CHENG v. NEUMANN

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

DANA CHENG and )

EPOCH GROUP, INC., )

)

Plaintiffs, )

)

v. ) No. 2:21-cv-00181-LEW

)

DAN NEUMANN and )

MAINE PEOPLE’S ALLIANCE, )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTION TO DISMISS

Plaintiffs Dana Cheng and the Epoch Group seek to hold liable Defendants Maine

People’s Alliance and Dan Neumann, a journalist for the Beacon, based on statements

found in the Beacon’s June 16, 2021 article, “Maine GOP hosts speaker present at Jan. 6

Capitol assault.” The matter is before the court on Defendants’ motion to dismiss Plaintiffs’

complaint for failure to assert something other than a “strategic lawsuit against public

participation,” sometimes referred to as a “SLAPP suit.” Defendants’ Motion to Dismiss

(ECF No. 12). For reasons that follow, I grant Defendants’ motion.

BACKGROUND

Plaintiff Epoch Group, Inc. (“Epoch Group”) is a New York corporation that

publishes the online newspaper the Epoch Times. Plaintiff Dana Cheng is a New York

resident. She is also an officer of Epoch Group and a founder of the Epoch Times.

Defendant Maine People’s Alliance is a Maine corporation and publishes the online media

outlet the Beacon. Defendant Dan Neumann is a Maine resident who writes for the Beacon.

On June 16, 2021, the Beacon published an article written by Neumann and titled

“Maine GOP hosts speaker present at Jan. 6 Capitol Assault” (the “Article”). The Article

described how the Maine Republican Party, Gray Republican Town Committee, and

Christian Civic League hosted an event in Maine that featured a livestream address by

Cheng. The Article featured Cheng’s image at the top of the page and identified Cheng in

the opening paragraph as “a far-right media personality and conspiracy theorist who has

said she was among the supporters of former President Donald Trump who were present at

the riot at the U.S. Capitol on Jan. 6.” The Article identified the Epoch Times as a “right-

wing multi-language newspaper and media company.”

In support of these opprobrious epithets the Article went on to quote or paraphrase

some of Cheng’s remarks made during her livestream with the Grey Republicans and

during a recent radio interview aired on Denver radio station KLZ 560 AM and presently

available by podcast at the Kim Monson Show. Concerning the latter, the Article reported

that Cheng stated that the January 6 violence was perpetrated by the “antifa movement”

rather than by supporters of President Donald Trump.

Concerning the Epoch Times, Defendants described its media content as including

articles questioning the results of the 2020 election, promoting anti-vaccine

misinformation, and promoting the QAnon conspiracy theory. Defendants reported that the

New York Times has described the Epoch Times a “global-scale misinformation machine.”

They also characterized and quoted some of Cheng’s remarks to the Grey Republicans.

Defendants first characterized Cheng’s remarks as “reminiscent of the Red Scare” because

Cheng alleges that communist plotters influence “the highest ranks of U.S. government,

academia and media.” Defendants then quoted Cheng’s remark that “some New York Times

reporters used to work for Chinese Communist Party media,” and that “mainstream media”

is “greatly influenced by communist propaganda.”

Defendants also reported that the Epoch Times “is partially funded by far-right

media financier Robert Mercer.” However, after publication, the Beacon issued a

correction stating that one of Mercer’s employees, not Mercer himself, had contributed to

the Epoch Times.

DISCUSSION

Cheng and Epoch Group allege defamation, while Cheng further alleges false light

invasion of privacy and both negligent and intentional infliction of emotional distress.

Cheng alleges that the Article’s characterizations of her as a “far-right media personality”

and “conspiracy theorist” present “at the riot at the U.S. Capitol” were false and

defamatory, and that the Article falsely characterized statements Cheng made during her

radio-podcast appearance with Kim Monson. Compl. ¶¶ 16–17 (ECF No. 1). Cheng further

alleges that the Article’s statements and its identification of Cheng both in name and in

image have exposed Cheng to a risk of violence and have caused her reasonably to fear for

her safety. Id. ¶¶ 33–35. For its part, Epoch Group1 alleges that the Article’s

characterization of the Epoch Times as a “far-right” newspaper that was funded by Robert

1 In the complaint, Plaintiffs say the Article’s affronts toward the Epoch Times were felt especially by

Cheng. Compl. ¶ 28 (“The Article then goes on to falsely characterize the newspaper that Cheng co-founded

Mercer and promoted misinformation about vaccines, QAnon, and the 2020 election was

false and defamatory. Id. ¶ 28.

