Empty Threats to Sue Donors of Entity That Allegedly Defamed You Could Be Tortious

American Muckrakers PAC, Inc. v. Boebert (D. Colo. June 9, 2024) (just recently posted on Westlaw) stemmed from the PAC and journalist David Wheeler making various allegations about Rep. Lauren Boebert. Rep. Boebert said they were all lies, threatened to sue Wheeler (which she did), and also "threatened donors to Plaintiff American Muckrakers PAC, Inc., in a … statement to the media," saying "Muckrakers' sloppy, reckless, and wildly irresponsible actions have created substantial legal liability for Muckrakers, David Wheeler in his personal capacity, and each donor to the organization who chose to fund the effort knowing it would result in defamation."

The PAC and Wheeler sued for various torts, including defamation (based on Boebert's claims that plaintiffs had been lying) and interference with contract and prospective advantage. Magistrate Judge Kathryn Starnella recommended that the defamation claims be dismissed under the Colorado anti-SLAPP statutes, on the grounds that plaintiffs hadn't introduced enough evidence that Boebert knew that her allegations of Wheeler's lying were false or likely false ("actual malice"); for more on that, see the opinion itself.

But the Magistrate Judge recommended that the tortious interference claim based on the threats of litigation against the donors be allowed to go forward, reasoning:

The … third, fourth, and fifth factors [of the interference tort, as set forth by the Restatement (Second) of Torts,] "require[ ] a balancing of the parties' conflicting interests to determine whether the interference was warranted under the particular circumstances[.]" Here, both Plaintiffs (and their donors/sponsors) and Defendant were engaged in First Amendment activity, so their interests are neutral. The social interests weigh in favor of Plaintiffs' contractual interests because Plaintiffs rely on donations to perform their work reporting on matters of public interest (and their donors/sponsors express themselves through monetary contributions), while Defendant enjoys a large platform by virtue of her elected office.

While Defendant has an interest in protecting her reputation, even through litigation, Plaintiffs' donors and sponsors have a weightier interest in exercising their First Amendment right to engage in political speech (in the form of financial donations to political action committees) without fear of retaliation. The Court finds no social value in allowing elected officials to silence speech they dislike by threatening gadfly journalists' donors, who have not themselves engaged in any unlawful or tortious activity.

Turning to the Restatement's sixth factor, the close temporal proximity between Defendants' comments and the diminished donations, including from donors who cited the threat of litigation, demonstrates the proximity of Defendant's conduct to the interference.

Finally, while the parties have no contractual or commercially competitive relationship, the Court finds that the Restatement's seventh factor (the relations between the parties) weighs toward a finding of impropriety because Defendant is an elected official with a large platform and access to multiple media platforms, while Plaintiffs' speech concerning matters of public interest and Defendant, a public official, relies upon donors' and sponsors' support.

Overall, the Court finds that Plaintiffs have demonstrated a reasonable likelihood of proving that Defendant's threats of litigation against donors/sponsors (as opposed to her allegedly defamatory comments about Plaintiffs and her threats of litigation against Plaintiffs) were improper. In making this finding, the Court emphasizes that the "determination that [Plaintiffs have] demonstrated a reasonable likelihood of success is in no way an opinion that [they] will actually prevail."

After the report was handed down, the parties settled and the case was dismissed.

As the Restatement notes,

The use of [threats of litigation] is ordinarily wrongful [and thus potentially tortious] if the actor has no belief in the merit of the litigation or if, though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication.

To be sure, lawsuits against major donors who donate a lot of money to entities that they know will use the money to engage in defamation might be viable. See Restatement (Second) of Torts § 876(b) ("For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he … knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself"). But the tort requires substantial assistance; to quote the comments to § 876(b),

The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.

Given that the PAC had raised hundreds of thousands of dollars, and the largest donation (according to FEC disclosure forms) seemed to be under $3000, the threat of lawsuits against donors did appear likely to be empty.