Plaintiff’s Statement of Recent Decision CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
- Date
- 2021-05-05
Summary
A Statement of Recent Decision filed April 23, 2021 as Document 88 by plaintiff Children's Health Defense in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California, before Hon. Susan Illston, for a hearing set May 5, 2021. Under Civil Local Rule 7-3(d)(2), it brings to the court's attention the March 18, 2021 decision in Project Veritas v. The New York Times Company, et al., Index No. 63921/2020, from the Supreme Court of the State of New York, County of Westchester. The statement says the decision is relevant to its argument that describing its posts as deceptive, false and without evidence were assertions of fact. Exhibit A is the Decision and Order by Justice Charles D. Wood, which denies the motion to dismiss that defamation complaint and denies relief under the Anti-SLAPP statute.
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Case 3:20-cv-05787-SI Document 88 Filed 04/23/21 Page 1 of 20
1 ROGER I. TEICH
California State Bar No. 147076
2 290 Nevada Street
San Francisco, CA 94110
3 Telephone: (415) 948-0045
E-Mail Address: rteich@juno.com
4
ROBERT F. KENNEDY, JR.
5 MARY HOLLAND
Children’s Health Defense
6 1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
7 Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
8
Attorneys for Plaintiff
9 CHILDREN’S HEALTH DEFENSE
10 UNITED STATES DISTRICT COURT
11 NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13 Case No. 3:20-cv-05787-SI
CHILDREN’S HEALTH DEFENSE,
14 PLAINTIFF’S STATEMENT OF
Plaintiff,
15 RECENT DECISION
v.
16 Hon. Susan Illston
Courtroom 1 – 17th Floor
17 FACEBOOK, INC., et al., Date: May 5, 2021
Time: 10:30 a.m.
18 Defendants.
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Plaintiff’s Statement of Recent Decision
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 88 Filed 04/23/21 Page 2 of 20
1 STATEMENT OF RECENT DECISION
2 Pursuant to Civil Local Rule 7-3(d)(2), Plaintiff Children’s Health Defense (“CHD”) respectfully
3 submits this Statement of Recent Decision to bring to this Court’s attention the decision of the Supreme
4 Court of the State of New York, County of Westchester (Wood, J.), in Project Veritas v. The New York
5 Times Company, et al., Index No. 63921/2020, at 5-6 (Sup. Ct. Westchester Cnty., NY March 18, 2021),
6 notice of appeal filed April 8, 2021, available at
7 https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=q1mYZza26a2VDhsyYtb_PLUS_mw
8 = =. A true and correct copy of that decision is attached hereto as Exhibit A. The decision was filed on
9 March 18, 2021, after briefing was completed on Defendants’ Motions to Dismiss the Second Amended
10 Complaint. The decision is therefore appropriate for consideration by the Court. See Civil L.R. 7-3(d)(2)
11 (“Before the noticed hearing date, counsel may bring to the Court’s attention a relevant judicial opinion
12 published after the date the opposition or reply was filed by filing and serving a Statement of Recent
13 Decision, containing a citation to and providing a copy of the new opinion – without argument.”). The
14 Project Veritas decision is relevant to Plaintiff Children’s Health Defense’s argument that Defendants’
15 use of the terms “deceptive,” “false,” and “without evidence” to describe Plaintiff’s posts were
16 assertions of fact, not “mere opinion incapable of being judged true or false.” See Project Veritas v. The
17 New York Times Company, et al., Index No. 63921/2020, at 5-6.
18 Dated: April 23, 2021 Respectfully submitted,
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21 ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense
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MARY S. HOLLAND
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General Counsel, Children’s Health Defense
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ROGER I. TEICH
27
28 Counsel for Plaintiff
Children’s Health Defense
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Plaintiff’s Statement of Recent Decision
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 88 Filed 04/23/21 Page 3 of 20
EXHIBIT A
Case 3:20-cv-05787-SI Document 88 Filed 04/23/21 Page 4 of 20
FILED: WESTCHESTER COUNTY CLERK 03/18/2021 01:55 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 03/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PROJECT VERITAS,
Plaintiff,
Index No. 63921/2020
v.
(Wood, J.)
THE NEW YORK TIMES COMPANY, MAGGIE
ASTOR, TIFFANY HSU, and JOHN DOES 1-5, NOTICE OF ENTRY
Defendants.