Through their Motion to Dismiss, Defendants argue that they are entitled to an order

dismissing the case because the Article’s contents are true or matters of opinion and,

therefore, are protected under the First Amendment, and that this action is a “SLAPP” suit

that must be dismissed under either New York or Maine anti-SLAPP laws. Defendants also

argue that Dana Cheng’s other claims for relief are not recognized under New York law.

My discussion begins with choice-of-law concerns.

A. Choice of Law

Before addressing the merits of Defendants’ motion, I must determine what body of

law governs. This is a two-step inquiry, under which I first evaluate whether federal law or

state law supplies the appropriate rule of decision. In re Volkswagen & Audi Warranty

Extension Litig., 692 F.3d 4, 14 (1st Cir. 2012). If the matter is to be determined by state

law, I must then decide which state’s law to apply. Id.

By way of background, the Federal Rules of Civil Procedure allow a defendant to

file a motion to dismiss all or part of a complaint for failure to state a claim for which relief

may be granted. Fed. R. Civ. P. 12(b)(6). In a proceeding on such a motion, a court limits

its review to the facts found within the four corners of the complaint, any facts found in

documents attached to the complaint or essential to the complaint’s allegations, and other

materials if they are susceptible to judicial notice. Zenon v. Guzman, 924 F.3d 611, 615-16

(1st Cir. 2019). Under the federal rules, the dismissal of a complaint based on a legal

defense to the claims asserted in the complaint (for example, Defendants’ First Amendment

defense) is only appropriate if a review of the complaint, the attached materials, and

noticeable extraneous materials makes it clear beyond doubt that the asserted claims

succumb to the defense. Id. at 616. However, both Maine and New York have enacted laws

designed to provide enhanced protection for the exercise of First Amendment rights against

the chilling effects of litigation based on state tort law. This enhanced protection takes the

form of a motion to dismiss in which the record and the party’s respective burdens are

augmented to allow the court to determine, at the inception of the litigation, whether a

given tort claim is designed to chill the defendant’s exercise of free speech rights.

Maine’s anti-SLAPP law authorizes a defendant sued for exercising his “right of

petition” to bring a “special motion to dismiss,” which motion “shall” be granted unless

the non-moving party can show that the case has an adequate basis in law. 14 M.R.S. §

556. Maine law instructs a court to “consider the pleading and supporting and opposing

affidavits stating the facts upon which the liability or defense is based.” Id. The law further

deters speech-chilling litigation by enabling a defendant who prevails on a special motion

to dismiss to recover litigation costs and attorney’s fees from the plaintiff. Id. New York’s

anti-SLAPP law is spread across three different statutes and creates similar protections for

First Amendment activities. See N.Y. Civ. Rights Law § 76-a (McKinney) (forbidding

interference with right to public participation); N.Y. C.P.L.R. 3211(g) (McKinney)

(establishing pleading standard, allocation of burdens, and procedures for motions to

dismiss and for summary judgment in SLAPP cases); N.Y. Civ. Rights Law § 70-a

(McKinney) (SLAPP defendants may recover attorney’s fees). Like Maine law, New York

law calls upon a court to conduct a more searching review of the merits at the motion to

dismiss stage.

1. Federal or state law

Under the rule of Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938), a federal

court sitting in diversity looks to state law on substantive issues and federal law on

procedural issues. Godin v. Schencks, 629 F.3d 79, 85 (1st Cir. 2010). When a state law

governing procedure conflicts with a federal rule, the federal rule generally must obtain in

federal court. Id. at 86. However, the line between substance and procedure proves much

cleaner in theory than in practice, and courts generally have adopted an analysis that looks

more functionalist than formalist. In the First Circuit, an ostensibly procedural state rule

will obtain in federal court where, for example, no federal procedural rule addresses the

same subject, id. at 88, or where the state rule is “so intertwined with a state right or remedy

that it functions to define the scope of the state-created right,” id. at 87 (quoting Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 423 (2010) (Stevens, J.,

concurring)).

Defendants have moved to dismiss both for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6) and for interference with the right to public participation

under the New York or Maine anti-SLAPP laws. The former challenge presents no Erie

issue: Rule 12(b)(6) supplies plainly federal procedural rules, and state law governs the

substantive aspects of Plaintiffs’ claims and Defendants’ motion. The latter, however, asks

this court to address a special type of motion created under state law. Consequently, I must

determine whether such motions to dismiss, “though procedural in form, serve[] the

function of defining” the scope of any right guaranteed by the respective state. Shady

Grove, 559 U.S. at 432 (Stevens, J., concurring).

