The Volokh Conspiracy
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Accusing Someone of "Support[ing] Neo-Nazi Causes" May Be a Factual Assertion and Therefore Libelous
From yesterday's decision of the N.Y. intermediate appellate court in Stiloski v. Wingate, by Justices Mark C. Dillon, Paul Wooten, Lourdes M. Ventura, and Donna-Marie E. Golia:
In [his LinkedIn] post, the defendant held himself out to be a "Nonprofit Leader and Consultant." As relevant to this appeal, the defendant referring to an individual, readily identifiable as Stiloski, stated that "[a] Tarrytown extremist who supports neo-Nazi causes and does a ton of business with the Village placed a massive sign on his place showing a graphic middle finger aimed at our Black community." The LinkedIn post also included the hashtag "# blacklivesmatter," as well as a photograph depicting various signs, one of which stated "ALL LIVES CAN'T MATTER UNTIL BLACK LIVES MATTER!!," and a flag outside of the Tarrytown Village Hall….
The defendant's statements in the LinkedIn post, under the circumstances and in the context made, did not constitute nonactionable pure opinion. The defendant did not call Stiloski a "neo-Nazi," which arguably can be pure opinion. Rather, the nuanced statements at issue in the LinkedIn post, namely that Stiloski was a "Tarrytown extremist who supports neo-Nazi causes," can "readily be proven true or false" and, under these circumstances, in which the defendant held himself out to be a "Nonprofit Leader and Consultant" and the amended complaint alleged that the defendant is a well-known community activist, "signaled to the average reader or listener that the defendant was conveying facts about the plaintiff." Alternatively, the statements in the LinkedIn post are those of mixed opinion and, therefore, actionable, as "a reasonable reader would have inferred that the poster had knowledge of facts, unknown to the audience, supporting the assertions made."
The plaintiffs further sufficiently alleged in the amended complaint that the statements made in the LinkedIn post were detrimental to them. Specifically, the amended complaint alleged that in July 2022, a potential customer refused the plaintiffs' services and called Stiloski a "racist" and a "white supremacist." Additionally, the plaintiffs alleged that the automotive business suffered as a result of the defendant's actions, notably that a local church ceased doing business with the plaintiffs, among other things.
The plaintiffs further alleged that the defendant's "actions were taken with malice based on extreme animus and hatred," and that his conduct was "knowingly malicious, willful and wanton and/or showed reckless disregard" for the plaintiffs' rights. Thus, the plaintiffs demonstrated that the causes of action alleging defamation and defamation per se, as well as the other causes of action that were predicated upon the alleged defamatory communication at issue, under these circumstances, had a substantial basis in law.
The court therefore allowed plaintiff's claim to go forward past the anti-SLAPP motion to dismiss stage; of course, there has yet to be a determination whether the defendant's allegations were false, were said with the requisite mental state, and so on.
For more on this legal question, and the distinction between allegations of racism/Communism/etc. and allegations of specific acts, see this post.
Andrew C. Quinn, Lalit K. Loomba, and Marykate Acquisto (Quinn Law Firm) represent Stiloski.