PLEASE TAKE NOTICE that the within is a true copy of a Decision and Order of the
Supreme Court of the State of New York, County of Westchester (Wood, J.), in the above-
captioned action, dated March 18, 2021, and duly entered and filed on March 18, 2021.
DATED: Brooklyn, New York
March 18, 2021
ABRAMS, FENSTERMAN,
FENSTERMAN, EISMAN,
FORMATO, FERRARA, WOLF
& CARONE, LLP
/s/ Justin T. Kelton
Justin T. Kelton
1 MetroTech Center, Suite 1701
Brooklyn, NY 11201
Tel: (718) 215-5300
Fax: (718) 215-5304
Email: jkelton@abramslaw.com
Attorneys for Plaintiff
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133 RECEIVED NYSCEF: 03/18/2021
To commence the statutory time period for appeals as of right
(CPLR 5513[a]), you are advised to serve a copy of this order, with
notice of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
--------------------------------------------------------------------------x
PROJECT VERITAS,
Plaintiff,
-against- DECISION & ORDER
Index No. 63921/2020
THE NEW YORK TIMES COMPANY, MAGGIE ASTOR,
TIFFANY HSU, and JOHN DOES 1-5, Seqs. No. 1 & 6
Defendants.
--------------------------------------------------------------------------x
WOOD, J.
New York State Courts Electronic Filing (ANYSCEF@) document numbers 13-93, 115, 119,
were read in connection with the motion by Defendants, The New York Times Company (“NYT”),
and NYT reporters Maggie Astor and Tiffany Hsu, to dismiss plaintiff Project Veritas’ complaint,
pursuant to CPLR 3211(a)(1) (based upon documentary evidence), CPLR 3211(a)(7) (for failure
to state a cause of action), and CPLR 3211(g) (awarding mandatory attorneys’ fees and costs
pursuant to the “Anti-SLAPP Law”).
Plaintiff Project Veritas, a non-profit journalistic organization (“Veritas”), brought this
action against Defendants for publishing five purportedly false and defamatory articles in
September and October of 2020 (“the Articles”). The Articles reviewed a video report published
on September 27, 2020 by Veritas (“the Video”), on the topic of alleged illegal voting practices,
featuring a Somali-American Minneapolis campaign worker named Liban Mohamed. The Video
also featured an interview with Omar Jamal, a community service officer for the Ramsey County
Sherriff’s Office, and a political consultant in the Minneapolis Somali-American community.
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Jamal stated that there was widespread corruption by Somali-American politicians, who were all
part of an extended Somali-American “clan,” including cash payments to elderly voters in
exchange for their absentee ballots. Veritas claims that it did not selectively edit or doctor any of
the interviews presented in the Video.
The Articles include three written by defendant Astor, the first on September 29, 2020,
titled “Project Veritas Video Was a ‘Coordinated Disinformation Campaign,’ Researchers Say,”
which was published online by NYT (NYSCEF#5). On the same day, an abbreviated version titled
“Researchers Say a Project Veritas Video Accusing Ilhan Omar of Voter Fraud Was a
‘Coordinated Disinformation Campaign,” was published online by NYT (NYSCEF#6). The last
was on September 30, 2020, titled “Project Veritas Releases Misleading Video, Part of What
Experts Call a Coordinated Effort,” was published in print by NYT (NYSCEF#7).
Additionally, defendant Hsu wrote two articles about Veritas. The first, on October 25,
2020, titled “Conservative News Sites Fuel Voter Fraud Misinformation,” was published online
by NYT (NYSCEF#8). On October 26, 2020, a substantially similar version of the first Article,
titled “False Voter Fraud Stories Are Churning on Conservative News Sites,’” was published in
print by NYT (NYSCEF#9).
According to the complaint, NYT, Astor and Hsu were driven by resentment and
journalistic competitiveness after NYT’s “much-hyped story” about President Trump’s tax returns
was upstaged by Veritas’ video report, as well as by “their own political biases against Veritas’
perceived right-leanings,” so they set out to discredit Veritas’ reporting. Veritas asserts five counts
of defamation, alleging that Defendants published false and defamatory statements impugning
Veritas’ journalism with reckless disregard for the falsity of those statements.