To the extent that Defendants raise a special motion to dismiss under Maine’s anti-

SLAPP law, see 14 M.R.S. § 556, Erie does not bar them from doing so. The First Circuit

has held that Maine’s anti-SLAPP law is substantive for Erie purposes, and so applies in

federal court. See Godin, 629 F.3d at 91. The court noted, first, that the anti-SLAPP law

“serve[d] the entirely distinct function of protecting those specific defendants that have

been targeted with litigation on the basis of their protected speech,” a function the federal

dismissal and summary judgment procedures do not serve. Id. at 89. Thus, Maine law

complements, rather than conflicts with, the dismissal and summary judgment procedures

in the Federal Rules of Civil Procedure. Id. at 86. The court further determined that, unlike

the relevant Federal Rules of Civil Procedure, the anti-SLAPP law had “both substantive

and procedural aspects.” Id. at 89. Among the elements of the law that the court recognized

as substantive are the law’s “allocation of the burden of proof” to the non-movant on

special motions, the pleading standard for surviving such motions, and the fact that the law

ultimately “alters what plaintiffs must prove to prevail.” Id. The most obviously procedural

aspect of the law is that it expands “the record on which the motion is evaluated” as

compared to a motion to dismiss under Rule 12(b)(6). Id. at 90. But because the procedural

elements of the anti-SLAPP law were “intertwined with” the right or remedy created by

the law; the court treated the entire law as substantive. Id. at 89 (quoting Shady Grove, 559

U.S. at 432 (Stevens, J., concurring)). Finally, the court noted that refusing to apply

Maine’s anti-SLAPP law in federal court would deprive federal court defendants of the

protections of a higher substantive standard and spare federal court plaintiffs the threat of

paying a defendant’s attorney’s fees, thereby leading to the unequal administration of

justice and incentivizing plaintiffs to choose federal over state court. Id. at 93.

To the extent that Defendants move to dismiss under New York’s anti-SLAPP law,

Godin also makes clear that, for purposes of litigation filed in the district courts within the

First Circuit, New York’s law is substantive and therefore applicable in federal court.2

New York’s scattered anti-SLAPP statutes, like Maine’s more concise anti-SLAPP statute,

contain both substantive and procedural elements. Among the statutes’ substantive aspects

are provisions establishing the standard that a defamation plaintiff must prove, see N.Y.

Civ. Rights Law § 76-a(2), and allocating the burden of proof to the non-movant on anti-

SLAPP motions and defining the pleading standard for surviving such motions, see N.Y.

C.P.L.R. 3211(g)(1). See also Godin, 629 F.3d at 85 n.3, 89 (recognizing these rights as

substantive). And, as with the Maine anti-SLAPP law, the substantive and procedural

provisions of the New York anti-SLAPP law are intertwined such that the vindication of

the former depends upon the availability of the latter. Like the Maine anti-SLAPP statute,

these New York statutes cohere to ensure the speedy disposition of cases involving

constitutionally protected public participation, thus are substantive for Erie purposes.

2 Federal district courts sitting in New York have disagreed as to whether New York’s anti-SLAPP laws

apply in federal court. Compare Palin v. New York Times Co., 510 F. Supp. 3d 21, 27 (S.D.N.Y. 2020)

(applying anti-SLAPP standard for liability) with Nat’l Acad. of Television Arts & Scis., Inc. v. Multimedia

Sys. Design, Inc., No. 20-CV-7269-VEC, 2021 WL 3271829, at *13 (S.D.N.Y. July 30, 2021) (declining,

under Erie doctrine, to apply anti-SLAPP law). See also Ctr. for Med. Progress v. Planned Parenthood

Fed’n of Am., No. 20-CV-7670-CM, 2021 WL 3173804, at *10 (S.D.N.Y. July 27, 2021) (treating

applicability of anti-SLAPP law in federal court as an open question). But I need not tarry on such

disagreement among out-of-circuit authorities where, as here, First Circuit precedent squarely resolves the

issue.

Accordingly, Defendants may move to dismiss based on state anti-SLAPP law, and

I must rule on Defendants’ motion as a state court would.

2. Maine or New York law

The parties disagree over whether this case should be resolved under Maine law or

New York law. Before I choose, I consider “whether an actual conflict exists between the

substantive laws of the interested jurisdictions.” Reicher v. Berkshire Life Ins. Co. of Am.,

360 F.3d 1, 4 (1st Cir. 2004). If “the resolution of a choice-of-law determination would not

alter the disposition of a legal question, a reviewing court need not decide which body of

law controls.” Okmyansky v. Herbalife Int’l of Am., Inc., 415 F.3d 154, 158 (1st Cir. 2005).

Here, neither party suggests that Maine law and New York law are materially different

with respect to the elements of Plaintiffs’ tort claims; instead, Plaintiffs argue that Maine

law and New York law conflict insofar as Defendants may properly raise an anti-SLAPP

defense under the latter but may not do so under the former.

