The Volokh Conspiracy
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Louis Farrakhan Loses Lawsuit Against Anti-Defamation League
From Friday's decision by Judge Denise Cote (S.D.N.Y.) in Farrakhan v. Anti-Defamation League:
The challenged statements referring to Farrakhan as antisemitic are non-actionable statements of opinion. The communications in which they were published contain "a recitation of the facts on which [they are] based"—namely, direct quotes from Farrakhan. Thus, the statements calling Farrakhan antisemitic cannot be "reasonably understood as implying the assertion of undisclosed facts justifying the opinion.".
The challenged ADL blog post title ("Farrakhan Predicts Another Holocaust") appears at first blush to be a statement "capable of being proven true or false," but "the full context of the communication in which the statement appears [and] the broader social context and surrounding circumstances are such as to signal" to readers that what is being read "is likely to be opinion, not fact." The full title of the post, and its lede, indicate that its subject is the Savior's Day speech. The post contains direct quotes from that speech {such as "[t]he Synagogue of Satan has destroyed the country"}, including one that could be fairly interpreted as a reference to the Holocaust. [The relevant quote is this: {A Jewish man said to me, 'You know, we say never again. Never again will we be in the oven. Never again.' I said, 'Hold it.' You can say that to men, but you can't say that to God. Because the Bible says, behold the day cometh that shall burn—as a what?—as an oven.}] The full context of the communication indicates that its title is an interpretation of the facts disclosed within the article. The same is true for the statement in the SWC article that Farrakhan "invoked the New Testament's 'Synagogue of Satan' to demonize Judaism." …
The portion of the Ticketmaster Letter that implies Farrakhan has referred to "Jews as 'termites' and 'satanic' " does have "a precise meaning which is readily understood." It is either true or false that Farrakhan has said so. For these statements, however, Farrakhan has not alleged facts allowing a reasonable inference of either falsity or actual malice.
As to the implication that Farrakhan has referred to Jews as satanic, the Ticketmaster Letter ends with the hyperlinked statement that "[y]ou can learn more about Louis Farrakhan and the Nation of Islam on our website." The words "Louis Farrakhan" are hyperlinked; clicking the link leads to a webpage on which further direct quotes from Farrakhan are listed and which is itself attached as an exhibit to the SAC [Second Amended Complaint]. Several of those direct quote include Farrakhan's use of the phrase "satanic Jews." Thus, as to this challenged statement, Farrakhan has failed to allege falsity, an essential element of a defamation claim.
Finally, the SAC has not pled a defamation claim regarding Farrakhan's use of the word termites. As the SAC concedes, Farrakhan has stated the following: "When they talk about Farrakhan, call me a hater, you know how they do—call me an anti-Semite. Stop it, I'm anti-termite!" Again, Farrakhan has not pled facts that would "raise a reasonable expectation that discovery will reveal evidence" that Greenblatt or the ADL made the statement with knowledge of or reckless disregard as to the statement's falsity. To the contrary, the SAC itself alleges facts that would dispel any such expectation.
Thus, Farrakhan has not stated a defamation claim as to any of the challenged statements….
[As to Farrakhan's claim for injunctive relief,] enjoining defendants from expressing their beliefs regarding plaintiffs would amount to a "judicial order that suppresses speech … on the basis of the speech's content and in advance of its actual expression"—in other words, a prior restraint on speech. There is a "heavy presumption against the constitutional validity of any imposition of a prior restraint." Prior restraints constitute "the most serious and the least tolerable infringement" on our freedoms of speech. Nothing in the SAC comes close to meeting the "unequalled power of the presumption against prior restraint."
Farrakhan also claimed that the ADL's speech had caused various entities to deplatform him, but the court dismissed that claim as well.
Nathan Ellis Siegel and Adam Ivan Rich (Davis Wright Tremaine LLP) represent the ADL; Julie Gerchick and Patricia L. Glaser (Glaser Weil Fink Howard Jordan & Shapiro LLP) represent the Simon Wiesenthal Center.