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In the instant motion, Defendants argue that Veritas failed to adequately plead, and cannot
demonstrate with clear and convincing evidence that there is a substantial basis in law and fact that
Defendants acted with actual malice; Defendants’ reporting on the Video was substantially true
and corroborated by other media outlets and fact checkers; Veritas failed to allege a false or
defamatory statement of fact; and Veritas’s extensive reputation for publishing selectively edited
videos makes it “libel-proof”.
Now, based upon the foregoing, the motion is decided as follows.
Generally, CPLR 3211(a)(7) provides that Aupon a motion to dismiss [for failure to state a
cause of action], the sole criterion is whether the subject pleading states a cause of action, and if,
from the four corners of the complaint, factual allegations are discerned which, taken together,
manifest any cause of action cognizable at law, then the motion will fail. The court must afford
the pleading a liberal construction, accept the facts alleged in the pleading as true, accord the
plaintiff the benefit of every possible inference, and determine only whether the facts as alleged
fit within any cognizable legal theory@ (Esposito v Noto, 90 AD3d 825 [2d Dept 2011]; (Sokol v
Leader, 74 AD3d 1180 [2d Dept 2010]).
Here, Veritas’ complaint adequately pleaded the five causes of action sounding in
defamation. Defamation can sound in libel or slander. Libel involves publication, something in
writing or pictures, and slander involves statements, something spoken (Klein v McGauley, 29
AD2d 418, 421 [2d Dept 1968]). “The elements of a cause of action for defamation are (a) a false
statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace,
(b) published without privilege or authorization to a third party, (c) amounting to fault as judged
by, at a minimum, a negligence standard, and (d) either causing special harm or
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constituting defamation per se” (Udell v NYP Holdings, Inc., 169 AD3d 954, 955 [2d Dept 2019]).
In the context of deciding the issue of defamation on a motion to dismiss, the Second Department
has held that:
Truth is an absolute defense to a defamation action, and the test to determine
whether a statement is substantially true “is whether [the statement] as
published would have a different effect on the mind of the reader from that
which the pleaded truth would have produced” (As only statements alleging
facts can be the subject of a defamation action, “[a]n expression of pure
opinion is not actionable,...no matter how vituperative or unreasonable it may
be”. The question is not whether there is an isolated assertion of fact; rather,
it is necessary to consider the writing as a whole, including its tone and
apparent purpose, as well as the overall context of the publication, to
determine whether the reasonable reader would have believed that the
challenged statements were conveying facts about the plaintiff Thus, “[i]n
determining whether a complaint states a cause of action to recover damages
for defamation, the dispositive inquiry is whether a reasonable listener or
reader could have concluded that the statements were conveying facts about
the plaintiff” (Udell, 169 AD3d at 956 (internal citations omitted).
Defendants claim that a reasonable reader would understand that the primary gist of the
Articles was that the Video was deceptive because it failed, as the promotional materials for the
Video and the Video itself claimed, to show that Rep. Omar’s campaign was linked to the alleged
ballot harvesting scheme. The link between Rep. Omar’s campaign and the ballot fraud
purportedly depicted in the Video is what the Articles identify as relying on “unidentified sources”
and “with no verifiable evidence” and which led to the description of the Video as “deceptive”—
not all aspects of the Video. The gist of those statements is that the allegations about Rep. Omar’s
campaign’s connection to the ballot fraud are insufficiently supported—which is what numerous
“independent reputable news sources and fact checkers” concluded. The defendants also appear to
argue that “Tweets” or other marketing by Veritas and third parties to draw viewers to the Video
by Veritas somehow made the contents of the Video itself deceptive.
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In response, Veritas contends that NYT’s own ethical policies—which NYT publishes on
its website—prohibit news reporters from injecting their subjective opinions into news stories
published by NYT, and thus a reasonable reader would expect a news reporter’s statements to be
assertions of fact and not opinion. However, Defendants rely on a recent federal case where the
court rejected the argument that inclusion of an article “in the ‘News’ section rather than in the
‘Opinion’ section of NYT is dispositive of whether the statements contained in the article should
be considered fact or opinion (Brimelow v New York Times Co., No. 20 CIV. 222 (KPF), 2020
WL 7405261, at 5 [S.D.N.Y. Dec. 16, 2020]).