Though the Maine and New York anti-SLAPP laws are largely similar in their

substantive and procedural aspects, the laws may differ in scope. New York law protects

“public petition and participation.” N.Y. C.P.L.R. 3211(g), which extends to newspapers

and other media publications. See, e.g.,, Reus v. ETC Hous. Corp., 148 N.Y.S.3d 663, 669

(Sup. Ct. 2021) (granting anti-SLAPP defense by newspaper). Thus, the Article, and by

extension this case, certainly fall within the scope of New York’s anti-SLAPP law.

Whether Maine’s anti-SLAPP law applies is a thornier question. Maine law protects the

“right of petition.” 14 M.R.S. § 556. The Law Court has held that this protection is

applicable to newspaper articles if “those articles constitute the newspaper petitioning on

its own behalf,” Gaudette v. Mainely Media, LLC, 2017 ME 87, ¶ 17, 160 A.3d 539, 543,

but has expressly declined to delineate “when news reporting or editorializing might

constitute petitioning activity,” id. ¶ 18 n.3. Because Gaudette leaves open the possibility

that New York law is more protective of Defendants than Maine law, I will assume that

there is a conflict requiring me to choose between New York and Maine law.

A federal court exercising diversity jurisdiction applies the choice-of-law rules of

the state in which it sits. Foisie v. Worcester Polytechnic Inst., 967 F.3d 27, 41 (1st Cir.

2020). Maine follows the approach of the Second Restatement of Conflict of Laws, under

which a tort action generally will be decided under “the local law of the state where the

injury occurred . . . unless, with respect to the particular issue, some other state has a more

significant relationship . . . to the occurrence and the parties.” State Farm Mut. Auto. Ins.

Co. v. Koshy, 2010 ME 44, ¶ 22, 995 A.2d 651 (quoting Restatement (Second) Conflict of

Laws § 146).

The Second Restatement recognizes special choice of law principles for “multistate

defamation” and “multistate invasion of privacy,” or cases in which the allegedly tortious

content is distributed via “aggregate communication” available in multiple states.

Restatement (Second) Conflict of Laws §§ 150(a), 153 (“Restatement”). Here, the

allegedly defamatory or invasive material was published on the internet. Sections 150 and

153 provide that such cases will be determined under the law of the state with “the most

significant relationship to the occurrence and the parties under” the Restatement’s general

choice-of-law principles. Id. § 150(a) (citing § 6); accord § 153. They further establish a

presumption that the governing law will “usually” be the law of “the state where the

[alleged victim] was domiciled”—or, in the case of corporate victims, where the

corporation had its “principle place of business”—so long as “the matter complained of

was published in that state.” Id. § 150(b)–(c); accord § 153.

Under Restatement sections 150 and 153, New York law applies to this dispute.

Because the allegedly defamatory or invasive material was published on the internet, the

choice of law provisions for multistate torts apply. See Fuqua Homes, Inc. v. Beattie, 388

F.3d 618, 622 (8th Cir. 2004) (section 150 applied to allegedly defamatory online

publication). Cheng is, and at all relevant times has been, domiciled in New York; likewise,

Epoch Group maintains its principle place of business in New York. The Article also was

published in New York, insofar as it was posted to the internet and so effectively published

“in” every state. See, e.g., Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343, 354 (D. Mass.

2017) (finding that “website, which [was] accessible by anyone anywhere with an Internet

connection, was published in Massachusetts”); Mzamane v. Winfrey, 693 F. Supp. 2d 442,

471 (E.D. Pa. 2010) (allegedly defamatory statements “were available on the internet, and

therefore, were published throughout the United States, including Pennsylvania”). Where

allegedly defamatory material is disseminated via the internet, “the most important

consideration in choosing the applicable law is the residence of the party allegedly

defamed.” Aoki v. Benihana, Inc., 839 F. Supp. 2d 759, 765 (D. Del. 2012). In this case,

that state is New York.

