King v. The Southern Poverty Law Center, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DONALD A. KING and DUSTIN )

INMAN SOCIETY, )

)

Plaintiffs, )

)

v. ) CASE NO. 2:22-CV-207-WKW

) [WO]

SOUTHERN POVERTY LAW )

CENTER, INC., )

)

Defendant. )

MEMORANDUM OPINION

In 2018, the Southern Poverty Law Center (SPLC) designated the Dustin Inman

Society, Inc., (DIS) as an “anti-immigrant hate group,” stating that its principal, Donald

A. King (King), “focuses on vilifying all immigrants.” (Doc. # 1 ¶¶ 25, 34.) Objecting

to that designation, DIS and King bring this lawsuit against SPLC for defamation under

state law. Plaintiffs contend that, although they advocate for the “enforcement of

immigration laws,” DIS is in no sense an anti-immigrant hate group. (Doc. # 1 ¶ 43.)

Plaintiffs maintain that SPLC knew that DIS was not an anti-immigrant hate group or

that, but for SPLC’s reckless disregard for the truth, SPLC would have known that the

designation was false. Plaintiffs contend that SPLC labeled DIS an anti-immigrant hate

group to destroy Plaintiffs’ reputation, to sabotage their efficacy in advocating before

legislative bodies to enforce immigration laws, and to increase SPLC’s fundraising.

(Doc. # 1 ¶¶ 53–54.)

Responding with a motion to dismiss under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, SPLC argues multiple grounds, including that the claims are time

barred under the statute of limitations and that the Complaint fails to state a claim.

(Doc. # 10.) Plaintiffs oppose the motion on all grounds. (Doc. # 18.)

In a prior Order, SPLC’s motion to dismiss was denied, and a memorandum

opinion was promised. (Doc. # 20.) This is the memorandum opinion explaining the

reasons for the denial.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction under 28 U.S.C. § 1332(a).

Personal jurisdiction and venue are not contested.

II. STANDARD OF REVIEW

When evaluating a motion to dismiss under Rule 12(b)(6), a court must take the

facts alleged in the complaint as true and construe them in the light most favorable to

the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To

survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Determining facial

plausibility “does not impose a probability requirement at the pleading stage; it simply

calls for enough fact to raise a reasonable expectation that discovery will reveal

evidence” of the alleged wrongdoing. Twombly, 550 U.S. at 545. The necessity at the

pleading stage for plausible allegations “reflects Rule 8(a)(2)’s threshold requirement

that the ‘plain statement’ possess enough heft to show that the pleader is entitled to

relief.” Id. (cleaned up). “And, of course, a well-pleaded complaint may proceed even

if it strikes a savvy judge that actual proof of those facts is improbable, and that a

recovery is very remote and unlikely.” Id. at 556 (citation and internal quotation marks

omitted).

When ruling on a Rule 12(b)(6) motion, a court may consider documents

attached to a motion to dismiss without converting the motion into one for summary

judgment if those documents “are referred to in the complaint, central to the plaintiff’s

claim, and of undisputed authenticity.” Hi-Tech Pharms., Inc. v. HBS Int’l Corp., 910

F.3d 1186, 1189 (11th Cir. 2018). Also, “[a] court may take judicial notice of its own

records . . . .” United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987); see also

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (observing that

“sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss”

include “documents incorporated into the complaint by reference, and matters of which

a court may take judicial notice”).

III. BACKGROUND

The background is divided into two parts. Part A addresses the allegations,

claims, and defenses at issue. Part B focuses on the proceedings in a related, but closed,

action—King v. Southern Poverty Law Center, Inc., No. 2:20-CV-120-ECM (M.D.

Ala. Feb. 20, 2020) (King I).

A. The Present Lawsuit

DIS is a non-profit Georgia corporation “with a stated mission and goal of

promoting the enforcement of immigration laws in the United States.” (Doc. # 1 ¶¶ 2,

11.)1 Mr. King, a Georgia citizen, chartered DIS in 2005 and is the “public face” of

the organization today. (Doc. # 1 ¶¶ 1, 12, 13.) DIS “has maintained the same or

substantially similar activities in the seventeen years it has operated.” (Doc. # 1 ¶ 12.)

On behalf of DIS, Mr. King has “advocated for enforcement of immigration laws in

the United States” before the U.S. House Representatives, the Georgia General

Assembly, and many other legislative panels. (Doc. # 1 ¶¶ 13, 53.) “Legislative

advocacy has been the primary activity of Plaintiff DIS since its founding and remains

so today.” (Doc. # 1 ¶ 19.) Mr. King has stated publicly on DIS’s website that “[o]ur

1 Unless the citation is to a particular paragraph within a document, all citations use the

pagination as designated by the CM/ECF filing system.

constant reminder has always been that we cannot honor real immigrants who join the

American family according to our rules and the rich tradition of immigration if we do

not enforce our immigration laws.” (Doc. # ¶ 41 (internal quotation marks omitted).)

As for DIS’s governance, DIS has a board of advisors comprising “a diverse group of

Americans with a variety of racial and immigration backgrounds.” (Doc. # 1 ¶ 30.)

SPLC is a non-profit Alabama corporation, self-described as “the premier U.S.

non-profit organization monitoring the activities of domestic hate groups and other

extremists . . . .” (Doc. # 1 ¶¶ 37, 3.) SPLC publicly “claims it has specialized

knowledge of the groups it monitors” and “the ability to conduct in depth

investigations” and “offer[] expertise” on what it calls “hate groups.” (Doc. # 1 ¶ 38.)

On its website, SPLC represents that it “currently track[s] more than 1,600 extremist

groups operating across the country” and that it “publish[es] investigative reports,

train[s] law enforcement officers and share[s] key intelligence, and offer[s] expert

analysis to the media and public.” (Doc. # 1 ¶ 37 & n.5.) A “former longtime staffer”

of SPLC has said that the “hate-group list” “remains a valuable resource for journalists

and a masterstroke of [Morris] Dees’s marketing talents.” (Doc. # 1 ¶ 52.)

The products of SPLC’s investigative activities are published on its website.

SPLC publishes an annual journal, titled “Intelligence Report,” maintains a “Hate

Map,” and produces web pages with profiles about the designated hate groups. (See,

e.g., Doc. # 1 ¶ 62; Doc. # 10-1 ¶ 3 & Exs. 2, 3, 5.) The Hate Map, which is an

interactive map of the United States, depicts the approximate locations of the

organizations that SPLC designates as hate groups, including anti-immigrant hate

groups. (Doc. # 1 ¶¶ 9, 10, 25.) SPLC defines an “anti-immigrant hate group” as:

the most extreme of the hundreds of nativist groups that have proliferated

since the late 1990s, when anti-immigration xenophobia began to rise to

levels not seen in the United States since the 1920s. Most white hate

groups are also anti-immigrant, but anti-immigrant hate groups target only

that population[,] usually arguing that immigrants are unable to assimilate,

have a lower intellectual capacity than white people, bring disease[,] or

are inherently more criminal. Although many groups legitimately

criticize American immigration policies, anti-immigrant hate groups go

much further by pushing racist propaganda and ideas about non-white

immigrants.

(Doc. # 1 ¶ 27.)

More than a decade ago, SPLC announced that DIS did not meet its definition

of an anti-immigrant hate group. In 2011, an SPLC representative, Heidi Beirich,

explained to the Associated Press why SPLC had not labeled DIS a hate group: Mr.

King’s “tactics have generally not been to get up in the face of actual immigrants and

threaten them[.] . . . Because he is fighting, working on his legislation through the

political process, that is not something we can quibble with, whether we like the law

or not.” (Doc. # 1 ¶ 17.) But in 2018 SPLC changed course, and, for the first time,

designated DIS as an anti-immigrant hate group in its annual Intelligence Report and

included DIS on its interactive Hate Map. (Doc. # 1 ¶¶ 14, 25.) After 2018, SPLC

continued to classify DIS as an “anti-immigrant hate group” in its Intelligence Reports

published in 2019, 2020, and 2021 and in its corresponding Hate Maps. (Doc. # 1

¶¶ 26, 31.) Also, at some point prior to February 2020, the SPLC first published a web

page profile on DIS. (Doc. # 10-1 ¶ 5 (citing hyperlinks for accessing the web page

profile on DIS as originally published and as currently published); Doc. # 10-1 ¶ 3).)

That web page profile pronounces that DIS, led by Mr. King, “poses as an organization

concerned about immigration issues, yet focuses on vilifying all immigrants.” (Doc.

# 1 ¶ 34; Doc. # 10-1 ¶ 5.)

Why did SPLC change its position in 2018 about DIS’s status as a hate group?

The Complaint alleges that Plaintiffs have made “no substantive change . . . in their

approach to supporting enforcement of immigration laws and opposing illegal

immigration.” (Doc. # 1 ¶ 23.) The Complaint also emphasizes that SPLC has not

publicly stated that DIS and Mr. King “ha[ve] engaged in activity different from the

activities they were engaged in at the time of [SPLC’s] July 2011 statement” to the

Associated Press that DIS was not a qualifying hate group. (Doc. # 1 ¶ 20; see also

Doc. # 1 ¶ 17.) SPLC also “did not change the criteria for the ‘hate group’ designation

from 2011 to 2018.” (Doc. # 1 ¶ 21.)

According to the Complaint, the only explanation SPLC has articulated for

designating DIS as a hate group in 2018 appeared in the Atlanta Journal-Constitution

in October 2017:

Heidi Beirich, who directs the SPLC’s efforts tracking hate groups and

extremists, said she was going to take a new look at the Dustin Inman

Society after learning from the AJC about its ties to US Inc. “Hearing

about this US Inc. connection, I think we at the SPLC have to take a

serious look at King’s outfit as possibly a hate group,” Beirich said,

“because there is no one more extreme than John Tanton and his crew on

immigration in the United States.”

(Doc. # 1 ¶ 15.) However, Plaintiffs contend “[n]othing about the[ir] alleged

association with US Inc causes” DIS to satisfy the SPLC’s own definition of a “hate

group.” (Doc. # 1 ¶ 16.)

Plaintiffs allege that there is an unspoken explanation for SPLC’s decision in

2018 to designate DIS as a hate group. SPLC’s classification of DIS as an “anti-

immigrant hate group” occurred within a month of SPLC’s registering lobbyists to

advocate “against a pro-enforcement bill pending in the Georgia General Assembly,”

an immigration bill supported by Mr. King, on behalf of DIS. (Doc. # 1 ¶¶ 24–25.)