Whether a statement constitutes fact or opinion is a question of law for the court to decide,
considering the following three factors:
(i) whether the statement in issue has a precise, readily understood meaning; (ii)
whether the statement is capable of being proven true or false; and (iii) whether
either the full context of the communication in which the statement appears or the
broader social context and surrounding circumstances are such as to signal readers
that what is being read is likely to be opinion, not fact. (see Mann v Abel, 10 NY3d
271, 276 [2008])
This court’s review of the Articles involves considering the full text of the Article in which
the purportedly defamatory statements were made. Actionable assertions of fact are tightly
intertwined with what defendants now characterize as opinion. In part, Defendants argue that their
statements describing Veritas’ Video as “deceptive,” “false,” and “without evidence” were mere
opinion incapable of being judged true or false. However, if a writer interjects an opinion in a news
article (and will seek to claim legal protections as opinion) it stands to reason that the writer should
have an obligation to alert the reader, including a court that may need to determine whether it is
fact or opinion, that it is opinion. The Articles that are the subject of this action called the Video
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“deceptive”, but the dictionary definitions of “disinformation” and “deceptive” provided by
defendants’ counsel (NYSCEF doc 14 at footnote 29), certainly apply to Astor’s and Hsu’s failure
to note that they injected their opinions in news articles, as they now claim. Likewise, Defendants
now appear to assert that the promotion of the video was where the deception was (Astor affidavit
NYSCEF doc 85, at paragraphs 8-9; Hsu affidavit NYSCEF doc 86 at paragraphs 7-8;
Memorandum of Law NYSCEF doc 14, at pages 7-8, 11-12, 23, 28). But there is a difference
between viewing a disappointing “fight of the century” and reporting that it was not worth the Pay-
per-View fee or did not live up to the hype, and reporting to the public that Pay-per-View
knowingly marketed a fight that was fixed. Plaintiff is entitled to try to establish whether NYT’s
writers were purposely and/or recklessly inaccurate, or whether they were inaccurate, sloppy, or
something less.
For instance, in defendant Astor’s article dated September 29, 2020 (NYSCEF#5), she
spends the majority of the article merely describing the Video, and speaks to the conclusions of
researchers at Stanford University and the University of Washington, and others. There, Astor
obviously reports on the findings of these groups, and throughout the article they are properly
cited. However, the source of the following statement is unclear, or if it is fact or opinion that:
“Mr. O’Keefe and Project Veritas have a long history of releasing manipulated or selectively edited footage
purporting to show illegal conduct by Democrats and liberal groups” (NYSCEF #5).
In the second Astor article, also dated September 29, 2020, there are citations to
researchers, but this one statement is unclear whether its source is Astor, or if it is information told
to her by the researchers: “Project Veritas had hyped the video on social media for several days before
publishing it. In posts amplified by other prominent conservative accounts, Mr. O'Keefe teased what he
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said was evidence of voter fraud, and urged people to sign up at "ballotharvesting.com" to receive the
supposed evidence when it came out (None of the material in the video actually proved voter fraud)”
(NYSCEF#6).
The third Astor article on September 30, 2020, is repetition of the other two articles.
(NYSCEF#7).
Next, the subject articles written by Hsu on October 25, 2020 and October 26, 2020, contain
questionable language, where fact and opinion converge:
In a similar cycle, the Fox News host Sean Hannity and conservative
publications magnified the reach of a deceptive video released last month by
Project Veritas, a group run by the conservative activist James O’Keefe.
The video claimed without named sources or verifiable evidence that the
campaign for Representative Ilhan Omar, a Minnesota Democrat, was
collecting ballots illegally (NYSCEF#8 and #9).
Stating that the video is “deceptive” and stating “without verifiable evidence” in a factual
way in a news article certainly presents the statement as fact, not opinion. Further, the Astor and
Hsu Articles could be viewed as exposing Veritas to ridicule and harm to its reputation as a media
source because the reader may read these news Articles, expecting facts, not opinion, and conclude
that Veritas is a partisan zealot group, deceptively editing video, and presenting it as news.
Upon review of the total context and tone of the stories, which clearly disparage Veritas
and the Video, the court concludes that a reasonable reader could very well believe that the
challenged statements were conveying facts about Veritas. The Articles certainly could be viewed
as being purposely designed to appear that Defendants are imparting facts and evidence
that Veritas’ videos were deceptive and Veritas is merely a right-wing political group.
