Court Rejects First Amendment Claims Against NYPD Commissioner Brought by "Most Wanted CEOs" Card Makers

From yesterday's decision by Judge Hector Gonzalez (E.D.N.Y.) in Harr v. City of N.Y.:

In 2003, in connection with the invasion of Iraq, the United States Department of Defense developed a deck of playing cards, titled "Iraqi Most Wanted," to help familiarize troops with members of Saddam Hussein's government and inner circle. Approximately 20 years later and days after UnitedHealthcare CEO, Brian Thompson, was shot and killed, Plaintiffs James Harr and Comrade Workwear, LLC developed a deck of cards, modeled after the U.S. military's deck, titled "Most Wanted CEOs." … Plaintiffs' cards:

featured a well-known corporate executive, their affiliated company, and a QR code linking to educational content about the harm their company allegedly caused, with each suit representing an industry—pharmaceuticals and chemicals, essential goods and housing, finance and tech, and weapons and oil—all based on public information, with no contact details or other personal information included.

On December 15, 2024, Plaintiffs unveiled the final designs for the Most Wanted CEO cards and launched preorders. The product description for the cards read: "For educational and entertainment purposes only." Later that day, NYP [the New York Post] published an article on its website that claimed Plaintiffs "call[ed] online for the death of corporate executives" and linked "the release of the playing cards to the recent homicide of UnitedHealthcare CEO Brian Thompson" (the "Article"). The Article included a screenshot of one of Plaintiff's social media posts which contained the phrase: "The CEO must die." The screenshot in the Article omitted Plaintiffs' caption to the post, a "disclaimer" that read, in part: "When we say the CEO must die, we mean the structure of capitalism must be broken."

On December 16, 2024, NYP published the Article as its cover story. Overnight, the Article, and, consequently, Plaintiffs' playing cards were front-page news. That same morning, New York City Police Department ("NYPD") officers arrived at Harr's home and spoke with his fiancée. A little later, officers interviewed Harr at his workplace and "questioned him about the cards and whether he had violent intent or ties to any extremist groups." Plaintiffs allege Harr informed the officers that "he was an independent artist running a merchandise company, that the cards were a symbolic and educational project, and that he had [already] made public disclaimers rejecting violence."

The next day, [NYPD] Commissioner Tisch spoke at a press conference announcing that an individual had been arrested in connection with the investigation of Mr. Thompson's homicide (the "December Press Conference"). Plaintiffs allege that Commissioner Tisch "held up [the print edition of the Article] and falsely described [Plaintiffs'] playing cards as a 'hit list,' call[ed] him an 'extreme activist,' and part of a 'lawless, violent mob' calling for the 'targeted assassination' of CEOs." …

The Commissioner's statements, Plaintiffs claim, marked the inception of a campaign to punish Plaintiffs for the cards. In their view, the Article, NYPD interviews, and December Press Conference were part of "a coordinated effort to distort the nature of [Plaintiffs'] work and publicly reframe [them] as a threat in order to support a broader narrative around political violence and public disorder."  Before and after the December Press Conference, Plaintiffs were "de-platformed" (i.e., permanently disabled from accessing) several social media and e-commerce platforms that were integral to their business.

Approximately two months after the December Press Conference, law enforcement officials from the NYPD "served a seizure warrant on the FedEx facility where Plaintiff[s'] inventory of playing cards was being stored, resulting in the confiscation of [their] entire preorder shipment." Plaintiffs assert that confiscation of their merchandise was carried out at the behest of Commissioner Tisch and part of Defendants' coordinated effort to "systematically strip[ ] [Plaintiffs] of access to the platforms and tools that allowed [them] to speak, sell, and operate," and inflict "reputational, financial, and constitutional harm." …

Plaintiffs sued Commissioner Tisch, arguing that she unconstitutionally retaliated against them based on their constitutionally protected speech. The court concluded that plaintiffs had sufficiently alleged that their speech didn't fall within the First Amendment exceptions for true threats and incitement:

A "true threat" is a "'serious expression' conveying that a speaker means to 'commit an act of unlawful violence,'" regardless of whether "the speaker is aware of, and intends to convey, the threatening aspect of the message." …

"[A]ccept[ing] as true all of the factual allegations set out in [Plaintiffs'] complaint," and "draw[ing] inferences from those allegations in the light most favorable to [Plaintiffs]," as the Court must at this juncture, the Court concludes that the speech at issue does not constitute a true threat because Plaintiffs' speech does not amount to "serious expression[s] of [their] intent to commit an act of unlawful violence to a particular individual or group of individuals." The playing cards are not enough to convey to a reasonable listener that they were intended as a threat of violence against the "well-known corporate executive[s]" featured on them. The cards included anodyne, publicly-available information about the executives and "educational content about the harm their compan[ies] allegedly caused." Simply, the cards do not convey anything about Plaintiffs' intent. At most, the cards are suggestive, but that is far from a serious expression of violent intent. And, any incidental suggestion of violence is negated by Plaintiffs' disclaimers.