Plaintiffs contend that SPLC’s repeated designations of DIS as a “hate group” is part

of SPLC’s “legislative lobbying strategy.” (Doc. # 1 ¶ 53.) Namely, “[b]y destroying

the reputation of Plaintiff DIS by maliciously defaming it, Defendant SPLC is more

likely to be successful in its lobbying efforts before the Georgia General Assembly.”

(Doc. # 1 ¶ 53; see also Doc. # 1 ¶ 55.) SPLC’s designation of DIS as a hate group

also allows SPLC to “claim that the number of hate groups has increased” and to

request more money from donors “to pursue its mission.” (Doc. # 1 ¶ 54.)

Plaintiffs allege that the following circumstances show that SPLC knew that its

designation of DIS as an anti-immigrant hate group was false or probably false. First,

SPLC is aware of Mr. King’s documented history of opposing only “illegal

immigration” through the “enforcement of immigration laws” and of not opposing legal

immigration. (Doc. # 1 ¶ 43; see also Doc. # 1 ¶ 41.) Second, SPLC knew at the time

of the defamatory publications that Mr. King’s “sister is a legal immigrant to the United

States, that the Board of Plaintiff DIS is racially diverse and includes legal immigrants,

and that the consistent unwavering position of Plaintiff King and Plaintiff DIS has been

to oppose illegal immigration.” (Doc. # 1 ¶ 35.) Third, SPLC did not conduct a

“meaningful fact finding or investigation” prior to designating DIS as an anti-

immigrant hate group. (Doc. # 1 ¶ 44.) Plaintiffs point to SPLC’s false assertions that

DIS was incorporated in 2003, that DIS previously was known as the American

Resistance Foundation, that Mr. King has worked on immigration issues since the

1990s, and that Mr. King worked for the Georgia Coalition of Immigration Reduction

in the 1990s. (Doc. # 1 ¶¶ 45–48.) According to the Complaint, these assertions are

false because DIS was not incorporated in 2003, DIS never was known as the American

Resistance Foundation, Mr. King did not become interested in immigration issues until

2003, and Mr. King did not work for the Georgia Coalition of Immigration Reduction

in the 1990s. (Doc. # 1 ¶¶ 45–48.) Plaintiffs allege that these false assertions show

SPLC’s “reckless disregard for the truth” in labeling DIS a “hate group.” (Doc. # 1

¶ 49.) Fourth, Plaintiffs have a publicly available email list and a regularly updated

blog on DIS’s website, which “make it clear that Defendant SPLC’s designation of

Plaintiff DIS as a ‘hate group’ does not meet [SPLC’s] own definition” of a hate group.

(Doc. # 1 ¶ 43.) Fifth, SPLC knows that Mr. King, on behalf of DIS, has publicly

“articulated a position that is opposed to illegal immigration and in favor of

enforcement immigration laws,” and it knows that Mr. King “has never espoused ‘anti-

immigrant’ positions.” (Doc. # 1 ¶ 43.)

After publication of the anti-immigrant hate group designation, Plaintiffs

requested a retraction, but SPLC ignored the request. (Doc. # 1 ¶¶ 77–78.) Seeking

legal recourse, Plaintiffs originally sued SPLC in an Alabama state court for SPLC’s

allegedly defamatory publications identifying DIS as an anti-immigrant hate group

based on Mr. King’s leadership. SPLC removed the action to this court. That action—

King I—was dismissed under Federal Rule of Civil Procedure 12(b)(6) in March 2022.

The dismissal was without prejudice. King I, ECF No. 19.

The next month, on April 27, 2022, Plaintiffs brought this action. The complaint

asserts four counts. In Counts One and Two, Plaintiffs allege that SPLC defamed DIS,

first, by classifying DIS as an “anti-immigrant hate group” in its annual Intelligence

Reports published in 2018, 2019, 2020, and 2021 (Count One) and, second, by

classifying DIS as a “hate group” in its annual Intelligence Reports and Hate Maps

published in 2019, 2020, and 2021 (Count Two). (Doc. # 1 ¶¶ 56–65.) In Count Three,

Plaintiffs allege that SPLC defamed Mr. King by claiming that he “leads an ‘anti-

immigrant hate group.’” (Doc. # 1 ¶ 68.) Count Three’s allegations state that the SPLC

published the defamatory statements labeling Mr. King as leading an “anti-immigrant

hate group” in its annual Intelligence Reports published in February of 2018 and 2019

and on its interactive Hate Map published in March of 2018, 2019, 2020, and 2021.

(Doc. # 1 ¶¶ 67, 70.) In Count Four, Plaintiffs allege that SPLC defamed Mr. King by

publishing statements that Mr. King “leads an ‘anti-immigrant hate group,’” which

“poses as an organization concerned about immigration issues” but that “focuses on

vilifying all immigrants.” (Doc. # 1 ¶¶ 72, 73.) Count Four’s allegations state that the

SPLC published these statements in its Intelligence Report in February of 2019 and on

its interactive Hate Maps in March of 2018, 2019, 2020, and 2021. (Doc. # 1 ¶¶ 72,

75.)

Counts Three and Four appear to incorrectly attribute the sources of the

publications to the Intelligence Reports and the Hate Maps. Other allegations in the

Complaint, as well as the exhibits to SPLC’s motion to dismiss, elucidate that the

statement that Mr. King leads an “anti-immigrant hate group” that “vilif[ies] all

immigrants” is published on SPLC’s web page profile on DIS, and is not published in

the Intelligence Reports or on the Hate Maps. Namely, the Facts section of the

Complaint incorporates SPLC’s web page profile on DIS. (See Doc. # 1 ¶ 42 n.10

(citing https://www.splcenter.org/fighting-hate/extremist-files/group/dustin-inman-

society ); see also Doc. # 1 ¶ 34).) That web page profile on DIS sets out the reasons

for SPLC’s decision to characterize DIS as an anti-immigrant hate group. The report

leads off with this subheading: “The Dustin Inman Society, led by D.A. King, poses

as an organization concerned about immigration issues, yet focuses on vilifying all

immigrants.” (Doc. # 1 ¶ 42 n.10; see also Doc. # 10-3 at 1 (a printed copy of SPLC’s

web page profile stating that “[t]he Dustin Inman Society, led by D.A. King, poses as

an organization concerned about immigration issues, yet focuses on vilifying all

immigrants” and that DIS “is a Georgia-based anti-immigrant hate group founded and

led by activist D.A. King”).)

In sum, the Complaint’s four claims, construed liberally, encompass four

categories of defamatory statements: (1) SPLC’s statements designating DIS as an

“anti-immigrant hate group”; (2) SPLC’s statements designating DIS as a “hate group”;

(3) SPLC’s statements designating Mr. King as the leader of an “anti-immigrant hate

group”; and (4) SPLC’s statements designating Mr. King as the leader of an “anti-

immigrant hate group” that “vilif[ies] all immigrants.” (Doc. # 1 ¶¶ 57, 58, 62, 63, 72,

73.) These allegedly defamatory statements occurred in three SPLC publications: The

Intelligence Report, the Hate Map, and the SPLC web page profile on DIS.

B. King I

To reiterate, this is not Plaintiffs’ first lawsuit alleging that SPLC defamed DIS

and Mr. King by designating DIS as an anti-immigrant hate group based on Mr. King’s

actions. The King I complaint included the allegedly defamatory statements in the

Intelligence Reports and Hate Maps published in 2018, 2019, and 2020 and the

allegedly defamatory statements published on SPLC’s web page profile on DIS that

Mr. King leads an anti-immigrant hate group that vilifies all immigrants. See King I,

ECF No. 3. The claims in King I mirror the claims in this case; however, the Complaint

in this case adds claims about allegedly defamatory statements in the Intelligence

Report and Hate Map published in 2021. Because the parties rely on King I to support

certain arguments, it is necessary to discuss King I.

In King I, SPLC filed a Rule 12(b)(6) motion on multiple grounds. The district

court agreed with one ground, finding that Plaintiffs did not adequately plead actual

malice. Actual malice is required by the First Amendment when state defamation law

applies to public figures, and Plaintiffs conceded in King I, as they do in this case (Doc.

# 18 at 29), that they fall into the public figure category. Under this standard, a public-

figure plaintiff must show that the defendant “made the alleged defamatory statement

with ‘actual malice’—‘with knowledge that it was false or with reckless disregard of

whether it was false or not.’” Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc.,

6 F.4th 1247, 1252 (11th Cir. 2021), cert. denied sub nom. Coral Ridge Ministries

Media, Inc. v. SPLC, 142 S. Ct. 2453 (2022) (quoting N.Y. Times Co. v. Sullivan, 376

U.S. 254, 279–80 (1964)).

The King I court framed the issue as whether Plaintiffs had “plausibly allege[d]

enough to demonstrate a reasonable likelihood that SPLC knew or suspected that its

designation [of DIS as an anti-immigrant hate group] was false.” ECF No. 19 at 8. In

a well-reasoned opinion on the sparse facts, the court found that Plaintiffs had not:

First, the Plaintiffs’ contention that SPLC affirmatively declined to

label DIS a hate group (rather than, say, neglected to do so) is not in the

complaint. The complaint only states that SPLC “had not labeled” DIS a

hate group “as late as October, 2017[,]” but otherwise does not ascribe to

SPLC any affirmative choice in declining to do so. (Doc. 3, para. 14). But

even if the Plaintiffs had alleged that SPLC had previously declined to

name DIS a hate group and then reversed itself, the Plaintiffs do not make

clear why that, in and of itself, would add up to actual malice. The

Plaintiffs do not point to anything that otherwise restricts SPLC from

changing its mind or reweighing its own criteria. [Internal footnote

omitted.] Even if SPLC declined to name DIS a hate group in the past,

the decision to do so now does not speak to whether SPLC knew or

suspected that the designation was false.

Further, while DIS’s board may be composed of immigrants as

Plaintiffs allege, the Plaintiffs do not allege that SPLC knew that fact.