Alternatively, Defendants argue that even if the term “deceptive” could be given objective
meaning as a factual statement, Defendants demonstrated that the Video is deceptive, and the
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challenged statement is substantially true, as so many news outlets and fact-checkers
“independently determined.” The truth is an absolute defense. Attached to Defendants’ moving
papers are over 52 sources describing Veritas’ poor reputation for publishing deceptively edited
and misleading videos. According to Defendants, those sources are not just “some criticism from
mainstream and/or left-wing media, but rather, they come from a variety of reputable sources,
including Fox News, the Cato Institute, The Los Angeles Times, Newsweek, The Washington
Post, and The Blaze. Far from being “some criticism,” these sources resoundingly describe Project
Veritas as “partisan zealots,” with “a history of distorting facts or context,” “running cons,”
“misleadingly editing video,” and being “known for its deceptively-edited videos” (See, e.g.,
Kurtzberg Aff. Exs. 18, 28, 33, 47, 49 NYSCEF#15).
While this is a lengthy media list, polling does not decide truth nor speak to evidence, and
Defendants have not met their burden to prove that the reporting by Veritas in the Video is
deceptive. Defendants’ papers do not conclusively establish that the subject causes of action do
not exist, and the Court’s review of the complaint finds that Veritas adequately pleaded the five
causes of action set forth in the complaint. “Whether a plaintiff can ultimately establish its
allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman,
Sachs & Co., 5 NY3d 11, 19 [2005]).
Likewise, CPLR 3211(a)(1), also cited by Defendants, permits the use of “documentary
evidence” in support of a motion to dismiss defamation claims “where the documentary evidence
utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”
(Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002] [internal citation omitted]). Here, the
court finds that the documentary evidence submitted by Defendants fails to refute plaintiff’s factual
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allegations. Notably, Veritas documented in its complaint metadata and screen shots that
demonstrate the unlikelihood that Ms. Astor read and digested the EIP report/blog post, reviewed
news reports on Minnesota ballot issues, viewed the Video online, obtained comment from Alex
Stamos, wrote her own Article, submitted it to her editors, and had it posted online, all within 63
minutes (Complaint, at paragraphs 83-92, Astor Aff.).
Next, Defendants argue that Veritas is “libel proof”. This is a question of law for the Court
to decide (Stern v Cosby, 645 F.Supp.2d 258, 270 [S.D.N.Y. 2009]). The libel-proof plaintiff
doctrine bars relief in a defamation action, as a matter of law, to a plaintiff whose “reputation with
respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly
false statements on that subject” (Guccione v Hustler Mag., Inc., 800 F2d 298, 303 [2d Cir
1986] cert. denied, 479 U.S. 1091 [1987]). Defendants failed to demonstrate that Veritas is a
“classic libel-proof plaintiff”, whose reputation is so bad that it simply cannot be defamed. That
other media sources have criticized Veritas, or that Veritas may have suffered blows to its
reputation, without more, fails to meet the standard.
Accordingly, Defendants’ motion pursuant to 3211(a)(1) and (7), is denied.
Notwithstanding the foregoing, the analysis does not stop there. Defendants ask the court
to apply the recently amended anti-SLAPP law, comprised of various provisions of Civil Rights
Law §§ 70-a and 76-a, and CPLR 3211(g). The Strategic Lawsuit Against Public Participation
(“SLAPP”), laws were enacted originally to broaden the protections of citizens facing
litigation arising from their public petition and participation (Yeshiva Chofetz Chaim Radin, Inc.
v Vill. of New Hempstead by its Bd. of Trustees of Vill. of New Hempstead, 98 F. Supp. 2d 347,
359 [S.D.N.Y. 2000]). In fact, this version of the law existed on November 2, 2020 (the
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commencement date of this action) (Civ.Rights § 76-a). The purpose of the enactment of the
Anti-SLAPP law was to stop meritless, nuisance litigation, by well-funded developers against
average citizens who participated in public discourse against the developers or their projects (see
600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 137 [1993]).