Even looking past this presumption, New York has the greatest interest in Plaintiffs’

case under the Restatement’s general choice-of-law principles. See Restatement § 150(a)

(citing § 6). Among the most salient factors to be considered are “the relevant policies of

the forum, [and] the relevant policies of other interested states and the relative interests of

those states in the determination of the particular issue.” Koshy, 2010 ME 44, ¶ 47, 995

A.2d 651 (quoting § 6). Here, New York has a strong interest in protecting its citizens from

defamation, invasion of privacy, infliction of emotional distress, and other torts, regardless

of where the tortfeasor’s activity took place. At the same time, New York’s anti-SLAPP

law manifests an interest in ensuring the free flow of information and “provid[ing] the

utmost protection for the free exercise or speech, petition, and association[al] rights” from

vexatious litigation. Palin v. New York Times Co., 510 F. Supp. 3d 21, 27 (S.D.N.Y. 2020)

(quotation omitted). Maine also has enacted an anti-SLAPP law to further its interest in

protecting citizens from “meritless lawsuits brought with the intention of chilling or

deterring the free exercise of the defendant’s First Amendment right.” Schelling v. Lindell,

2008 ME 59, ¶ 6, 942 A.2d 1226. Of these underlying policy concerns, it is New York’s

interest in protecting its citizens from reputational, emotional, and potentially physical

harms that is the weightiest. Cheng states that the allegedly defamatory statements have

put her in fear for her physical safety, the safeguarding of which is the paramount duty of

the sovereign. For this reason, “the majority of courts confronted with this choice of law

question have found that the plaintiff’s domicile should control.” Mzamane, 693 F. Supp.

2d at 471.

For the same reasons, Cheng’s claims for negligent and intentional infliction of

emotional distress are also governed by New York law. In cases for personal injury, Maine

courts apply the “law of the state where the injury occurred” unless “some other state has

a more significant relationship . . . to the occurrence and the parties. Koshy, 2010 ME 44,

¶ 22, 995 A.2d 651 (quoting Restatement § 146). Even where the allegedly tortious conduct

and the injury occur in different states, “the local law of the state of injury will usually be

applied” so as not to undermine that state’s interest in enforcing its laws and protecting its

citizens. Restatement § 146, cmt. e. Here, Cheng’s emotional distress occurs principally in

New York, where she resides, which is also the state with the strongest interest in this suit.

Accordingly, I look to New York law to adjudicate Cheng’s claims.

B. Application of New York Law

1. Invasion of privacy and infliction of emotional distress

Defendants argue New York law does not recognize claims for false light invasion

of privacy and does not permit independent emotional distress claims based on libel or

slander scenarios. Mot. 43-44. Defendants are correct. Plaintiff cannot state a claim for

false light invasion of privacy, because New York does not recognize such a cause of

action. See Howell v. New York Post Co., 612 N.E.2d 699, 703 (N.Y. 1993). Nor does

Plaintiff state a claim for negligent or intentional infliction of emotional distress, because

allegedly “defamatory statements generally cannot” support emotional distress claims

under New York law. Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705,

729 (S.D.N.Y. 2014). The making of false statements is “not sufficiently outrageous to

state a cause of action” for infliction of emotional distress. La Duke v. Lyons, 250 A.D.2d

969, 973, 673 N.Y.S.2d 240, 244 (1998). Furthermore, “a cause of action alleging . . .

infliction of emotional distress should be dismissed ‘where the conduct complained of falls

well within the ambit of other traditional tort liability,’” including alleged conduct that

“falls squarely within the scope of [a] defamation claim.” Demas v. Levitsky, 291 A.D.2d

653, 660, 738 N.Y.S.2d 402, 409 (2002) (quoting Fischer v. Maloney, 373 N.E.2d 1215,

1217 (N.Y. 1978)).

Plaintiffs’ claims for relief all arise out of a defamation-based factual scenario.

Therefore, it is appropriate to dismiss them for this reason alone, separate, and apart from

the application of New York’s anti-SLAPP defamation law, to which I turn now.

2. New York anti-SLAPP law

New York’s anti-SLAPP law is “construed broadly,” such that “any communication

in a . . . public forum” regarding the public interest, including “any subject other than a

purely private matter,” N.Y. Civ. Rights Law § 76-a, is presumptively protected from suit.

Under this statutory3 scheme, “an action involving public petition and participation” will

be dismissed unless the plaintiff demonstrates by clear and convincing evidence that the

cause of action has a substantial (i.e., more than reasonable) basis in law, Sackler v. Am.

Broad. Cos., Inc., 144 N.Y.S.3d 529, 534 (Sup. Ct. 2021), or “is supported by a substantial

argument for an extension, modification or reversal of existing law.” N.Y. C.P.L.R.

3211(g)(1).

The Beacon is a public forum for the purpose of New York’s anti-SLAPP law,

which state and federal courts alike have held extends to statements published in

newspapers. See Palin, 510 F. Supp. 3d at 29; Reus, 148 N.Y.S.3d at 669. Additionally,

the topics discussed in the Article—Cheng’s presence at the Capitol riot and both Plaintiffs’

3 Much of what is said hereafter concerning New York free speech law might also be said concerning the

First Amendment of the United States Constitution. While the Supreme Court’s free speech precedent

provide context for the development of the New York law discussed hereafter, those cases do not drive state

law, speech-protective proceedings that effectively curtail the reach of state tort law.

history of advocating purportedly right-wing and conspiratorial ideas—are matters of

public interest. The Capitol riot was an important national event, and Cheng’s decision to

speak to a political gathering after having attended the riot made her attendance a part of

the public discourse. Indeed, Cheng’s attendance at the riot ceased to be a “purely private”

matter, if it ever was private in the first place, when she chose to speak publicly about it

during a guest appearance on a broadcast. See Compl. Ex. B (ECF No. 1-2).