Instead, the Plaintiffs appear to take umbrage with the fact that the SPLC

did not check the composition of DIS’s board before it published its

designation. [Internal footnote, stating: “The Plaintiffs also argue that

because King has an adoptive, immigrant sister, he and DIS cannot

therefore hate all immigrants, and so SPLC defamed them by saying they

did. Such a fact is not alleged in the complaint, nor is any indication that

SPLC knew that fact or made that resulting inference. It cannot, therefore,

support a conclusion that SPLC subjectively knew its anti-immigrant hate

group designation was false.”] But “a failure to investigate, standing on

its own, does not indicate the presence of actual malice.” Michel, 816

F.3d at 703 (citing Harte-Hanks, 491 U.S. at 692). Instead, “there must be

some showing that the defendant purposefully avoided further

investigation with the intent to avoid the truth.” Id. (citations omitted).

The Plaintiffs here make no such showing.

The Plaintiffs also allege in their complaint that SPLC took King’s

statements out of context and imputed the statements of others to him. But

it does not include any facts beyond that conclusory assertion—it is silent

as to which statements are out of context or were spoken by others, and

whether SPLC knew that fact. Such a conclusion without any attendant

support is insufficient to sustain a cause of action.

In their brief (but not in their complaint), the Plaintiffs assert that

“there is no evidence that Plaintiff King or Plaintiff DIS has beliefs or

practices that involve attacking or maligning all immigrants.” (Doc. 14 at

26). Maybe so. But even if true, and even [] if such an assertion had been

in the complaint, it does little to resuscitate the Plaintiffs’ claims. There

remains no assertion that SPLC knew that such evidence is lacking.

All told, the Plaintiffs plead no fact that would allow the Court “to

infer that SPLC seriously doubted the accuracy of designating [DIS] a hate

group.” Coral Ridge, 6 F.4th at 1253. The Plaintiffs’ barebones

complaint asks the Court to ignore the protections of the First Amendment

and to read actual malice into the pleadings where none has plausibly been

alleged. The Court declines to do so. As such, the Plaintiffs’ cause of

action for defamation (as well as their requests for punitive damages and

injunctive relief) cannot be sustained and are due to be dismissed.

Id., ECF No. 19 at 8–10.

The district court concluded that Plaintiffs “ha[d] failed to state a claim for which

relief may be granted,” granted SPLC’s motion to dismiss without prejudice, and

entered final judgment on March 29, 2022. Id., ECF No. 19 at 11, ECF No. 20.

Although the Order indicated that Plaintiffs would have an opportunity to amend the

complaint, the Order did not grant Plaintiffs leave to amend within a specified time

period or provide any terms for reopening or reinstating the case. Id., ECF No. 19,

at 10–11. Plaintiffs did not move to alter or amend the judgment in King I, see Fed. R.

Civ. P. 59(e), nor did they appeal the final judgment. Instead on April 27, 2022—29

days after the dismissal in King I but after the expiration of the statute of limitations on

the claims based on the allegedly defamatory statements at issue in King I—Plaintiffs

commenced this new action.

IV. DISCUSSION

SPLC challenges Plaintiffs’ defamation claims on three grounds. First, SPLC

contends that the two-year statute of limitations has run on claims based on allegedly

defamatory statements published more than two years prior to the filing of this action.

According to SPLC, the statute of limitations’ bar encompasses all Mr. King’s claims

and most of DIS’s claims, and only DIS’s post-King I claims for defamation arising

out of the 2021 publications of the Intelligence Report and Hate Map survive the time

bar. Second, it argues that, even if those claims are not time barred, collateral estoppel

prevents Plaintiffs from reviving the defamation claims alleged in King I. Third, SPLC

argues that Plaintiffs fail to state a claim for defamation arising out of the 2021

publications designating DIS as an anti-immigrant hate group. SPLC relies principally

on the protections of the First Amendment, arguing that SPLC’s characterization of

DIS as an anti-immigrant hate group is a protected opinion under the First Amendment

and that Plaintiffs have failed to plead actual malice. Plaintiffs oppose the motion on

all grounds, as discussed below.

A. Statute of Limitations, Statutory Tolling, and Equitable Tolling

SPLC invokes the statute of limitations as a defense to pare down the claims at

issue. (Doc. # 10 at 23–25.) Plaintiff responds by relying on the federal supplemental

jurisdiction statute—28 U.S.C. § 1367(d)—and on state-law equitable tolling to save

their claims. (Doc. # 18 at 15–17.)

Resolving the parties’ arguments requires consideration of a plethora of issues,

some of them thorny: (1) which state’s laws govern the statute of limitations (answer:

Alabama); (2) what is Alabama’s statute of limitations and its accrual date for a

defamation claim; (3) whether the Alabama Supreme Court would hold that in a

defamation action based on an internet publication, the single-publication rule

determines the accrual date for the statute of limitations; (4) which claims, if any, are

barred by Alabama’s two-year statute of limitations; (5) whether 28 U.S.C. § 1367(d)

tolls the statute of limitations on the time-barred claims where original jurisdiction in

King I was based on 28 U.S.C. § 1332(a); (6) whether Alabama’s principles of

equitable tolling suspend the running of the statute of limitations on the time-barred

claims; and (7) whether collateral estoppel bars Plaintiffs’ claims. These matters are

discussed in turn.

1. Alabama law governs the statute of limitations.

The logical starting point for analyzing the statute-of-limitations defense is to

determine which state’s laws govern the statute of limitations and tolling rules. A

district court sitting in diversity applies the choice-of-law rules of the forum state. Rosa

& Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824, 829 (11th Cir.

2016). Under Alabama’s choice-of-law rules, courts apply “the procedural law of the

forum state . . . .” Id.; Middleton v. Caterpillar Indus., 979 So. 2d 53, 57 (Ala. 2007)

(“Although lex loci delicti governs substantive law, lex fori—the law of the forum—

governs procedural matters.”).

Generally, statutes of limitations are “procedural matters.” Precision Gear Co.

v. Cont’l Motors, Inc., 135 So. 3d 953, 957 (Ala. 2013). The parties have not argued

that an exception to this general rule applies here,2 and independent research has not

uncovered an exception. Hence, Alabama law on the statute of limitations will be

applied. Also, because under Alabama law the statute of limitations incorporates

principles of equitable tolling, Alabama law will be relied upon for principles

governing equitable tolling. See Wade v. Danek Med., Inc., 182 F.3d 281, 289 (4th Cir.

1999) (providing that where “a state statute of limitations applies . . . under Erie in a

diversity action[,] the state’s accompanying rule regarding equitable tolling should also

2 For example, the Alabama Supreme Court has said: “[W]e will apply another state’s statute

of limitations only when it is demonstrated that ‘the limitation is so inextricably bound up in the

statute creating the right that it is deemed a portion of the substantive right itself.’” Etheredge v.

Genie Indus., Inc., 632 So. 2d 1324, 1327 (Ala. 1994) (citation omitted). The Eleventh Circuit has

explained that a statute of limitations is part of the substantive right, as described in Etheredge, “when

it is ‘built-in’ to the statute conferring the substantive right.” Ala. Aircraft Indus., Inc. v. Boeing Co.,

No. 20-11141, 2022 WL 433457, at *12 (11th Cir. Feb. 14, 2022). Here, as discussed in Part IV. C.,

it is not necessary at this stage to decide whether Alabama or Georgia substantive law applies to

Plaintiffs’ defamation claims. However, if Georgia substantive law applies, no argument has been

made that Georgia’s one-year statute of limitations for injuries to reputation, see Ga. Code Ann. § 9-

3-33, is a substantive element, rather than a procedural component, of a defamation claim. A cause

of action for defamation under Georgia law “is not a right created by statute, and thus the criterion

for applying another state’s statute of limitations is not applicable to this cause of action.” See

Precision Gear Co., 135 So. 3d at 957 (applying this rationale to hold that Alabama’s statute of

limitations governed while Oklahoma’s substantive law applied) (citation and internal quotation

marks omitted).

apply”). Again, the parties have not argued that a different state’s law should apply to

the tolling issues, and Plaintiffs rely on Alabama law. (Doc. # 18 at 16.)

Hence, the affirmative defense of the statute of limitations can supply grounds

for a claim’s dismissal if it is “clear from the face of the complaint” (1) that the claim

is time-barred, Ex parte Abbott Lab’ys, 342 So. 3d 186, 193 (Ala. 2021) (citation

omitted), and (2) that “tolling provisions do not apply.” Travis v. Ziter, 681 So. 2d

1348, 1351 (Ala. 1996) (citation omitted).

2. Alabama’s statute of limitations for a defamation claim is two years, and

the claim accrues on the publication date of the allegedly defamatory statement.

Under Alabama law, the statute of limitations on a defamation claim is two years.

See Ala. Code § 6-2-38(k) (“All actions of libel or slander must be brought within two

years.”). The two-year “statute of limitations for actions alleging libel or slander

prescribes a period that runs from the date of publication—that is the date on which the

injury to the plaintiff’s reputation occurs and the cause of action is completed.” Poff

v. Hayes, 763 So. 2d 234, 242 (Ala. 2000); see also Harris v. Winter, 379 So. 2d 588,

590 (Ala. 1980) (“It is the law of Alabama that a cause of action for libel accrues when

the libelous matter is published.” (citations omitted)).

As a general rule, “every distinct publication of libelous or slanderous material

gives rise to a separate cause of action, even if the material communicated by each

publication relates to the same matter as the previous publications.” Poff, 763 So. 2d

at 242 (citation omitted). An exception to this general rule is the single-publication

rule, which is “generally applicable only to newspapers and similar media.” Id. at 242

n.5. Under the single-publication rule, “repetition or republication of an identical libel

and slander is not a new cause of action for which a separate suit may be maintained,

but is merely an aggravation of the pre-existing cause, and in proper cases may tend to

show actual malice.” Id. (cleaned up) (quoting Age–Herald Publ’g Co. v. Huddleston,

92 So. 193, 197 (Ala. 1921)). In Age-Herald Publishing Co., the Alabama Supreme

Court said this: “If the mailing of copies of libelous newspapers from the county of

their primary publication into other counties amounts to a republication merely—and

no other theory seems available—then the law is well settled that the repetition or

republication of the identical libel is not a new cause of action for which a separate suit

may be maintained, but is merely an aggravation of the pre-existing cause, and in

proper cases may tend to show actual malice.” 92 So. at 197 (collecting cases). As

Poff also elaborated, “[T]he exception enunciated in Age–Herald Publ’g Co. applies

only to situations where subsequent acts of defamation are verbatim republications of

previously made libelous or slanderous statements.” 763 So. 2d at 242 n.5. This case

does not involve a newspaper, but the worldwide web; hence, the next issue is whether

the Alabama Supreme Court would apply the single-publication rule to internet

publications. If it would, the statute of limitations for a claim alleging internet

defamation would accrue on the date of the original internet publication.

