The Volokh Conspiracy

From Godlewski v. Kelly, decided last week by Judge Terrence Nealon (Pa. Ct. Common Pleas, Lackawanna County); the opinion is over 13,000 words long, so this is just an excerpt:

A self-proclaimed "patriot reporter," who claims to be "one of the highest Anons" in the QAnon movement and to earn $5,000,000.00 per month from his QAnon broadcasts on social media, has instituted this litigation advancing claims for defamation and false light invasion of privacy against a newspaper and its op-ed columnist based upon an article that they published on February 14, 2021.

The ironic gist of the opinion column at issue was that the QAnon broadcaster, who affirmatively states in his published videos on social media that certain high-ranking elected and public officials are satanic, cannibalistic pedophiles sexually abusing children and drinking their blood to ingest the life-extending chemical adrenochrome, previously pled guilty in this county to corruption of a minor resulting from a sexual relationship with a 15-year-old girl while he was a 27-year-old baseball coach at her school….

Godlewski contends that the article of February 14, 2021, contains three factual statements that are false and defamatory. First, he alleges that the article falsely stated that he "had a sexual relationship" with Ms. DuBorgel when she was a minor. Second, Godlewski asserts that by using the word "Unreal-tor" to describe him, the article falsely made an "imputation that [he] was not fit to be a realtor." Third, he avers that Kelly's article falsely tied "Godlewski to the criminal insurrection at the Capitol on January 6" where there "were criminal acts for which people have been criminally prosecuted and criminally convicted." {Godlewski does not allege that Kelly's representations relating to Godlewski's active involvement with and support of the QAnon movement are untrue or defamatory.} …

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From Richards v. Union Leader Corp., decided Wednesday by the N.H. Supreme Court, in an opinion by Justice James Bassett, joined by Chief Justice Gordon MacDonald and Justice Patrick Donovan (for more on the general legal principle here, which emerges from mid-1900s concluding similarly as to allegation of Communist sympathies, see this post):

The plaintiff is the father of two children enrolled in the Hanover School District …. In 2021, the district "began sending parents an increasing number of communications about [its] increasing focus on 'equity' and 'anti-racism.'" The communications indicated that the district was planning "significant curricular changes around these issues." The plaintiff was "concerned by materials that he learned were in use in the school district." While he believed the curricular changes were "well-intentioned," the plaintiff believed that the changed curriculum was "deeply divisive and ultimately harmful to the goal of a quality education and a society where everyone is treated equally."

As a result of his concerns about the district's proposed curriculum changes, the plaintiff supported "legislation that prohibits New Hampshire schools from teaching children that they are 'inherently racist, sexist, or oppressive, whether consciously or unconsciously.'" The parties agree that this legislation was House Bill 544 (HB 544). The plaintiff submitted public testimony in favor of the bill.

The Union Leader published an op-ed written by defendant Azzi, titled "White supremacists reveal content of their character," and saying, among other things (I'm excerpting the allegedly defamatory statements here),

Desperate to stay bonded to America's original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology ….

Those who favor whitewashing history—favor suppressing the grievances and rights of Americans unlike themselves—favor suppressing the franchise of citizens who don't look like them—have shown they'll lie … to protect their privilege and power ….

Plaintiff sued for defamation, but the court said that, in context, these statements would be understood by reasonable readers as statement of opinion, not of provable fact:

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From Sackler v. ABC, Inc., decided Wednesday by N.Y. trial judge Franc Perry:

[This defamation] action is based on the defendants' mistaken use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin endemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. The defendant, NYP HOLDINGS, INC., publishes the "N.Y. Post" which is a daily publication that is available worldwide in hard copy and online editions….

Plaintiff alleges that the N.Y. Post used a photo of him instead of the David Sackler of Purdue Pharma in an online article about the Sackler family of Purdue Pharma published on May 12, 2019. Mr. Sackler notes that the photograph utilized by the Post he is holding a bottle of Trimwater, a beverage distributed by his company, Lifestyles Beverages, Inc. The Post's story also ran in its printed edition which featured the same photograph but had been cropped and did not show the beverage from the plaintiff's company. Mr. Sackler also alleges reputational harm when the NY. Post published a different picture of him again holding a bottle of Trimwater in a [different] online article entitled "Met to reject gifts from the Sacklers amid the fury over the opioid crisis." …

Mr. Sackler cites specific examples of reputational harm that occurred in California, Florida, New Jersey and New York due to the defendant's use of his photograph when reporting on the opioid crisis. Mr. Sackler also points to phone calls and a Facebook message received from people in Maryland, Michigan and Texas regarding the use of his image in articles reporting on the David Sackler of Purdue Pharma. In addition, Mr. Sackler alleges multiple incidents of harm and steps taken to avoid additional harm. For example, being asked in business meetings about the publications or needing to make restaurant reservations under a different name or changing his appearance to avoid being accosted or attacked and that such a fear was especially heightened when out with his family.

The question is whether the court should apply New York law, or the law of New Jersey, where Sackler resides. Under New York law that existed as of the time of the publication, private figure plaintiffs could recover demonstrated compensatory damages based on a finding of gross negligence. New Jersey, however, has long required a showing of "actual malice"—i.e., knowing or reckless falsehood—for all plaintiffs, so long as the statement was on a matter of public concern. (New York has recently joined New Jersey on this, by statute, but that statute has been held not to be retroactively applicable.) The First Amendment requirement in such situations is a showing of negligence, but states can impose higher requirements.

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Here's the exchange, from defendant's declaration in Hart v. Carver (D. Md.):

And here's the defendant's account of the facts (which is considerably more detail than the account in the plaintiffs' Complaint):

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