The Volokh Conspiracy
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"Israeli Spy" Allegations Against Consultant Involved in Examining Hunter Biden's Laptop May Be Defamatory
From yesterday's opinion by Judge Michael Nachmanoff (E.D Va.) in Apelbaum v. Bloom:
Yaacov Apelbaum is the founder of XRVision, Ltd., a cybersecurity and analytics company. Plaintiffs Apelbaum and XRVision … attracted media attention in 2020 for their role in examining Hunter Biden's laptop computer, purportedly "analyz[ing] the contents" of a copy of the hard drive "to determine the legitimacy of the [l]aptop."
[Defendant] Jordan Arthur Bloom … is an independent journalist who maintains a blog on the platform Substack. On January 29, 2024, Defendant published an article, "The Role of Yaacov Apelbaum in the Hunter Biden Drama" ("First Article")…. The alleged defamatory statements in the First Article include:
- "Yaacov Apelbaum is an Israeli spy, and the sort of Israeli spy who would have good reasons to smear American facial recognition technology, because his company, XRVision, is a competitor."
- "XRVision has provided sourcing to a bunch of conservative publications, including the Washington Times. So this is an Israeli spy who's deeply involved in shaping the Hunter Biden story."
- "What the case of Apelbaum actually represents is how badly the conservative movement has been penetrated by Israeli intelligence, at the level of human intelligence and technology contracting."
- "It is a sad thing to watch an old man and American president be run around like this by dual loyalists and spies."
These statements were published on Defendant's Substack and also to thousands of viewers on Twitter and other platforms, then were "subsequently and virally" republished on other websites. Defendant intentionally failed to conduct any investigation before publishing these statements and "made zero effort to contact Plaintiffs to seek out their knowledge or position to include in his article."
In November 2024, Plaintiffs' attorney sent Defendant a cease-and-desist letter demanding he retract the article and apologize. On November 23, 2024, Defendant both responded via letter and published another article on his blog ("Second Article") reaffirming the First Article's statements and hyperlinking to the First Article….
Plaintiffs sued, and the court allowed the case to go forward:
[i.] Plaintiffs set forth an actionable statement (defamation per se)….
A statement is considered defamation per se [and thus actionable without proof of tangible loss -EV] if, among other things, it "prejudice[s] such person in his or her profession or trade." Defendant argues that "identification as an Israeli spy is [not] inherently damaging to one's reputation in business."
Keeping in mind that at this procedural juncture the Court is obliged to assume the truth of Plaintiffs' factual allegations, Plaintiffs' assertions overcome any dispute as to the "inherent" reputational impact of these statements. The complaint submits that Plaintiffs work in the cybersecurity industry, and Plaintiffs "periodically work[ ] with the [United States] government" in this field. This Court concludes that allegations of close ties to a foreign intelligence agency could prejudice a cybersecurity professional and his firm….
[And a]t this stage, the Court must credit the Plaintiffs' well pled allegation of the factual falsity of the statements. The complaint alleges the statements are factually false, citing in support that "Mr. Apelbaum [has] renounced his Israeli citizenship and is presently a citizen of the United States of America, only," that "Mr. Apelbaum is not a foreign agent," and that Defendant "conceived a storyline in advance of any adequate investigation and then consciously set out to insert Plaintiffs into his preconceived narratives." …
[ii.] Actual [m]alice …
[B]ecause Plaintiffs have alleged that Bloom made his statements with actual malice, this Court need not resolve at this juncture whether or not Plaintiffs constitute public figures.
Actual malice requires "knowledge that [the statement] was false or … reckless disregard of whether it was false or not." Contrary to Defendant's claims, the complaint makes numerous allegations that go to actual malice: that "Bloom merely relied on tropes and his own pre-existing bigotry and biases, devoid of facts, and he knowingly sought to harm, and did harm, Plaintiffs," that he "deliberately avoided conducting any investigation into Plaintiffs and made zero effort to contact Plaintiffs," that he "has a history of writing anti-Semitic articles that accuse Jews and Israel of manipulating and/or controlling the U.S. government," and that his "publications and pattern of publishing are evidence that he conceived a storyline in advance of any adequate investigation and then consciously set out to insert Plaintiffs into his preconceived narratives as discussed throughout the Complaint."
Other cases have found actual malice in quite similar circumstances. In a defamation case where the plaintiff was accused by media sites of orchestrating the violence at the "Unite The Right" rally in Charlottesville, VA, it was enough for the plaintiff to allege "that Defendants 'twisted' elements of his personal and professional history to fit a pre-conceived narrative." Gilmore v. Jones (W.D. Va. 2019). There, as here, the defendant was alleged to have shoehorned his statements into a preconceived "storyline" and "departed from even the most basic journalistic standards by, for instance, failing to reach out to [Plaintiff]." Accordingly, Plaintiffs' allegations of Defendant's lack of due diligence and shoehorning of their actions into a preconceived narrative about Israelis and Jews are adequate to plead actual malice….
Timothy Hyland (Hyland Law PLLC) and John C. Burns (Burns Law Firm) represent Plaintiffs.