3. As to the novel issue of whether the Alabama Supreme Court would

apply the single-publication rule to internet publications, the court declines to predict

at this stage how the Alabama Supreme Court would decide.

To begin, as to the publication dates of the allegedly defamatory statements in

SPLC’s Intelligence Report and Hate Map, the allegations show that these two

publications are reassessed and reposted annually. (See, e.g., Doc. # 1 ¶¶ 9–10, 25–26,

57, 60, 62, 65, 72.) Hence, at a minimum, these annual publications of the Intelligence

Report and Hate Map restart the clock for the defamation claims. Poff, 763 So. 2d

at 242. SPLC concedes that the “hate-group-designation claims . . . based on the

Intelligence Report and Hate Map published in the spring of 2021” are not time barred.

(Doc. # 10 at 25.) However, as to the publication dates of the allegedly defamatory

statements on SPLC’s web page profile on DIS, SPLC’s arguments invoke the single-

publication rule. SPLC argues that, because it originally posted its web page profile

on DIS “before [King I] was filed” (Doc. # 10-1 ¶ 3), and because SPLC has not edited

this web page profile since its original posting, the statute of limitations accrued on the

date the web page profile on DIS was first posted on the internet.3 (See Doc. # 10 at

24–25 & n.5; Doc. # 10-1 ¶ 5.) SPLC contends that, because the original posting of

3 The Complaint includes an active hyperlink to SPLC’s web page profile on DIS, which

plausibly shows that SPLC’s web page profile on DIS has remained accessible on SPLC’s website

since its original posting. (See Doc. # 1 at 9 n.10 (citing https://www.splcenter.org/fighting-

hate/extremist-files/group/dustin-inman-society).)

the web page profile on DIS occurred more than two years prior to the filing of this

lawsuit, the allegedly defamatory statements published on that web page are time

barred. (See Doc. # 10 at 24–25 & n.5; Doc. # 10-1 ¶ 5.) Plaintiffs do not offer a

counterargument (because their arguments focus solely on tolling, as discussed below).

There are two impediments to the court’s adoption of SPLC’s arguments at this

stage. First, SPLC relies on the attestation of Shannon L. Holliday that SPLC’s web

page profile on DIS “has not changed or been altered since the filing of the initial

litigation in 2020.” (Doc. # 10-1 ¶ 5.) While the affidavit includes hyperlinks Holliday

says are the web page profiles on DIS as posted in February 2020 and as posted

“currently,” (Doc. # 10-1 ¶ 5), adopting Holliday’s attestation—that the web page

prolife “has not changed or been altered since the filing of the initial litigation in 2020”

(Doc. # 10-1 ¶ 5)—comes too close to comfort as constituting consideration of “matters

outside the pleadings,” Fed. R. Civ. P. 12(d).

Second, the parties have not cited a decision from the Alabama Supreme Court

or from any Alabama court addressing whether the single-publication rule applies to

postings of allegedly defamatory statements on the internet. The court’s independent

research uncovered no published decision from any Alabama court. Hence, this court’s

duty is to predict how the Alabama Supreme Court would decide the issue. See, e.g.,

State Farm Mut. Auto. Ins. Co. v. Duckworth, 648 F.3d 1216, 1224 (11th Cir. 2011)

(“Where, as here, we find no [state] Supreme Court decision directly on point, we must

anticipate how the [state] Supreme Court would decide this case.” (citation omitted)).

Other jurisdictions—both federal and state—have uniformly applied the single-

publication rule to internet publications. See Pippen v. NBCUniversal Media, LLC,

734 F.3d 610, 615 (7th Cir. 2013) (recognizing that “[e]very state court that has

considered the question applies the single-publication rule to information online”

(collecting cases) and concluding that, “if presented with the opportunity, the Supreme

Court of Illinois would deem the single-publication rule applicable to the Internet”); In

re Philadelphia Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012), as corrected (Oct.

25, 2012) (“We believe that Pennsylvania courts would extend the single publication

rule to publicly accessible material on the Internet.”); Eramo v. Rolling Stone, LLC,

209 F. Supp. 3d 862, 879 (W.D. Va. 2016) (“Jurisdictions that have adopted the single

publication rule are ‘nearly unanimous’ in applying it to internet publications.”

(citation omitted)); Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 1051–52 & n.3

(D.N.D. 2006) (“[O]ther jurisdictions are nearly unanimous in holding that the single

publication rule applies in defamation actions arising out of internet publications”

(collecting cases)).

Courts have provided the following reasoning. First, “excluding the Internet

from the single-publication rule would eviscerate the statute of limitations and expose

online publishers to potentially limitless liability.” Pippen, 734 F.3d at 615. Second,

“the single publication rule is more consistent with modern practices of mass

production and widespread distribution of printed information than the multiple

publication rule.” Churchill v. State, 876 A.2d 311, 316 (N.J. Super. Ct. App. Div.

2005) (citation and internal quotation marks omitted). Third, “[t]he purposes behind

the single-publication rule align with the Internet as a means of communication.”

Salyer v. SPLC, No. 3:09-CV-44-H, 2009 WL 1036907, at *3 (W.D. Ky. Apr. 17,

2009). Namely, “[t]he desires to avoid multiplicity of actions; to protect the defendant

from excessive liability based on a single publication run; to allow the plaintiff to

recover all of his damages at once; and to reduce the chilling effect that the common-

law rule might have on the mass communication of ideas, are all applicable to Internet

publications.” Id. (citation and internal quotation marks omitted).

However, notwithstanding those courts’ rationales, tethering the single-

publication rule to an internet publication is not a smooth sail. One can surmise that

beneath the surface there are shipwrecked reputations, careers, families, and civil rights

of every description torpedoed by the single-publication rule as applied to the internet

leviathan. The court has found no case where another court has sifted the factual sands

of just what counts as “publication” as opposed to “posting” or whether “publication”

has as a component the triggering of an inchoate harm by a simple click, when that

click is entirely foreseeable. What is written—as it were—on the internet is not written

in sand or even on processed wood pulp; it is written in stone, and its injury arguably

occurs each time a user clicks on the post.

As a matter of fact, and not of law, courts should establish a robust factual record

on what constitutes “publication” and “republication,” at least in the context of libel.

That robust factual record is not established here on Rule 12(b)(6) review, and the

parties’ arguments have given this issue short shrift. The court declines at this stage of

the litigation to predict whether the Alabama Supreme Court would apply the single-

publication rule to internet publications. On better briefing and on the evidence, after

discovery has progressed, the parties can raise the issue of whether the single-

publication rule extends to the internet.

4. The claims in question survive the statute of limitations defense on Rule

12(b)(6) review.

Based on the foregoing analysis, for now, all claims proceed past SPLC’s statute

of limitations defense. To be clear, the ruling is not that the statute of limitations

defense does not bar the claims in question, but only that the Rule 12(b)(6) record is

insufficient to make an informed decision on whether the defense is meritorious.

However, it still is necessary to address and reject Plaintiffs’ arguments because they

invoke misplaced reliance on tolling principles.

5. 28 U.S.C. § 1367(d)’s thirty-day tolling provision does not apply to this

case.

Relying on 28 U.S.C. § 1367(d), Plaintiffs argue that the limitations period on

the state-law defamation claims was statutorily tolled for thirty days after the claims’

dismissal in King I. They contend that, because they refiled the present lawsuit within

thirty days of the dismissal in King I, this lawsuit timely reasserts the King I claims.

(See Doc. # 18 at 16–17.) There is no support for this argument.

Contrary to Plaintiffs’ argument, § 1367(d) does not provide a basis for statutory

tolling. Section 1367(d) tolls the limitations period for a claim brought under 28 U.S.C.

§ 1367(a) during the claim’s pendency and for at least thirty days after its dismissal.

Section 1367(a) supplies supplemental jurisdiction over related state-law claims “in

any civil action of which the district courts have original jurisdiction.” § 1367(a). By

its terms, § 1367(a) is not a source of jurisdiction where the district court has “original

jurisdiction” over the state-law claims. Because the district court in King I had original

jurisdiction (not supplemental jurisdiction) over the state-law defamation claims under

28 U.S.C. § 1332(a), consideration of § 1367(a) was unnecessary. Significantly, the

court in King I did not rely on § 1367(a) as the source of subject matter jurisdiction; it

relied on 28 U.S.C. § 1332. See King I, ECF No. 19 at 2. In other words, supplemental

jurisdiction was not at issue in King I because the court had original diversity

jurisdiction over the state-law claims. Hence, the tolling provision of § 1367(d) is

inapplicable.

6. Alabama’s principles of equitable tolling do not suspend the running of

the statute of limitations on Plaintiffs’ claims.

The discussion in this section assumes, for argument only, that SPLC’s statute

of limitations defense ultimately is meritorious. Under that assumption, Plaintiffs

assert that equitable tolling avoids any bar raised by the two-year statute of limitations.

Plaintiffs contend that, because in King I, they timely brought their defamation claims

within the two-year statute of limitations and because they “quickly acted” to re-file

this lawsuit after the King I court dismissed their case without prejudice, Alabama’s

principles of equitable tolling save their claims. (Doc. # 18 at 16–17.) Plaintiffs further

assert that they should not be penalized for any delay because “[t]he intervening

pandemic caused by the novel coronavirus undoubtedly qualifies as an extraordinary

circumstance beyond the control of both King and DIS.” (Doc. # 18 at 16–17.)

Plaintiffs’ reliance on equitable tolling cannot prevail. The bottom-line is that

Plaintiffs’ earlier suit against SPLC (King I) did not toll the statute of limitations during

that lawsuit’s pendency.

First, Plaintiffs’ focus on King I’s dismissal without prejudice is misguided

based on the intersection of federal and state laws. In federal court, “a dismissal

without prejudice is tantamount to a dismissal with prejudice when the dismissal has

the effect of precluding a party from refiling his claim due to the running of the statute

of limitations.”4 Parrish v. Ford Motor Co., 299 F. App’x 856, 862 (11th Cir. 2008)

(citing Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B 1981)); see also Stein v.

Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982) (“The fact that dismissal of an

earlier suit was without prejudice does not authorize a subsequent suit brought outside

of the otherwise binding period of limitations.” (citation omitted)); see also 54 C.J.S.

Limitations of Actions § 347 (As a general rule, “when an action is dismissed without

prejudice, the statute of limitations will bar a later suit if the statute runs in the interim.”

(collecting cases)). Additionally, in a diversity suit like this one, state law governs

whether time-barred claims can be renewed after the lawsuit has suffered a non-merits

dismissal. Where the applicable state’s law has a savings statute (also called a renewal

statute) that permits a plaintiff to refile an action previously dismissed for non-merit

reasons, the statute of limitations will be tolled if the plaintiff refiles within the

statutorily specified time period. See generally 54 C.J.S. Limitations of Actions § 347.

Unfortunately for Plaintiffs, Alabama law does not have a renewal statute. See, e.g.,

Freer v. Potter, 413 So. 2d 1079, 1082 (Ala. 1982) (recognizing that Alabama does not

4 At least one circuit has concluded that the statute of limitations “is tolled by the filing of a

complaint which is later dismissed without prejudice if the order of dismissal grants leave to amend

within a time certain,” and the new complaint is filed within that time certain. Brennan v. Kulick,

407 F.3d 603, 606–07 (3d Cir. 2005) (distinguishing between “final and conditional orders of

dismissal”) (citation omitted). Here, the King I Order neither granted Plaintiffs leave to amend within

a specified time period nor provided any terms for reopening or reinstating the case. To the contrary,

final judgment was entered.

have a “renewal statute allowing for the extension of the statute of limitations upon the

dismissal of a suit”); cf. Ga. Code Ann. § 9–2–61 (Georgia’s renewal statute).

Second, Plaintiffs do not satisfy the prerequisites for equitable tolling. In

Weaver v. Firestone, 155 So. 3d 952, 957–58 (Ala. 2013), the Alabama Supreme Court

set out the prerequisites:

“[A] litigant seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way” as to the filing of his

action. In Ex parte Ward, 46 So. 3d 888 (Ala. 2007), this Court “[held]

that equitable tolling is available in extraordinary circumstances that are

beyond the petitioner’s control and that are unavoidable even with the

exercise of diligence.” 46 So. 3d at 897.

Id. (internal citation omitted). As to the first element, Plaintiffs argue that they pursued

their rights diligently because they “acted quickly, filing this Complaint within thirty

(30) days of [King I’s] Order, recasting their factual allegations and pleading

additional[,] more specific allegations.” (Doc. # 18 at 16.) While Plaintiffs may have

“acted quickly” in refiling this suit, Plaintiffs did not diligently pursue legal remedies

available to them in King I. Equitable tolling descends from principles of equity,

Weaver, 155 So. 3d at 957–58, and “[i]t is a longstanding maxim of Anglo–American

law that relief in equity generally is inappropriate when the moving party has an

adequate remedy at law.” Justice v. United States, 6 F.3d 1474, 1480–81 (11th Cir.

1993) (citations omitted); Younger v. Harris, 401 U.S. 37, 43–44 (1971) (observing

that a “basic doctrine of equity jurisprudence” is that “courts of equity should not act

. . . when the moving party has an adequate remedy at law”).

Plaintiffs had adequate legal remedies to preserve their claims in King I, and the

record in King I shows that they did not pursue these legal remedies. See United States

v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of

its own records . . . .”). Plaintiffs could have moved to alter or amend the judgment

under Rule 59(e). See Fed. R. Civ. P. 59(e). In that motion, they could have notified

the district court that the dismissal without prejudice functioned as a dismissal with

prejudice because the statute of limitations had expired on their state-law defamation

claims, and they could have pointed out that Alabama law did not have a renewal

statute.

Plaintiffs could have asked for permission to file an amended complaint in King

I instead of dismissal without prejudice or for the court to reopen and reinstate their

lawsuit. Plaintiffs also could have filed a motion under Rule 60(b) for relief from the

judgment. See Fed. R. Civ. P. 60(b). Finally, Plaintiffs could have appealed King I’s

final judgment dismissing the action without prejudice. Justice, 6 F.3d at 1481 (“The

right to appeal generally is regarded an adequate legal remedy which forecloses

equitable relief.”). Because Plaintiffs did not avail themselves of their post-judgment

remedies at law in King I, they did not pursue their rights diligently. See Weaver, 155

So. 3d at 957. Plaintiffs’ failure to pursue their legal remedies prevents the application

of equitable tolling. Equity will not intervene, even where the legal remedies are no

longer available to a plaintiff. See also Comm’r v. Shapiro, 424 U.S. 614, 634 (1976)

(“If . . . the absence of a remedy at law at this time is due to respondent’s failure to

pursue that remedy, then equity will not intervene and the complaint should be

dismissed. The inadequacy of his legal remedy would then be due to his own choice

not to pursue it.”).

Also, neither the complaint nor the King I record reveals there was “some

extraordinary circumstance” that “stood in [Plaintiffs’] way” from pursuing their legal

remedies in King I. Weaver, 155 So. 3d at 957 (citation and quotation marks omitted).

Plaintiffs may have been perplexed as to how to move forward after the closure of their

case in King I, but Plaintiffs have not alleged or shown that pursuit of legal relief in

King I was “beyond [Plaintiffs’] control” and was “unavoidable even with the exercise

of due diligence.” Id. at 958. Plaintiffs have not met the second element required to

equitably toll the statute of limitations. Equitable tolling cannot save Plaintiffs’

untimely defamation claims.

Plaintiffs make two alternative arguments tied to King I, but those ties easily

unravel because they are based on erroneous understandings of the law. First, Plaintiffs

ask the court to “transfer this matter to the original civil action” in King I, but they cite

no authority that would permit a transfer of a later-filed action to an earlier-filed action

that is closed. (Doc. # 18 at 17.) This argument, although creative, lacks citation to

authority and would amount to a work-around for plaintiffs, who when faced with an

adverse final judgment, did not avail themselves of available legal remedies, including

the right to appeal. Cf. Blanchard v. Walker, No. 2:20-CV-696-WKW, 2022 WL

4357449, at *1 (M.D. Ala. Sept. 20, 2022) (finding that the plaintiff’s motion to

consolidate his time-barred action with his earlier-filed closed action amounted to an

impermissible attempt to circumvent the finality of the earlier judgment).

Second, Plaintiffs contend that they should not be penalized if the statute of

limitations expired during the pendency of King I. (See Doc. # 18 at 16 (“While there

may be multiple reasons for the time required to rule on SPLC’s original Motion to

Dismiss, including a worldwide pandemic caused by the novel coronavirus, none of

that delay was caused by either King or DIS.”).) The time that the motion was pending

is something that was “beyond [Plaintiffs’] control,” Weaver, 155 So. 3d at 958;

however, exercising available legal remedies after the entry of judgment in King I was

within Plaintiffs’ control. Plaintiffs’ failure to pursue available legal remedies makes

Plaintiffs’ circumstances unextraordinary. Hence, to the extent that Plaintiffs’ claims

are barred by the statute of limitations, Plaintiffs cannot rely on equitable tolling to

suspend the running of the statute of limitations.

B. Collateral Estoppel

SPLC argues that the affirmative defense of collateral estoppel bars Plaintiffs

from relitigating the actual malice allegations they made in King I. (Doc. # 10 at 43;

Doc. # 19 at 18–20.) After careful consideration of the arguments, the court finds it

more prudent to defer the issue of the effect of collateral estoppel until summary

judgment. For example, the parties’ briefing on the source of law is inadequate. There

is confusion among the briefing as to what law applies. Across the briefs, the parties

cite federal common law, Alabama law, and Georgia law. (See Doc. # 10 at 43; Doc.

# 18 at 33; Doc. # 19 at 18–20.) No party addresses the holding in CSX Transportation,

Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1340 (11th Cir. 2017), “that federal common

law borrows the state rule of collateral estoppel to determine the preclusive effect of a

federal judgment where the court exercised diversity jurisdiction.”). And no party

tackles an analysis of which state’s law applies if federal common law applies.

C. Choice of Law

SPLC argues that Alabama’s choice-of-law rules dictate that Georgia law applies

to Plaintiffs’ defamation claims. (Doc. # 10 at 24, 36–38.) A district court sitting in

diversity applies the choice-of-law rules of the forum state. Rosa & Raymond Parks

Inst. for Self Dev., 812 F.3d at 829. Under Alabama’s choice-of-law rules, Alabama

courts apply lex loci delicti to tort claims, meaning that “an Alabama court will

determine the substantive rights of an injured party according to the law of the state

where the injury occurred.” Ex parte U.S. Bank Nat’l Ass’n, 148 So. 3d 1060, 1069

(Ala. 2014) (citation and quotation marks omitted). SPLC argues that any injury to

Plaintiffs would have occurred in Georgia, the state where Plaintiffs are citizens and

where (according to the Complaint’s allegations) they focus their activities. Plaintiffs

do not address this choice-of-law issue.

On this record, there is no meaningful opposition to SPLC’s position that the

state of Plaintiffs’ citizenship and activities is the situs of their alleged injuries. But,

for two reasons, it is unnecessary at the motion-to-dismiss stage to decide whether

Alabama or Georgia law applies. First, it does not appear that there is an actual conflict

between Alabama law and Georgia law on defamation. Compare Drill Parts & Serv.

Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1289 (Ala. 1993) (setting out the four elements

of defamation under Alabama law) with Am. C.L. Union, Inc. v. Zeh, 864 S.E. 2d 422,

427 (Ga. 2021) (setting out the same four elements of defamation under Georgia law).

If there is a conflict, it will be in the caselaw, and the parties have not pointed it out.

Second, SPLC’s arguments focus principally on the First Amendment’s limitations in

defamation cases involving public figures. Because the First Amendment limitations

apply regardless of whether Georgia or Alabama law applies, determining which state’s

law applies will be reserved for another day.

C. The Merits of the Defamation Claims

The analysis now turns to the merits of Plaintiffs’ defamation claims. The

Complaint alleges three categories of defamatory statements: the “anti-immigrant hate

group” designation, the “hate group” designation, and the statement that Mr. King

“vilifies all immigrants.” Because of their similarity, the allegedly defamatory

statement that Mr. King vilifies all immigrants, for purposes of Rule 12(b)(6) review,

is subsumed within the discussion of the anti-immigrant hate group designation. For

all three, SPLC challenges the sufficiency of the pleadings on First Amendment

grounds.

