cannot be used as evidence of plaintiffs' claims of intentional infliction of emotional distress against Baldwin. In addition, Jiennah and Cheyenne do not plead that Baldwin acted with an intent to "cause severe emotional distress." …