Plaintiffs' statement that "[t]he CEO must die" also cannot reasonably be interpreted as a serious threat of injury. As a practical matter, that statement is directed at "the CEO"—an archetypal executive, not a particular individual or group—and, again, Plaintiffs' disclaimer in the caption of the social media post clarifies that the statement was not one of violent intent, but a more general critique of capitalism writ large.

Plaintiffs' statement "calling Mr. Thompson's killer a 'fucking hero'" does not reflect a threat at all—serious or otherwise. The statement, standing alone or considered alongside the others, may be coarse or disquieting, but that does not remove its First Amendment protection. If anything, it does the opposite.

As for Plaintiffs' statements that purportedly encouraged their social media followers to "do more" to identify where another healthcare CEO lived, City Defendants' argument is far too speculative to establish it as an expression of violent intent, let alone a serious expression of violent intent against that person.

{Had City Defendants argued that this particular statement was incitement, they might have had a stronger point. Ultimately, however, that argument would also fail because there is "no evidence or rational inference from the import of the language, that [Plaintiffs'] words were intended to produce, and likely to produce, imminent disorder." See Brandenburg v. Ohio (1969) (Speech is presumptively protected unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.").}

Even if the Court were to take the playing card design and all the accompanying social media statements together, it cannot conclude that "an ordinary, reasonable recipient who is familiar with the context of the communication would interpret it as a threat of injury." Thus, Plaintiffs' speech is not a true threat. Nor is it incitement, obscenity, or any other form of unprotected speech; it is protected speech. Plaintiffs are constitutionally entitled to condemn and disparage well-known executives of major corporations….

The court didn't consider whether the speech might have fallen within the related but separate exception for solicitation of crime against a specific person (presumably because that argument hadn't been raised); see this post for more on that exception, which the Supreme Court has recognized in recent cases, including U.S. v. Hansen (2023).

But the court nonetheless rejected plaintiffs' First Amendment claims, because it concluded that they hadn't adequately alleged that Commissioner Tisch took adverse action against plaintiffs:

At bottom, the relevant "action" that Plaintiffs allege is an adverse action for purposes of their First Amendment claim is Commissioner Tisch's speech at the December Press Conference. That is insufficient because speech, in response to speech, is not an adverse action, even if it is harsh…  "[I]t is well settled that criticism of [a speaker] alone" does not amount to an adverse action "for retaliation purposes." …

Even if Commissioner Tisch's statements are read "in the light most favorable" to Plaintiffs, they would not "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." In condemning Plaintiffs' speech, Commissioner Tisch exercised her own First Amendment rights…. [T]o interpret Commissioner Tisch's constitutionally protected speech as an adverse action would effectively flip the First Amendment on its head and allow Plaintiffs to enlist the judiciary to block speech that they do not like….

Even if the Court credited Plaintiffs' speculative argument that Commissioner Tisch's statements amount to an adverse action, their First Amendment Retaliation claim would fail, nonetheless, because Plaintiffs' theory of causation is supported only by their own conclusory allegations.

The Court disagrees with Plaintiffs that it is reasonable to infer that Commissioner Tisch's statements and her official position "significantly encouraged" or "influenced" third parties to remove Plaintiffs' access to social media and e-commerce platforms. Nor does the Court agree that "[t]he timing and context make the causal link [between Plaintiffs' speech and seizure of their work] unmistakable."  Both of those assertions are far too attenuated to be plausible. Indeed, a significant amount of second- and third-order thinking is necessary to find it plausible that Commissioner Tisch's statements at the December Press Conference were intended to set off a chain of events ultimately designed to silence Plaintiffs or others from participating in public dialogue. In fact, to conclude that Plaintiffs' speculative and conclusory allegations are sufficient to survive City Defendants' Motion to Dismiss, the Court would have to make a series of unreasonable inferences.

For example, Plaintiffs assert that the de-platforming decisions were made because of Commissioner Tisch's statements on December 17, 2024. For the Commissioner's speech to have the outsized effect that Plaintiffs claim it did, one might expect that all the de-platforming decisions were made after the December Press Conference. But, according to Plaintiffs, their "main Instagram account was permanently banned" a day before Commissioner Tisch said anything about Plaintiffs publicly.

