Lawsuit by Hunter Biden's Lawyer Kevin Morris Against Conservative Activist Garrett Ziegler Can Go Forward
The remaining claims are for impersonation and portraying Morris in a false light by quoting out of context.
In yesterday's California Court of Appeal decision in Morris v. Ziegler, written by Justice Judish Ashmann-Gerst, joined by Justices Elwood Lui and Victor Chavez:
Morris's claims arise from allegations that defendants impersonated a Democratic fundraiser to obtain personal information about Morris's client, Hunter Biden (Biden), and the then-emerging political and legal controversy surrounding his laptop (the Biden laptop)….
Ziegler worked as a political aide and White House staff member during President Donald Trump's first administration. In 2020, Ziegler transitioned to a private-sector career as an activist, publishing online exposés about President Trump's political opponents and their associates.
In July 2021, Ziegler founded Marco Polo, which he describes as "a research group whose mission is to expose corruption and blackmail." Ziegler distributes his exposés through Marco Polo's Web site, as well as its associated pages on various social media platforms.
Morris is an attorney. In 2019, he began representing Biden, the son of then-President Joseph Biden….
In May 2022, several news outlets reported that Morris was financially supporting Biden. On May 19, 2022, Ziegler—using the name of a major fundraiser for the Democratic party, Jon Cooper (Cooper)—began texting Morris for information about Biden. Believing that "Cooper" wanted to help Biden, Morris gave him "information and analyses" about the Biden laptop.
On May 29, 2022, "Cooper" texted an image of a cartoon purple squid perched atop planet Earth, circled by the words "Marco Polo" and "NOTHING IS BEYOND OUR REACH." He then texted that Morris "ha[d] given us plenty. Thank you!" Morris immediately began referring to "Cooper" as "Garrett[,]" apparently realizing that he was actually communicating with Ziegler.
Morris and Ziegler then began antagonizing each other over text. At this point, Ziegler demanded that Morris "immediately cease and desist any and all further threats and/or harassing messages, communications and [similar] activities of any kind[,]" and informed Morris that he would "document[] all communications for potential civil, criminal, and historical purposes."
Morris responded with a series of insults and invectives, including the following threat of legal action: "We have 8 [Southern District of New York (SDNY)] prosecutors on our team. [¶] All this took was a phone call. [¶] 8 lawyers with 10 + years as [Assistant United States Attorneys] in SDNY… . [¶] … [¶] You're going to prison and we're going to get all of the money your family has and you will work for us for the rest of your life. [¶] You'll come to my house everyday and wash my car. [¶] … [¶] … We will follow you to the ends of the earth." …
Within roughly 75 minutes of sending the initial "Marco Polo" image to Morris on May 29, 2022, Ziegler posted a screenshot of the message on social media.
The following day, Ziegler posted additional portions of his text message conversation with Morris on Truth Social, saying that he "[j]ust got threatened by … Biden's attorney and fixer, … Morris."
Ziegler also distributed Morris's address and phone number to his social media followers; shortly after telling his followers about "MPolo's first move[,]" Ziegler said that "[w]e will be sending our Report" on the Biden laptop "to Morris at his home[,]" and solicited people to hand out flyers about Morris near his home. On the internet messaging service Telegram, users in Ziegler's feed suggested that they could help by calling and texting Morris en masse, and driving to his home. A few said that they had already begun calling him.
In October 2022, Marco Polo published a 644-page report about the Biden laptop. The report, which was widely reported on, included excerpts of Ziegler and Morris's text exchange, as well as photos of Morris and his family members.
Morris alleged that after these publications, he was "continually harassed via phone calls by numerous different people[,]" and feared people "driving past his houses."
The court rejected Morris's claims for violation of the California criminal doxing statute, on the grounds that this particular statute doesn't provide a civil remedy. (There's now a civil doxing statute in California, but it only became effective Jan. 1, 2025.) The court likewise rejected Morris's tort claims for civil harassment, on the grounds that the California harassment statute provides only a special form of injunctive relief, and not damages. But the court allowed Morris's claim for impersonation to go forward:
As relevant here, section 529 of the Penal Code provides criminal liability for "[e]very person who falsely personates another in either his … private or official capacity, and in that assumed character" "[d]oes any other act whereby, if done by the person falsely personated, he might … become liable to any suit or prosecution … or whereby any benefit might accrue to the party personating, or to any other person."
Morris met his burden of demonstrating minimal merit on this claim. Morris alleged—and provided text messages to support—that Ziegler contacted him, pretended to be Cooper, and used that guise to obtain private information….
Defendants also argue that Morris's criminal impersonation claim should fail for the same reason as his doxing claim—namely, that the claim is based on a violation of a penal statute that does not provide a private right of action. However, defendants did not raise this argument below. And their arguments on appeal are conclusory, comprising roughly six sentences across the appellate briefs and lacking any analysis of the statute's text or legislative history.
The court also allowed Morris's false light claim to go forward (together with Morris' related intentional infliction of emotional distress claim); a false light claim essentially requires knowingly or recklessly false statements that are highly offensive to a reasonable person:
Morris alleges that defendants selectively published his text messages to create the false impression that Morris baselessly harassed defendants to chill their scrutiny of him and his powerful political associates. To that end, Morris submitted screenshots of multiple social media posts; in these posts, Ziegler accused Morris of threatening him and published a handful of Morris's text messages without context (i.e., that Ziegler provoked Morris's outbursts by impersonating Cooper for weeks to obtain confidential information)….
The bombastic text messages are highly offensive, as is the implication that Morris improperly wielded his money and influence to silence political opponents. And because defendants both participated in the original text thread (as described above), they knew—or, at the very least, recklessly disregarded—the false impression that would be created by publishing the messages without context.
These facts sufficiently establish that Morris's false light claim has the minimal merit required to survive an anti-SLAPP challenge….
Defendants only challenge Morris's IIED [intentional infliction of emotional distress] claim by reprising their unsuccessful false light arguments, contending that Morris failed to show actual malice. (See Reader's Digest Assn. v. Superior Court (Cal. 1984) [if "based upon the same facts as [a] cause of action for libel[,]" IIED claim against a public figure requires a showing of actual malice].) For the same reasons described above, their IIED argument fails….