Because Plaintiffs “readily concede that they are public figures for the purpose

of defamation law,” (Doc. # 18 at 29), additional federal-law limitations “deriv[ing]

from the First Amendment” govern their defamation claims. Berisha v. Lawson, 973

F.3d 1304, 1314 n.6 (11th Cir. 2020). The additional public-figure First Amendment

limitations are three. First, to state a claim, the allegedly defamatory statement must

be “‘sufficiently factual to be susceptible of being proved true or false.’” Coral Ridge,

6 F.4th at 1252 (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)). “Second,

the statement must be actually false.” Id. (citing Milkovich, 497 U.S. at 16). “[T]hird,

a public-figure plaintiff must prove that the defendant made the alleged defamatory

statement with ‘actual malice.’” Id. (quoting N.Y. Times, 376 U.S. at 279–80).

SPLC argues that its characterization of DIS as an anti-immigrant hate group,

and a hate group more generally, is protected by the First Amendment from a

defamation claim and that the allegations fail on these First Amendment requirements.

The court analyzes whether Plaintiffs have plausibly pleaded the constitutional

requirements for their defamation claims.

1. Anti-immigrant Hate Group Designation

As to the anti-immigrant hate group designation, SPLC argues that Plaintiffs fail

to state a defamation claim (1) because the anti-immigrant hate group designation is

not provable as false, and (2) because Plaintiffs have not sufficiently alleged that SPLC

published the designation with actual malice. (Doc. # 10 at 28–36, 39–42.) For the

following reasons, the court finds, at least at this early stage and embracing the

plausibility standard, that Plaintiffs have sufficiently alleged both constitutional

requirements. Importantly, the following analysis is for the anti-immigrant hate group

designation, and the related statement that Mr. King “vilifies all immigrants,” not the

broader “hate group” designation.

a. Provable as False

SPLC argues that labeling DIS as an anti-immigrant hate group is “an expression

of opinion protected under the First Amendment” because the term “anti-immigrant

hate group” “is not capable of being empirically proven true or false.” (Doc. # 10 at

28–36); (see also Doc. # 10 at 10–11 (citing Milkovich, 497 U.S. at 19–20).) SPLC

argues that the designation is a “political opinion” on a “highly controversial matter[]”

that is not provable as false. (Doc. # 10 at 32–33.) Plaintiffs counter that SPLC’s

classification of DIS as an anti-immigrant hate group on its online publications of the

Hate Map and Intelligence Report is not “merely an opinion” but conveys to a

reasonable reader a fact reached after “some rigorous analysis.” (Doc. # 18 at 17–18.)

Plaintiffs have the better argument.

In Milkovich, the Supreme Court clarified that the First Amendment protects

“rhetorical hyperbole” that “cannot reasonably be interpreted as stating actual facts

about an individual.” 497 U.S. at 20. However, on the other end of the spectrum, an

opinion is actionable as defamation when the assertion “is sufficiently factual to be

susceptible of being proved true or false.” Id. at 21. Where the opinion is sufficiently

factual, the First Amendment offers no protection. Id.

Whether an assertion is sufficiently factual requires consideration of “the

circumstances in which the statement was expressed.” Horsley v. Rivera, 292 F.3d

695, 702 (11th Cir. 2002). “[T]he tone of the speech and its medium of expression can

often signal opinion or nonliteral assertions of fact, especially within the political

arena.” Bennett v. Hendrix, 325 F. App’x 727, 741 (11th Cir. 2009) (citing Milkovich,

497 U.S. at 21 (noting “the general tenor of an article” may negate a literal assertion)).

Other considerations include “the type of language used, the meaning of the statement

in context, whether the statement is verifiable, and the broader social circumstances in

which the statement was made.” Milkovich, 497 U.S. at 24 (Brennan, J., with whom

Marshall, J. joined, dissenting).

Examining the circumstances, as set out in the Complaint and exhibits, the court

concludes that a reasonable person could have believed that SPLC’s designation of DIS

as an “anti-immigrant hate group” was factual and not a mere expression of rhetorical

hyperbole. This determination is based on the following observations.

First, SPLC does not advertise itself as a political pundit. To the contrary, SPLC

self-proclaims that it “is the premier U.S. non-profit organization monitoring the

activities of domestic hate groups and other extremists” and that it possesses “key

intelligence,” “offer[s] expert analysis to the media and public,” “publish[es]

investigate reports,” and “train[s] law enforcement officers.” (Doc. # 1 ¶ 37.) SPLC

no doubt has a well-established presence and prestige on the national stage for ferreting

out “hate groups.” The allegations about SPLC’s portrayal of its elite status in tracking

and investigating hate groups and its specialized knowledge make it plausible that a

reasonable reader would discern that, when SPLC designates a group an “anti-

immigrant hate group,” the designation is factually based after extensive investigation.

Hyperbole is thus off the table in this analysis.

Second, the medium of expression—the online publications of the Intelligence

Report and the Hate Map—and, relatedly, the tone of the published information about

DIS, more closely resemble a fact-based periodical rather than an opinion column,

particularly given SPLC’s edict of its expertise. For example, the 2021 Intelligence

Report lists eighteen anti-immigrant hate groups, including DIS, and reports that the

change in national administration has resulted in “the anti-immigrant movement’s

decades-long strategy of focusing on supporting and building up its network of state

and local allies,” and that anti-immigrant hate groups have placed significant emphasis

“on developing relationships with governors, state legislatures and sheriffs, especially

in U.S. states bordering Mexico,” an emphasis that SPLC reports “is necessary for the

movement to maintain its influence on immigration policy.” (Doc. # 10-6 (printout of

SPLC’s online publication of its 2021 Intelligence Report).) Similarly, the Hate Map

includes annual statistical data on the number of hate groups, the states in which they

are located, and the groups’ ideologies. (Doc. # 1 at 13 n.13 (citing

https://www.splcenter.org/hate-map).)

SPLC’s annual reports are different in character from statements that the

Supreme Court and Eleventh Circuit have found amounted to protected rhetorical

hyperbole. See Horsley, 292 F.3d at 701–02 (collecting cases); see, e.g., id. at 702

(after the murder of a physician who performed abortions, Geraldo Rivera’s statement

during a television interview with an anti-abortion activist that the activist was an

“accomplice to murder” was rhetorical hyperbole because “no reasonable viewer

would have concluded that Rivera was literally contending that [the activist] could be

charged with a felony in connection with [the physician’s] murder”); see, e.g., id. at 701

(citing Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13–14 (1970), for

Greenbelt’s holding that “the term ‘blackmail,’ in characterizing the negotiating

position of a public figure who was seeking zoning variances while a city was

attempting to acquire another tract from him, was not ‘slander’ when spoken in heated

public meetings of city council or ‘libel’ when reported in newspaper articles, inasmuch

as it was impossible to believe that a listener or reader would think that a crime had

been charged”). SPLC’s statements were not made during a heated public debate, but

rather were published, arguably after deliberation and investigation. Construing the

inferences in Plaintiffs’ favor, a reasonable reader could conclude that SPLC was

“literally contending” that DIS is a group that hates and vilifies all immigrants.

Horsley, 292 F.3d at 702. These circumstances are enough “to raise a reasonable

expectation that discovery will reveal evidence,” Twombly, 550 U.S. at 556, that

SPLC’s designation of DIS as an anti-immigrant hate group “is sufficiently factual to

be susceptible of being proved true or false.”5 Milkovich, 497 U.S. at 21

b. Actual Malice

In New York Times, the Supreme Court held that, when a public official brings a

defamation suit, the First Amendment requires the plaintiff to show that the defendant,

in publishing the defamatory statement, acted with actual malice. 376 U.S. 254, 279–

80. The Supreme Court later extended the New York Times actual-malice requirement

to defamation lawsuits brought by public figures. See, e.g., Curtis Publ’g Co. v. Butts,

388 U.S. 130 (1967). Plaintiffs concede that they are public figures for purposes of

defamation law. (Doc. # 18 at 29.)

5 For the same reasons, SPLC’s parallel arguments that the anti-immigrant hate group

designation is not provable as false under Georgia law also fail. (Doc. # 10 at 36–39 (citation and

internal quotation marks omitted).)

To satisfy the actual malice standard, a public figure must establish that a

defamatory statement was made “with knowledge that it was false or with reckless

disregard of whether it was false or not.” N.Y. Times, 376 U.S. at 280. “Reckless

disregard” is not gauged “by whether a reasonably prudent man would have published,

or would have investigated before publishing.” St. Amant v. Thompson, 390 U.S. 727,

731 (1968). There must be sufficient allegations from which to infer that the defendant

“made the false publication with a ‘high degree of awareness of . . . probable falsity,

id. (quoting Garrison v. Louisiana, 370 U.S. 64, 74 (1964)), or that the defendant

“entertained serious doubts as to the veracity of the published account,” Michel v. NYP

Holdings, Inc., 816 F.3d 686, 703 (11th Cir. 2016) (citing St. Amant, 390 U.S. at 731).

The high bar for alleging actual malice is aptly illustrated by what the Supreme

Court has said actual malice is not. First, “reckless disregard” is not measured by an

objective test; “the beliefs or actions of a reasonable person are irrelevant.” Michel,

816 F.3d at 702–03 (citing St. Amant, 390 U.S. at 731). The test is subjective and asks

“whether the defendant, instead of acting in good faith, actually entertained serious

doubts as to the veracity of the published account, or was highly aware that the account

was probably false.” Id. at 703 (citing St. Amant, 390 U.S. at 731); see also St. Amant,

390 U.S. at 731 (rejecting “a rule that publishers must satisfy the standard of the

reasonable man or the prudent publisher” and concluding that the test for measuring

“reckless disregard” is not “whether a reasonably prudent man would have published,

or would have investigated before publishing”).

Second, the Supreme Court has said that actual malice “should not be confused

with the concept of malice as an evil intent or a motive arising from spite or ill will.”

Masson v. New Yorker Mag., Inc., 501 U.S. 496, 500 (1991); see also Harte-Hanks

Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667 n.7 (1989) (“The phrase ‘actual

malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill

will.” (citation omitted)). Third, “the fact that the defendant published the defamatory

material in order to increase its profits” does not “suffice to prove actual malice.” Id.

at 667. As the Court recognized in Harte-Hanks, “The allegedly defamatory statements

at issue in the New York Times case were themselves published as part of a paid

advertisement.” Id. “If a profit motive could somehow strip communications of the

otherwise available constitutional protection,” the New York Times decision “would be

little more than” an “empty vessel[].” Id.