Because the New York anti-SLAPP law applies here rather than the standard Rule

12(b)(6) framework set out in the Federal Rules of Civil Procedure, I may look beyond the

pleadings to consider “supporting and opposing affidavits stating the facts upon which the

action or defense is based” when adjudicating this motion. N.Y. C.P.L.R. 3211. Thus, I

will consider not only Plaintiffs’ Complaint and exhibits attached thereto, but also the

Epoch Times articles identified in and attached to Defendant Neumann’s affidavit. See

Neumann Decl. ¶¶ 26–33 (ECF No. 12-1); Def’s Mot. Ex. 2 (ECF No. 12-2). Although

looking beyond the four corners of Plaintiffs’ pleadings ordinarily would call for the

conversion of this motion to dismiss into a motion for summary judgment, see Fed. R. Civ.

P. 12(d), Erie demands that I honor this procedural component of New York’s statutory

scheme. See supra Section A.1. In any event, the articles in question would be subject to

my consideration even under federal procedures. A court ruling on a motion to dismiss

under Rule 12(b)(6) may “augment” the pleadings with materials “susceptible to judicial

notice.” Cruz-Arce v. Mgmt. Admin. Servs. Corp., 19 F.4th 538, 543 (1st Cir. 2021). And

here, I find it proper to take judicial notice of the Epoch Times articles attached to

Defendants’ motion to dismiss, though only for the fact of their publication and content,

not for the supposed truth of their content. See Staehr v. Hartford Fin. Servs. Grp., Inc.,

547 F.3d 406, 425 (2d Cir. 2008). On the other hand, though I note the existence of several

other news articles submitted or cited by the parties and amicus curiae, because it would

be inappropriate for me to take judicial notice of the factual assertions found in those other

articles, and because the articles have been offered for no other purpose, I have disregarded

them entirely. Greenspan v. Random House, Inc., No. 12-1594, 2012 WL 5188792, at *1

(1st Cir. Oct. 16, 2012). With the record outlined, I turn to the merits.

“Under New York law, a plaintiff must establish five elements to recover in libel:

1) a written defamatory statement of fact concerning the plaintiff; 2) publication to a third

party; 3) fault (either negligence or actual malice depending on the status of the libeled

party); 4) falsity of the defamatory statement; and 5) special damages or per se actionability

(defamatory on its face).” Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir.

2000). Defendants’ Motion implicates the first, third, and fourth elements of this standard

because they contend that certain statements were opinion rather than fact (element 1),

other statements were substantially true (element 4), and no statement was published based

on actual malice (element 3).

I start with element 3, negligence versus actual malice. Quite clearly, the Epoch

Times is a public facing media enterprise and, therefore, a “public figure” that must prove

actual malice to sustain its libel action. Park v. Capital Cities Communications, Inc., 181

A.D.2d 192, 197, 585 N.Y.S.2d 902 (1992) (“The essential element underlying the

category of public figures is that the publicized [entity] has taken an affirmative step to

attract public attention.”). Similarly, although Dana Cheng identifies herself as a private

individual, she has taken affirmative steps to attract public attention on the very topics that

inform Defendants’ reporting about her. Because that reporting focuses on Cheng’s media

and public outreach activities, it is appropriate to require Cheng to prove actual malice

when it comes to her own libel action. See id. (private physician held to proof of actual

malice where alleged libel addressed physician’s active pursuit of media attention to garner

publicity for his practice). Cheng may not be a public figure for all purposes, but she

certainly is for the limited purpose of the Article that gives rise to this libel action.

Because both Plaintiffs are public figures for purposes of this action, they must

present facts that justify a finding of fault amounting to actual malice on the part of

Defendants. “Actual malice ‘must be supported by clear and convincing proof’ that the

publisher of the statements ‘had a subjective awareness of either falsity or probable falsity

of the defamatory statement or acted with reckless disregard of ... its truth or falsity.’”

Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233, 259 (2d Cir.), cert. denied, 142 S.