Eight days after the commencement of this action, on November 10, 2020, the Anti-SLAPP
law was amended, and under CRL §76-a (eff. 1992), the definition of an “action involving public
petition and participation” was expanded to include:
(1) any communication [as pertinent here, any writing] in a place open to the public
or a public forum in connection with an issue of public interest; or
(2) any other lawful conduct in furtherance of the exercise of the constitutional right
of free speech in connection with an issue of public interest, or in furtherance of the
exercise of the constitutional right of petition. (CRL § 76-a).
The next provision of the Anti-SLAPP Law falls under CPLR 3211(g), which provides
that:
A motion to dismiss based on [§3211(a)(7)], in which the moving party has
demonstrated that the action, involves public petition and participation as defined in
Civil Rights Law, 76-a shall be granted, “unless the party responding to the motion
demonstrates that the cause of action has a substantial basis in law or is supported
by a substantial argument for an extension, modification or reversal of existing law.
The court shall grant preference in the hearing of such motion” (CPLR 3211(g)).
Civil Rights Law §70-a goes a step further, by creating an affirmative cause of action to
recover damages from plaintiff, including attorneys' fees, and other damages from plaintiff in
specified circumstances, if it can be shown that the applicant brought the action “without a
substantial basis in fact and law” (CRL §70-a).
These recent amendments by the Legislature have turned the original purpose of the Anti-
SLAPP law upside down. Here, one of the largest newspapers in the world since Abraham
Lincoln was engaged in the private practice of law, is claiming protections from an upstart
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competitor armed with a cell phone and a web site. Not only does the amended Anti-SLAPP law
grant protection to a Goliath against a David, but 16 years after the SLAPP law was enacted, a
newspaper had never qualified for SLAPP protection for its written articles (see Cholowsky v
Civiletti, 116 Misc3d 1138 [Sup. Ct, Suffolk Cty 2007]; aff’d 69 AD3d 110 [2d Dept 2009]).
Despite this dizzying turnabout created by the Legislature, the court agrees that this action meets
the amended Anti-SLAPP standard, as it arises from NYT’s reporting on an issue of public interest:
allegations of systemic voter fraud and potential disinformation about such voter fraud.
Accordingly, since under CPLR 3211(g) defendants have moved to dismiss the action
under CPLR 3211(a)(7), and demonstrated that this action entitles them to additional protections,
CPLR 3211(g) shifts the standard burden for a motion to dismiss from Defendants to Veritas to
“demonstrate that the cause of action has a substantial basis in fact and law.” In opposition,
Veritas argues that Civil Rights Law §76-a should not be given retroactive effect here, in that the
text of the November 10, 2020 Act amending CRL §§ 70-a and 76-a, along with CPLR 3211(g),
nowhere states that the amendments shall apply retroactively, but states only that the act “shall
take effect immediately.”
Retroactive operation is not favored by courts and “statutes will not be given such
construction unless the language expressly or by necessary implication requires it” (Majewski v
Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 584 [1998]). However, “remedial legislation
should be given retroactive effect in order to effectuate its beneficial purpose” (In re Gleason
(Michael Vee, Ltd.), 96 NY2d 117, 122 [2001]). Other factors pertinent here to consider whether
the Amendment conveyed a sense of urgency; and whether the enactment itself reaffirms
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a legislative judgment about what the law in question should be (Nelson v HSBC Bank USA, 87
AD3d 995, 998 [2d Dept 2011]).
To date, three federal courts have ruled that the amended Anti-SLAPP Law should be given
retroactive effect. In one case where NYT was a defendant, the Southern District ruled that “it is
clear that §76-a is a remedial statute that should be given retroactive effect. The Legislature
conveyed a sense of urgency by directing that the amendment was to take effect immediately”
(Palin v New York Times Co., No. 17-CV-4853 (JSR), 2020 WL 7711593 [S.D.N.Y. Dec. 29,
2020]). Likewise, the Eastern District found the anti-SLAPP amendments are
remedial, retroactive legislation:
The memorandum accompanying the bill's introduction states that “as drafted, and
as narrowly interpreted by the courts, the application of Section 76-a has failed to
accomplish [its] objective.” S52A Sponsor Mem. (July 22, 2020),
https://www.nysenate.gov/legislation/bills/2019/s52. The memorandum expresses
the specific intent that the proposed amendments will “better advance the purposes
that the Legislature originally identified in enacting New York's anti-SLAPP law”:
to protect the free exercise of speech, particularly in public fora on matters of public
interest. Id. The bill became effective “immediately.” Id. Under New York law,
these clear legislative expressions of remedial purpose and urgency give the
amendments retroactive effect. See Palin, 2020 WL 7711593, at 5
(quoting Gleason, 96 N.Y.2d at 123 (These factors together persuade [the Court]
that the remedial purpose of the amendment should be effectuated
through retroactive application) (Steven Douglas Coleman, Plaintiff, v Maria Kim
Grand, Defendant., No. 18CV5663ENVRLM, 2021 WL 768167, at 8 (E.D.N.Y.