Fourth, “[t]he mere existence of a false statement does not, on its own,

demonstrate [a defendant’s] knowledge of its falsity.” Edward Lewis Tobinick, MD v.

Novella, 848 F.3d 935, 946 (11th Cir. 2017). “There must be sufficient evidence to

permit the conclusion that the defendant in fact entertained serious doubts as to the

truth of his publication. Publishing with such doubts shows reckless disregard for truth

or falsity and demonstrates actual malice.” St. Amant, 390 U.S. at 731.

Fifth, “[a]ctual malice requires more than a departure from reasonable

journalistic standards.” Michel, 816 F.3d at 703 (citation omitted); see also Harte-

Hanks, 491 U.S. at 665 (“[A] public figure plaintiff must prove more than an extreme

departure from professional standards” to show “actual malice.”). “Thus, a failure to

investigate, standing on its own, does not indicate the presence of actual malice.”

Michel, 816 F.3d at 703. “Rather, there must be some showing that the defendant

purposefully avoided further investigation with the intent to avoid the truth.” Id.

The foregoing illustrates how difficult it is for a public figure to establish actual

malice. But the barrier is not impenetrable. In Herbert v. Lando, the Supreme Court

rejected a rule in libel cases that would have prevented a plaintiff from inquiring into a

defendant’s editorial processes because it would have “substantially enhance[d] the

burden of proving actual malice.” 441 U.S. 153, 169 (1979). There was no precedent

for imposing a “First Amendment restriction on the sources from which the plaintiff

could obtain the necessary evidence to prove the critical elements of his cause of action.

On the contrary, New York Times and its progeny made it essential to proving liability

that the plaintiff focus on the conduct and state of mind of the defendant.” Id. at 160.

In Herbert, the Supreme Court recognized that, in a libel action, a plaintiff must be able

to discover all state of mind evidence, both direct and indirect, “unless liability is to be

completely foreclosed.” Id. The Court reiterated that “[s]preading false information

in and of itself carries no First Amendment credentials,” id. at 171, and that an

“individual’s interest in his reputation is also a basic concern” under the laws of

defamation, id. at 169. As in all recognized causes of action, a defamation plaintiff

finds the courthouse doors open, subject to being closed, not vice versa.

Later, in Harte-Hanks, the Court recognized the evidentiary significance of state

of mind evidence for proving actual malice. 491 U.S. at 668–69. It concluded that

evidence of a newspaper’s motive and deviation from accepted journalistic standards

aided a finding of a reckless disregard of truth or falsity. Id. The Court explained that,

while the evidence could not alone support an actual malice finding, “it cannot be said

that evidence concerning motive or care never bears any relation to the actual malice

inquiry.” Id. at 668. And, “[a]lthough failure to investigate will not alone support a

finding of actual malice, the purposeful avoidance of the truth is in a different

category.” Id. at 692 (internal citation omitted). Purposeful avoidance of the truth can

be “a product of a deliberate decision not to acquire knowledge of facts that might

confirm the probable falsity.” Id.

Finally, the allegations bearing on actual malice are considered cumulatively in

the context of the publication as a whole. See id. at 688 (holding that a “court must

consider the factual record in full” to determine actual malice); see also Hunt v. Liberty

Lobby, 720 F.2d 631, 646 (11th Cir. 1983) (considering the “sum total of the inferences

of actual malice”).

The Eleventh Circuit recently addressed the actual malice test in a different

lawsuit brought against SPLC. See Coral Ridge, 6 F.4th at 1247. In Coral Ridge, the

plaintiff—a Christian ministry corporation—landed on SPLC’s Hate Map as a hate

group that was identified as anti-LGBTQ. Id. at 1251. The plaintiff sued SPLC for

defamation, and the district court dismissed for failure to state a claim. Id. On appeal,

the Eleventh Circuit affirmed the Rule 12(b)(6) dismissal on the narrow ground that

the plaintiff had “failed to adequately plead actual malice.” Id. at 1252. It concluded,

first, that the allegations did not “give rise to a reasonable inference that SPLC actually

entertained serious doubts as to the veracity of its hate group definition and that

definition’s application to Coral Ridge.” Id. (quotation marks and citation omitted). It

explained:

Coral Ridge does not plead any facts that would allow us to infer that

SPLC doubted the veracity of its own definition of the term [“hate

group”]. Moreover, the complaint states that SPLC publicly disseminates

its own definition of a hate group on its website; given that, it is hard to

see how SPLC’s use of the term would be misleading. Regardless of the

commonly understood meaning of hate group, and regardless of whether

SPLC’s definition is the same, the complaint did not present any factual

allegations that would allow us to infer that SPLC’s subjective state of

mind was sufficiently culpable.

Id. at 1252–53. Second, the Eleventh Circuit concluded that the plaintiff did not

sufficiently plead that “SPLC was highly aware that the definition [of hate group] and

its application was probably false.” Id. at 1252 (quotation marks and citation omitted).

It explained that the “bare-bone allegations” that the plaintiff “‘has never attacked or

maligned anyone on the basis of engaging in homosexual conduct’ and that ‘SPLC’s

conduct, in and of itself, would have created a high degree of awareness of the probable

falsity of SPLC’s declaration’” were “insufficient to show that SPLC doubted the truth

of its designation.” Id. at 1253 (citing Michel, 816 F.3d at 703).

Third, the Eleventh Circuit noted that the plaintiff’s allegations that SPLC

“intended to harm its reputation” and to “‘completely destroy’” it also could “not give

rise to a reasonable inference that SPLC seriously doubted the accuracy of its

designation” of the plaintiff as a hate group. Id. at 1253 n.8. These allegations were

insufficient because “the actual malice standard is not about whether the speaker had

evil intent or a motive arising from ill will; it is about whether the speaker subjectively

doubts the truth of the publication.” Id. (citation omitted).

Here, Coral Ridge helps frame the issues, but the outcome is different. The

issues are whether Plaintiffs have alleged sufficient facts that give rise to a reasonable

inference (1) that SPLC “actually entertained serious doubts as to the veracity” of its

designations of DIS as an anti-immigrant hate group under its definition of that term or

(2) that SPLC was “highly aware” that its designation of DIS as an anti-immigrant hate

group was “probably false.” Id. at 1252 (citation omitted). Plaintiffs have plausibly

pleaded actual malice for their defamation claims.

As precedent dictates, the court must begin by casting aside those portions of the

Complaint where DIS has “alleged in a purely conclusory manner that [SPLC] acted

‘with actual malice’ in publishing the Hate Map” and the Intelligence Report. Coral

Ridge, 6 F.4th at 1252. Conclusory allegations “amount to threadbare recitals of the

elements of a cause of action, which are insufficient to state a claim.” Id. (citations

omitted).

Hence, allegations, such as those that “SPLC acted with malice in publishing

libelous material” (Doc. # 1 ¶¶ 59, 64), that SPLC “fail[ed] to conduct any meaningful

fact finding” in its determination that DIS is a “hate group” (Doc. # 1 ¶ 44), or that

SPLC “knew Plaintiff DIS did not meet its own definition of ‘hate group’ and

maliciously published the designation anyway” (Doc. # 1 ¶ 50), are conclusory or

precatory and set aside for the present analysis. These conclusory allegations may

serve as introductory or summary facts, but that depends on whether they are left

hanging in thin air or are braced with other facts.

Plaintiffs argue that other allegations provide a plausible basis for inferring

SPLC’s actual malice in characterizing DIS as an anti-immigrant hate group. They

point to allegations showing favorable information SPLC knew about DIS but

deliberately ignored in ranking DIS as an anti-immigrant hate group, inadequacies in

SPLC’s investigation, SPLC’s motives as a political opponent of DIS on immigration

laws, and a “nexus between the timing of SPLC’s defamatory statements and its

lobbying activities.” (Doc. # 18 at 29–32; Doc. # 1 ¶¶ 35, 40–44.) They also point to

SPLC’s decision to classify DIS as an anti-immigrant hate group based on the same

information SPLC possessed seven years earlier when it affirmatively said that DIS did

not meet its criteria as a hate group. (Doc. # 18 at 30.) While none of these allegations

would suffice on their own to show actual malice, cumulatively, Plaintiffs’ claims are

plausible.

It is assumed, for present purposes, that SPLC did not doubt the veracity of its

own definition of an anti-immigrant hate group. (Doc. # 1 ¶ 27 (setting forth SPLC’s

definition of “anti-immigrant hate groups,” which are groups that “target only”

immigrants and that “usually argu[e] that immigrants are unable to assimilate, have a

lower intellectual capacity than white people, bring disease[s] or are inherently more

criminal”).) The definition focuses on a group’s hate toward immigrants, but it does

not define the term “immigrant.” However, the term “immigrant” has a defined

meaning under federal law. “The term ‘immigrant’ means every alien except an alien

who is within one of the [enumerated statutory] classes of nonimmigrant aliens.”

8 U.S.C. § 1101(a)(15). “The term ‘alien’ means any person not a citizen or national

of the United States.” Id. § 1101(a)(3). So, an “immigrant” is “[a]ny person lawfully

in the United States who is not a U.S. citizen, U.S. national, or person admitted under

a nonimmigrant category as defined by the INA Section 101(a)(15).” See

https://www.dhs.gov/immigration-statistics/reporting-terminology-definitions (last

visited Apr. 18, 2023) (defining “immigrant”) (emphasis added). In short, under

federal law, an immigrant is a person who has a lawful right to be in the United States.

It is reasonable to infer that SPLC’s attorneys, who encompass some of the brightest

legal minds in the country, know the federal definition of “immigrant.”

A plausible inference is that, in categorizing DIS as an anti-immigrant hate

group, SPLC pegged DIS as an entity that hates non-citizens (or nationals) who are

lawfully in the United States and hates immigrants who have become citizens. The

Complaint’s facts, which must be construed in the light most favorable to Plaintiffs,

indicate that SPLC knew otherwise or purposefully avoided “knowledge of facts that

might confirm the probable falsity” of its categorization of DIS as an anti-immigrant

hate group. Harte-Hanks, 491 U.S. at 692.

As alleged, SPLC knew at the time of DIS’s hate-group designations that Mr.