Ct. 563 (2021) (quoting Celle, 209 F.3d at 182-83). Plaintiffs do not clear this hurdle. The

core of Plaintiffs’ argument consists of flat assertions that the “Article itself shows

calculated falsehoods,” Def.’s Opp’n 18 (ECF No. 35), and that “Defendants demonstrated

a reckless attraction” to defaming Plaintiffs, Def.’s Opp’n 21. But mere recitations of the

actual malice standard cannot demonstrate a substantial basis in law for Plaintiffs’ suit. Cf.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (discussing threshold for surviving

motion to dismiss for failure to state a claim). A review of Plaintiffs’ Complaint, the

attached radio interview transcript, and supplemental information provided by Plaintiffs

fails to substantiate these conclusory allegations by revealing cause to infer that Defendants

knew or should have known that the Article contained falsehoods. In particular,

Defendants’ alleged failure to fact check the Article’s claims does not support an inference

of malice. Under New York law, alleged shoddy research cannot support an inference of

actual malice. Sackler, 144 N.Y.S.3d at 534 (defendant’s “insufficient research” did not

support a finding of actual malice); see also Reus, 148 N.Y.S.3d at 670 (defendant’s failure

to interview plaintiff prior to publishing critical article did not support a finding of actual

malice).

In addition to falling short of the high bar set by the actual malice standard, with the

exception of one otherwise non-actionable statement concerning Robert Mercer,4 Plaintiffs

cannot demonstrate a substantial basis to infer that any of the allegedly libelous statements

are both statements of fact (element 1) and false (element 4). Some of the challenged

statements are not actionable because they are “substantially true.” Franklin v. Daily

Holdings, Inc., 135 A.D.3d 87, 94, 21 N.Y.S.3d 6, 12 (2015). In this category are

Defendants descriptions of Cheng’s January 6 presence at the Capitol and her statements

during the Kim Monson Show. Defendants accurately reported that Cheng was present at

the January 6 Capitol riot, that she did not enter the Capitol building, and that she

subsequently attributed the riot to anti-fascist activists. The truth of Defendants’ statements

is evident in the record before me. In the radio interview transcript Plaintiffs attached to

the Complaint, Cheng admitted to having been at the Capitol when rioters broke into the

4 The Article’s assertion that Robert Mercer helped to fund the Epoch Times is the sort of “minor

inaccurac[y]” whose absence would not alter the Article’s overall message concerning Dana Cheng and the

Epoch Times and so cannot support their claim for defamation. Love v. William Morrow & Co., 193 A.D.2d

586, 587, 597 N.Y.S.2d 424, 426 (1993). In any event, the fact that Defendants subsequently corrected the

Article to remove this minor inaccuracy belies the argument that they knew of or recklessly disregarded its

building, and she claimed there was evidence that anti-fascists were responsible for the

violence. See Compl. Ex. B. Plaintiffs may dispute the Defendants’ characterization of

these facts in the Article, or the negative inference Plaintiffs may justifiably believe

Defendants wished to elicit from their readership, but they cannot dispute the baseline

veracity of the reporting.

As for Defendants’ characterizations of Cheng as a far-right conspiracy theorist and

the Epoch Times’ as a promoter of right-wing ideas, assuming that these aspersions falsely

malign Plaintiffs’ media activity, the statements nevertheless were not statements of “fact”

but rather commentary about what the facts in the article suggested to Defendants and

might suggest to an objective outsider. “[I]t is well settled in New York ‘that an alleged

libel is not actionable if the published statement could have produced no worse an effect

on the mind of a reader than the truth pertinent to the allegation.’” Franklin, 21 N.Y.S.3d

at 12 (quoting Guccione v. Hustler Mag., Inc., 800 F.2d 298, 302 (2d Cir. 1986)).

I begin with Defendants’ characterization of the Epoch Time as a promoter of certain

ideas. As a matter of fact, the Epoch Times has published articles rebuffing the prevailing

scientific position on vaccination and reporting on the QAnon theory that, perhaps without

exactly endorsing of those viewpoints, work to encourage and develop the patronage of

readers who share these heterodox perspectives. See Neumann Decl. ¶¶ 26–33 (ECF No.

12-1). Consequently, when Defendants reported in the Article that the Epoch Times

“promoted anti-vaccine misinformation and . . . QAnon,” they conveyed to the reader an

interpretation of existing facts associated with the publication record of the Epoch Times,

i.e., that the Epoch Times has published articles appealing to patrons who dispute the

efficacy of vaccination programs and the legitimacy of the 2020 election, as well as articles

unconcerned with the trustworthiness of purported national security leaks posted to

anonymous online message boards. If Epoch Times’ reporting in this vein is not literally

“promotion,” as Plaintiffs assert, then it can fairly be regarded as reporting that doles out

an alternative narrative simply to feed market demand for the same. Such conduct can fairly

be regarded as “promotion” in the mind of an objective outsider.