Feb. 26, 2021).
While the federal decisions are not binding on this court, here Veritas has not sufficiently
raised any harsh impact that would preclude the applicability of the Anti-SLAPP statute, and thus,
the court will apply the Anti-SLAPP statute retroactively.
Eventually, to prevail at trial, Veritas will have a high burden, to show actual malice by
clear and convincing evidence. “The burden of proving ‘actual malice’ requires the plaintiff to
demonstrate with clear and convincing evidence that the defendant realized that his statement was
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false or that he subjectively entertained serious doubt as to the truth of his statement "(Prozeralik
v Capital Cities CerrrrE=±ions. Inc., 82 NY2d 466, 474 [1993]). Actual malice is a high bar and
mere allegations about improper political or personal biases do not establish actual malice without
additional facts to suggest the speaker acted pursuant to that bias (McDougal v Fox News
Network, LLC, No. 1:19-CV-11161 (MKV), 2020 WL 5731954 [S.D.N.Y. Sept. 24, 2020]).
Veritas argues that not only does the complaint allege that Defcadañts had knowledge of
the falsity of their defamatory statements at the time of publication, but it pleads detailed facts
"hallmark" law-
showing the presence of literally every of actual malice recognized by the
iñcludiñg setting out with a precoñccived narrative, being motivated by ill will and bias, failing to
contact obvious sources of information; relying on biased and non-credible sources, violating
j0amalistic crandards, and refusing to retract. Veritas alleges that it has far excccded that standard
by pleadiñg overwhelming circumstantial evidence of actual malice, including that:
• Astor and Hsu knew their claims about the video report were false because they had themselves
reviev ed the video report (Compl. W 97-98, Veritas alleges that Defendants knew that Omar Jamal-the
source"
man they now acknowledge was the "primary named for the video report (Mem. at 25)-has long
been conciagred a credible, on-the-record source by The Times itself. (Compl. M 113-122)
• Defendants were motivated by bias and ill will because they believed that the video report was
upstaging their story about President Trump's tax returns and because Defcñdañts all disagree politically
Veritas'
with what they perceive to be rightward leanings (Id. M 72-76, 156).
• Hsu's later October stories were motivated
2020 by vindictiveness and a desire to harm Veritas
for demanding a correction of Astor's stories (Id. M 148-154).
• The Times and its reporters set out with a pree-ceived storyline that the video report was
manipulated and deceptive, and that they ignored any evidence that conhdicted that prejudged ñarrative
(Id. W 75-76, 90, 202, 292).
• Both Astor and Hsu failed to conduct a reasonable investigation and failed to reach
inte=Eenally
out to obvious sources they knew would cen+cad.ict the claims they planned to publish-including Veritas
and the named sources in the video report (Id. M 123-125, 157).
•
By intentionally declining to seek e--+ from Veritas prepublicati0ñ, both Astor and Hsu
blatantly violated NYT's own published peEcies and ethical guidelines requiring reporters to seek ccñññcat
from story subjects (Id. M 125, 157).
• While DeF=?rr±a attempt to argue that Astor did not act with actual malice because she relied on
Partnership,"
a blog post by a group called the "Election Integrity Veritas has alleged-and dernanstrated
through website metada+a-that both the blog post and Astor's story were a joint and cGGr£n±a effort
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between EIP and The Times to smear Veritas (Id. ¶¶ 77-92).
• Veritas further alleges that Astor knew the EIP blog post anth- were as one of
heavily biased,
the principal authors had
previously been the subject of a Veritas story exposing wrongdoing on his part
while employed by Facebook (Id. ¶ 91).