King’s adoptive sister is a legal immigrant, that the members of DIS’s Board of

Advisors include “legal immigrants,” and that the “consistent unwavering position of

[DIS] has been to oppose illegal immigration.” (Doc. # 1 ¶ 35; see also Doc. # 1 ¶ 42.)

The composition of DIS’s board—including immigrants—is relevant, contrary to

SPLC’s argument. (Doc. # 10 at 45.) These facts show the presence and inclusion, not

exclusion, of immigrants in DIS’s core governance. The Complaint further alleges that

SPLC “knew of numerous . . . examples in the public record,” including DIS’s blog on

its website, a publicly available email list, and published opinion pieces, where” Mr.

King has conveyed DIS’s position that DIS is “opposed to illegal immigration and in

favor of enforcement of immigration laws,” and these sources do not espouse an “anti-

immigration” position. (Doc. # 1 ¶ 43 & n.11.) At the very least, these allegations

suggest that SPLC turned a blind eye to these facts.

Second, the allegations of motive, although not determinative of the actual

malice inquiry, have enough heft to warrant further probing via discovery. The

Complaint alleges that in 2011, Beirich publicly proclaimed that DIS’s activities

focused on legislative advocacy and that DIS did not meet the SPLC’s definition of

“hate group.” (Doc. # 1 ¶ 17).6 However, even though DIS has not changed its focus

or activities in any material way since 2011 (Doc. # 1 ¶¶ 12, 19), Beirich decided to

“take a new look” at DIS in 2017 (Doc. # 1 ¶ 15). This “new look” occurred around

the same time that SPLC was registering lobbyists to work against a pro-enforcement

immigration bill pending in the Georgia General Assembly, a bill that DIS was

advocating for passage. (Doc. # 1 ¶ 24.) The Complaint’s theory is that Beirich

designated DIS as a hate group in 2018, around the same time that SPLC registered

lobbyists to fight against a Georgia immigration bill, “as a legislative lobbying

strategy.” (Doc. # 1 ¶¶ 24–25, 53.) According to the allegations, by destroying DIS’s

reputation, SPLC would likely have more success in its lobbying efforts before the

Georgia General Assembly for the defeat of the pro-enforcement bill. (Doc. # 1 ¶ 53.)

6 “When actual malice in making a defamatory statement is at issue, the critical question is

the state of mind of those responsible for the publication.” Palin v. New York Times Co., 940 F.3d

804, 810 (2d Cir. 2019). Here, because the Complaint identifies SPLC’s employee, Heidi Beirich, as

the one responsible for DIS’s hate group designations (Doc. # 1 ¶¶ 15, 17–18), it presently is her state

of mind that is relevant for assessing actual malice.

SPLC’s designation of DIS as a hate group allowed SPLC to “claim that the number of

hate groups has increased” and thus to ask for more money from donors “to pursue its

mission.” (Doc. # 1 ¶ 54.) A “plaintiff is entitled to prove the defendant’s state of

mind through circumstantial evidence.” Harte-Hanks, 491 U.S. at 668 (citing Herbert,

441 U.S. at 160). The combined allegations concerning the timing of the hate-group

designation and the lack of change in the way DIS ran its organization raise a plausible

inference that SPLC designated DIS as a hate group as part of a lobbying strategy to

disable a formidable adversary. This motive is circumstantially relevant to whether

SPLC’s designation of DIS as a hate group was published with reckless disregard as to

its truth.

Second, the Complaint raises plausible questions as to the accuracy of Beirich’s

statement to the press that SPLC learned for the first time in 2017 about DIS’s “ties to

US Inc.” and whether this was the impetus for SPLC’s taking a new look at DIS as a

possible hate group. (Doc. # 1 ¶ 15.) The association between DIS and US Inc. began

in 2007 (as SPLC reported in 2018). (See Doc. # 1 ¶ 42 n.10 (citing

https://www.splcenter.org/fighting-hate/extremist-files/group/dustin-inman-society).)

Against the backdrop of SPLC’s self-touted “premiere” expertise in

investigating hate groups and the myriad investigative tools available to SPLC (Doc.

# 1 ¶ 37), the allegations raise a plausible inference that SPLC knew about US Inc. and

DIS’s relationship in 2011 when Beirich publicly proclaimed that DIS did not fit

SPLC’s definition of a hate group (Doc. # 1 ¶ 17). That plausible inference is

strengthened when added to Plaintiffs’ allegations that around the same time that SPLC

first designated DIS as a hate group, SPLC “registered lobbyists to work against a pro-

enforcement bill pending in the Georgia General Assembly,” a bill that DIS was

supporting. (Doc. # 1 ¶ 24.) When properly viewed in DIS’s favor, a reasonable

factfinder could conclude that Beirich’s public statement in 2017 was not true. (Doc.

# 1 ¶ 15.) The allegations are sufficient to “raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555, namely that SPLC knew that it was false to assert

that DIS was an anti-immigrant hate group.

Third, Plaintiffs allege that SPLC ignored “examples in the public record,” such

as DIS’s statements on its website, where Mr. King has “repeatedly articulated a

position that is opposed to illegal immigration,” not to lawful immigration. (Doc. # 1

¶ 43.) For example, take DIS’s mission statement which Plaintiffs say has not changed

since 2005: “Our unequivocal mission is to end illegal immigration, illegal

employment, the illegal administration and granting of Public Benefits and services

through the equal application of existing laws.” (Doc. # 18 at 19; see also Doc. # 1

¶ 11.) None of those goals is included in SPLC’s web page profile of DIS. (Doc. # 1

¶ 42 n.10; Doc. # 10-1 ¶ 5 (citing hyperlinks for accessing the web page profile on

DIS).) Hence, SPLC’s postings do not include public information about DIS that is

contrary to the profile’s conclusion that DIS is an anti-immigrant hate group. See

Michel, 816 F.3d at 703 (“[W]here the publisher includes information contrary to the

general conclusions reached in an article, that showing tends to undermine the claims

of malice.” (citation omitted)). That SPLC holds itself out as an expert on hate groups,

yet ignored “examples in the public record” where Mr. King had “repeatedly articulated

a position that is opposed to illegal immigration,” not lawful immigration, (Doc. # 1

¶¶ 43, 37), lends some support to DIS’s position that SPLC designated DIS as anti-

immigrant hate group with reckless disregard for whether it was true.

Fourth, while SPLC holds itself out as an expert on investigating hate groups,

there are some allegations that plausibly suggest that SPLC did not conduct its usual

rigorous investigation prior to changing its position and calling DIS an anti-immigrant

hate group. While they are not Plaintiffs’ strongest allegations, the Complaint alleges

that SPLC’s web page profile on DIS contained some factual inaccuracies that were

used to support SPLC’s evidence for labeling DIS as an anti-immigrant hate group.

(Doc. # 1 ¶¶ 44–49.) The alleged inaccuracies relate to the date of DIS’s incorporation,

the date Mr. King “bec[a]me interested” in immigration issues, the former name of

DIS, and the identity of one of Mr. King’s former employers. (Doc. # 1 ¶¶ 45–48.)

The cumulative allegations raise a plausible inference that, while SPLC had

thoroughly investigated DIS over the years and concluded that it did not meet SPLC’s

definition of an anti-immigrant hate group, it had a “high degree of awareness” that its

designation of DIS as a hate group was probably false, or at the very least, that SPLC

must have “entertained serious doubts as to the truth of [its] publication.” Harte-

Hanks, 491 U.S. at 667 (citation and internal quotation marks omitted). Discovery may

prove otherwise, but for now the allegations permit the inference.

In the end, DIS meets its burden of pleading allegations, that, construed in the

light most favorable to Plaintiffs, could enable a reasonable jury to conclude that SPLC

either knew, or was reckless in not knowing, that its designation of DIS as an anti-

immigrant hate group would carry a false, defamatory meaning.

2. Hate Group Designation

At this stage, for two reasons, the court declines to address whether SPLC’s more

general “hate group” designation is provable as false or whether it is sufficiently

alleged to have been published with actual malice. (See, e.g., Doc. # 1 ¶ 62.) First, the

parties’ arguments focus on the “anti-immigrant hate group” designation. (See, e.g.,

Doc. # 10 at 15, 21–22; Doc. # 19 at 11; see generally Doc. # 18.) Second, while the

phrase “hate group” plausibly is “reasonably capable of a defamatory meaning,” in that

it can injure reputations, Harris v. Sch. Ann. Publ’g. Co., 466 So. 2d 963, 964 (Ala.

1985), there is a “debate about whether the term hate group is definable in such a way

that it is provable as false.”7 Coral Ridge, 6 F.4th at 1252 n.7. On this record, because

7 SPLC relies on the district court’s opinion in Coral Ridge. In a thorough analysis on SPLC’s

Rule 12(b)(6) motion to dismiss, the district court found that SPLC’s hate group designation of Coral

Ridge was not “provable as false” and thus had First Amendment protection from a defamation claim.

406 F. Supp. 3d at 1275–78. On appeal, the Eleventh Circuit declined to address the district court’s

comprehensive analysis or to decide whether the term hate group as applied to Coral Ridge was

“sufficiently factual as to be proven true or false.” Coral Ridge, 6 F.4th at 1252 n.7. Instead, it

Plaintiffs have sufficiently alleged at least one of their defamation claims, the court

finds that the best course of action is to defer resolution of the merits of the hate group

designation until summary judgment under Federal Rule of Civil Procedure 12(i)

(permitting deferral of a 12(b)(6) motion until trial). See AcryliCon USA, LLC v. Silikal

GmbH, 985 F.3d 1350, 1364 (11th Cir. 2021) (“Rule 12(i) affords the district court

discretion on how to proceed at this stage.”). SPLC may raise any arguments as to the

hate group designation claim, after discovery, at the summary judgment stage.

V. CONCLUSION

Plaintiffs have “nudged” their defamation claims—premised on SPLC’s

designation of DIS as an “anti-immigrant hate group”—“across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. Other claims and issues are

deferred until summary judgment, as discussed. The reasons set out in this opinion

explain why the SPLC’s motion to dismiss was denied.

DONE this 24th day of April, 2023.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

affirmed on a different ground (namely, the absence of allegations of actual malice), but noted that

there was a “fair debate about whether the term hate group is definable in such a way that it is provable

as false”—a matter of debate complicated by SPLC’s posting of its own definition on its website. Id.