Similarly, to the extent that Plaintiffs argue for a more nuanced reading of the

challenged statements—that ascribing to the Epoch Times an anti-vaccine or pro-QAnon

worldview is not just a factual statement regarding the paper’s contents, but an implicit

characterization of the paper as irresponsible or disreputable—their claim fares no better.

Indeed, it merely reinforces the point I have been making thus far. This kind of value-laden,

journalistic perspective is not a statement of fact. Belief or disbelief in the mind of the

reader about Defendants’ subjective characterizations is a function of the reader’s own

political orientation, a phenomenon that is notoriously metaphysical and not neatly reduced

by a jury verdict form to test the truth. Covino v. Hagemann, 627 N.Y.S.2d 894, 895 (Sup.

Ct. 1995) (“Only false assertions of fact may be the subject of an action for defamation; an

expression of opinion is not actionable as a defamation, no matter how offensive,

vituperative, or unreasonable it may be, since it cannot be subjected to the test of truth or

falsity.” (citation omitted)); Cf. Milkovich, 497 U.S. at 19 (“[A] statement on matters of

public concern must be provable as false before there can be liability under state defamation

law ….”).

This brings us to the Article’s characterization of Cheng as a far-right conspiracy

theorists and the Epoch Times as a right-wing media outlet. It is understandable that these

pejoratives would be offensive to a journalist or media outlet seeking to project an air of

objectivity. However, “rhetorical hyperbole” and even “vigorous epithets” are not

actionable when the content of a publication, “as a whole,” makes it “clear to the reasonable

reader or listener that the accusation is merely a personal surmise built upon th[e] facts.”

Gross v. New York Times Co., 623 N.E.2d 1163, 1169 (N.Y. 1993) (quoting Greenbelt Co-

op. Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970)).5 So it is here. The name calling, however

offensive to Plaintiffs, was an expression lacking in “precise meaning” and clearly

packaged to convey to the reader the author’s judgment on the significance of the otherwise

substantially true statements contained elsewhere in the Article. Id. at 1167. See also id. at

1168 (“[A] proffered hypotheses that is offered after a full recitation of the facts on which

it is based is readily understood by the audience as conjecture.”). Like it or not, news

analysis is often delivered with plenty of English on the ball in service of an ideological

agenda and market viability. Whether such practices contribute positively to delivering our

species closer to the truth is a question for philosophers. It is not enough to support a

defamation claim.

The Epoch Times’ appeal to readers interested in QAnon as something more than a

conspiracy theory, like its appeal to readers holding an anti-vaccine perspective, invites

5 See also, cf. Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (concerning use of the word

“blackmail” – explaining that as a matter of law the usage was no basis for the imposition of liability under

state law, as “even the most careless reader must have perceived that the word was no more than rhetorical

hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely

critical commentary by persons for whom these perspectives are offensive or outlandish.

Whatever the proper political label is for readers of these persuasions, it has become a

shorthand to describe them as falling on the right of the spectrum, somewhere outside the

moderate or mainstream middle ground, if only to set them apart from the stereotypes

brought to mind by the equally facile left-wing conspiracy theorist label. In this way, the

right-wing label serves a communicative purpose for Defendants and their readers, even

though it is at best a low-resolution caricature and may not hit the bullseye when it comes

to describing the media objectives of the Epoch Times and Dana Cheng.

Whether epistemologically sound or not, media’s usage of labels like right-wing and

conspiracy theorist is a product of our times and our political culture. The meaning of these

words is supplied by “the broader social context and surrounding circumstances,” which

“signal” to readers that what is being read is something other than a statement of fact. Id.

at 1167. And because the Epoch Times has published media content having a tendency to

excite or pander to so-called right-wing sentiment, Defendants’ use of these labels to

describe not only the Epoch Times itself, but also Dana Cheng, an Epoch Times founder

and a media participant in her own right who characterizes mainstream American media as

communist-influenced, falls under the protection of New York law governing the use of

hyperbolic rhetoric and vigorous epithets concerning persons and topics of public interest.

In summary, Plaintiffs have failed to demonstrate that Defendants’ Article is not

presumptively protected from suit under New York Civil Rights Law § 76-a or that their

libel claim “has a substantial basis in law or is supported by a substantial argument for an

extension, modification or reversal of existing law” under New York Civil Practice Law

and Rule 3211(g).

CONCLUSION

Defendants’ Motion to Dismiss (ECF No. 12) is GRANTED.

SO ORDERED.

Dated this 3rd day of February, 2022.

/s/ Lance E. Walker

UNITED STATES DISTRICT JUDGE