Defcedants claim that Veritas fails to consider the six stories that preceded the Astor
Articles and attâeked the Video as deceptive and as providiñg insufficient support for its claims
"connecting"
Rep. Omar's campaign to the alleged pervasive ballot fraud scheme- It also fails to
account for the fact that only two of the eight articles published aner the Astor Articles make any
reference to the them. Defr=d==ts argue that 14 sources concurred that the Video was deceptive
and made unsupported claims purporting to link Coñgrcsswoman Omar's campaigñ to an illegal
Veritas'
ballot fraud scheme, and numerous sources recounted widespread reputation for deceptive
editing, giving Defeñdsets every reason to believe that the Video was deceptive. The court can
take judicial notice of those sources - not for the truth of the matter asserted in their sta±cmcats
truth."
but to determine that NYT did not act with "reckless disregard of the
Defendants also point out that aner the Video was released, they submitted reports of
allegedly indepedet fact-checkers, news organizations, and reputable academics (from
Defendants' "mishading," "unfoüñded,"
point of view) as being, among other things, part of a
ca-ñpaigñ,"
"disinformation and "false"; and that within days of the Video released, Omar
being
"backtracked"
Jamal, a key source for the Video, went on Somali American TV and reportedly on
the cash-for-ballots allegations. Another man featured in the Video, Liban Osman, told
investigators at Fox News that he was offered a $10,000 bribe by Omar Jamal - to be paid by
Project Veritas - to say (falsely) that he was collecting ballots for Rep. Omar.
Turning to the submissions of the parties, the court first must disagree with Defendants that
the clear and convincing standard applies to this motion. CPLR 3211(g) does not impose a "clear
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and convincing” standard. The party opposing the motion must demonstrate that the cause of
action “has a substantial basis in law” (CPLR 3211[g]); International Shoppes, Inc. v At the
Airport, LLC, 131 AD3d 926, 929 (2d Dept 2015). Notably, CPLR 3211(h) contains the same “has
substantial basis in law” language as CPLR 3211(g). In deciding a recent CPLR 3211(h) motion,
the Second Department held that this standard was below the standard for summary judgment, and
that “the plaintiff must adduce allegations and evidence that demonstrate the existence of triable
issues of fact” (Golby v N&P Engrs. & Land Surveyor, PLLC. 185 AD3d 792,794 [2d Dept 2020]).
The court finds that the documentary proof and the facts alleged by Veritas are sufficient to meet
its burden. The facts submitted by Veritas could indicate more than standard, garden variety
media bias and support a plausible inference of actual malice. There is a substantial basis in law
to proceed to permit the plaintiff to conduct discovery and to then attempt to meet its higher
standard of proving liability through clear and convincing evidence of actual malice. Malice
focuses on the defendant's state of mind in relation to the truth or falsity of the published
information. Here there is a substantial basis in law and fact that Defendants acted with actual
malice, that is, with knowledge that the statements in the Articles were false or made with reckless
disregard of whether they were false or not. Veritas alleged actual malice by providing facts
sufficient to demonstrate Defendants’ alleged disregard for the truthfulness of its statements.
Accordingly, at this very early stage of the litigation, Veritas’ submissions were sufficient to
withstand defendants’ motions, and further proceedings are necessary to resolve the issues raised.
In light of the court’s rulings herein, plaintiff Veritas’ motion (Seq. 6) for limited discovery
in relation to the present motion (seq. 1) is deemed academic and moot.
Accordingly, based upon the stated reasons, it is hereby
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ORDERED, that the motion by Defendants for an order pursuant to CPLR 3211(a)(1),
(7), and CPLR 3211(g) dismissing the complaint and an award of attorney's fees on the defendant's
counterclaim, is denied; their application for relief under New York's Anti–SLAPP statute is also
denied; and it is further
ORDERED, that any future submissions by counsel shall adhere to the Uniform Court Rule
202.8-b; and it is further
ORDERED, that the parties shall appear at the Compliance Part, at a date, time, place, and
manner as so designated by that Part.
This constitutes the Decision and Order of the Court.
Charles D. Wood
Dated: March 18, 2021 I am the author of this
White Plains, New York document
2021.03.18 11:28:
41-04'00'
10.1.0
HON. CHARLES D. WOOD
Justice of the Supreme Court
To: All Parties by NYSCEF
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