One also might expect there to be some allegation that Instagram, TikTok, YouTube, Shopify, or other platform providers were directed to disable Plaintiffs' accounts, or at least that they provided some pretextual reason for the decisions. Plaintiffs allege neither. In fact, they concede that the platforms explained their decisions were based not on the Commissioner's or the City's say-so, but on the platforms' own internal policies or decisions from "its banking partners, including Mastercard and Visa." In that case, one might expect, if nothing else, that there would be some allegation that the platform providers saw or knew about Plaintiffs' playing cards, or Commissioner Tisch's statements. But there are no such allegations in the Amended Complaint….

The court also rejected plaintiffs' claims that Commissioner Tisch violated their federal constitutional rights by, essentially, defaming them in a way that imposed "a material state-imposed burden or state-imposed alteration of [their] status or rights" (to oversimplify slightly). The court concluded, among other things, that plaintiffs' hadn't "plausibly allege[d] defamation":

The first allegedly defamatory statement Plaintiffs highlight is that Commissioner Tisch "falsely described [Plaintiffs'] playing cards as a 'hit list.'" However, based on the Court's review of the entirety of the December Press Conference, Commissioner Tisch does not use the term "hit list" once during her address….

Plaintiffs also allege that Commissioner Tisch made defamatory statements … when, while holding up a copy of the December 16, 2024, New York Post, she said: "Yesterday the New York Post reported that some extreme activists were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination." Plaintiffs take issue with two parts of that statement. They object to Commissioner Tisch's use of the term "extreme activists," and they object to her assertion that the so-called activists were "circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination." …

First, the Commissioner's description of certain individuals as "extreme activists" is not defamatory because it is nonactionable opinion. "New York law protects derogatory statements which may be categorized as 'opinion' as opposed to 'fact.'" …

At the December Press Conference, after summarizing an uptick of "shocking and appalling celebration[s] of cold-blooded murder" in the wake of the Thompson homicide, Commissioner Tisch used the phrase "some extreme activists" to describe a subset of individuals who "were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination," Here, it is clear that "extreme activists" is an expression of the Commissioner's opinion, not fact. When analyzed in context, the term is used as an insult, a denigration of those who make light of tragedy. It is not an official edict, nor is it "precise, unambiguous [or] definite." Moreover, because the term was "accompanied by a recitation of the facts upon which it [was] based," it is pure opinion. When considered in context, it is merely an epithet and "hyperbole and therefore not actionable opinion."

Even if "extreme activists" was not an expression of Commissioner Tisch's view of individuals capitalizing on the homicide of Mr. Thompson, it is not defamatory because it is substantially true…. Recall that, in context, "extreme activists" was used, among other things, to describe individuals who "were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination." That is substantially true based on Plaintiffs' own allegations. Harr is a self-described "activist and political artist." Plaintiffs concede that their designs were well-received and garnered positive attention from their followers on social media….

As for the second component of the Commissioner's statement—that individuals "were circulating a deck of cards with other Most Wanted CEOs to be targeted for assassination"—the same point applies. This part of the statement may not be completely true, but it need not be, as long as "the overall gist or substance of the challenged statement is true." Given the context of the December Press Conference and the circumstances surrounding it, the Court concludes that describing Plaintiffs' product as "a deck of cards with other Most Wanted CEOs to be targeted for assassination" captures the "overall gist."

As a preliminary matter, the entire project was inspired by the "Iraqi Most Wanted" cards issued to soldiers in 2003 to help them identify key members of Saddam Hussein's inner circle. This inspiration is apparent in the cards themselves, which, as depicted in the Article, include imagery reminiscent of shooting-range targets. Moreover, the print edition of the Article draws a not-so-subtle connection between Plaintiffs' cards and a "twisted card game to hunt down

The fact that Commissioner Tisch did not explicitly mention Plaintiffs' disclaimers renders her statements not "completely true," but it does not mean that "the overall gist" of her statement is demonstrably false. Taken together, "the full context of the communication in which the statement appears," and "the broader social context or setting surrounding the communication," an individual could arrive at the same conclusion Commissioner Tisch did. Accordingly, the Commissioner's description of the playing cards was substantially true….

Commissioner Tisch's third statement, which characterizes social media threats against executives in the wake of the Thompson homicide as "the threats of a lawless, violent mob" … is nonactionable opinion….

Given that the federal claims were dismissed, the court left the purely state law claims (including a defamation claim) to state courts.  For more on that, and on the claims related to the seizure of the materials, see the full opinion. Plaintiffs had also sued the N.Y. Post, but dropped those claims.

Gregory J.O. Accarino represents Commissioner Tisch and the city.