Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc. et al

Filing 68

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/19/2019. (wcl, )

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 1 of 141

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CORAL RIDGE MINISTRIES
MEDIA, INC., d/b/a D.
James Kennedy Ministries,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AMAZON.COM, INC., et al.,
Defendants.

CIVIL ACTION NO.
2:17cv566-MHT
(WO)

OPINION
Plaintiff
(“Coral

Coral

Ridge”)

defendants:
(“SPLC”),

the

Ridge

filed

this

Southern

Amazon.com,

Ministries
lawsuit

Poverty

Inc.

Law

because

largely
of

its

on

Coral

religious

against
Center,

(“Amazon”),

AmazonSmile Foundation (“AmazonSmile”).
based

Media,

Ridge’s

and

three
Inc.
the

The lawsuit is

allegations

opposition

Inc.

to

that,

homosexual

conduct, SPLC has designated it as a “hate group” and
that,

because

of

this

designation,

Amazon

and

AmazonSmile have excluded it from receiving donations
through the AmazonSmile charitable-giving program.

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 2 of 141

Coral Ridge has three claims against SPLC: a state
claim that its “hate group” designation is defamatory
and

federal

advertising
Coral

Ridge

claims
under

for

the

has

a

false

Lanham

single

association
Act,

claim

15

and

U.S.C.

against

false

§ 1125.

the

Amazon

defendants: a federal claim that they excluded it from
the

AmazonSmile

charitable-giving

program

based

on

religion, in violation of Title II of the Civil Rights
Act of 1964, 42 U.S.C. § 2000a et seq.1
This
States

lawsuit
Magistrate

is

before
Judge’s

the

court

on

the

United

to

grant

recommendation

SPLC’s and the Amazon defendants’ motions to dismiss
filed pursuant to Rule 12(b)(6) of the Federal Rules on
Civil

Procedure.

After

an

independent

and

de

novo

review of the record, and for reasons that follow, the

1. Coral Ridge also asserts a state claim of
negligence against the Amazon defendants.
However, as
Coral Ridge concedes, see Objection to R&R (doc. no.
58) at 6, the negligence claim hinges on the Title II
claim, given that the alleged duty breached is Title
II’s anti-discrimination obligation, see Am. Compl.
(doc. no. 40) at ¶ 179.
Because the court finds no
violation of Title II, the negligence claim fails by
extension and is not discussed separately.
2

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 3 of 141

court

overrules

Coral

Ridge’s

objections

to

the

recommendation and adopts the recommendation that this
case should be dismissed in its entirety, albeit for
reasons,

in

some

instances,

different

from

the

magistrate judge’s.

I.
The

court

has

JURISDICTION

jurisdiction

over

Coral

Ridge’s

federal claims pursuant to 28 U.S.C. § 1331 (federal
question), 42 U.S.C. § 2000a-6(a) (Title II), and 15
U.S.C. § 1121(a) (Lanham Act); and over its state claim
pursuant

to

28

U.S.C.

§ 1367

(supplemental)

and

28

U.S.C. § 1332 (diversity).

II.

MOTION-TO-DISMISS STANDARD

“To survive a Rule 12(b)(6) motion to dismiss, a
complaint must plead ‘enough facts to state a claim to
relief that is plausible on its face.’”
Holdings,

Inc.,

816

F.3d

686,

694

Michel v. NYP

(11th

Cir.

2016)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

3

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 4 of 141

570 (2007)).

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“The allegations in the

complaint must be accepted as true and construed in the
light most favorable to the plaintiff.”

Michel, 816

F.3d at 694.
Crucially, however, the court need not accept as
true “conclusory allegations, unwarranted deductions of
facts

or

legal

conclusions

masquerading

as

facts.”

Oxford Asset Mgmt., Ltd., v. Jaharis, 297 F.3d. 1182,
1188 (11th Cir. 2002); see also Roberts v. Ala. Dept.
of Youth Servs., 2013 WL 4046383, at *2 (M.D. Ala. Aug.
9, 2013) (Thompson, J.) (“[G]eneralizations, conclusory
allegations, blanket statements, and implications will
not”

allow

dismiss).
express

the

complaint

Conclusory
“a

factual

to

survive

allegations

inference

4

are

without

a

motion

to

those

that

stating

the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 5 of 141

underlying

facts

on

which

the

inference

is

based.”

Conclusory, Black’s Law Dictionary (11th ed. 2019).
As

recognized

by

the

Eleventh

Circuit

Court

of

Appeals, the “application of the plausibility pleading
standard makes particular sense when examining public
figure defamation suits” such as this one, given that
“there is a powerful interest in ensuring that free
speech

is

not

unduly

burdened

by

the

necessity

of

defending against expensive yet groundless litigation.”
Michel, 816 F.3d at 702.

III.
The
light

allegations

most

main

television,
Jesus

of

favorable

following facts.
whose

BACKGROUND FACTS
the

to

Coral

Christ,”

in

the

establish

Ridge,

taken

the

Coral Ridge is a Christian ministry

activities
and

complaint,

include

otherwise
as

well

broadcasting

spreading,

as

(doc. no. 40) at ¶¶ 32-39.

the

fundraising.

“Gospel
Am.

via
of

Compl.

In addition to being a

Christian ministry, it is, by its own account, a media

5

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 6 of 141

corporation, see id., as is also evident from its name,
Coral

Ridge

Ministries

Media,

Inc.

Its

vision

statement, included in its bylaws, is “to communicate
the Gospel ... and a biblically informed view of the
world, using all available media.”

Id. at ¶ 33.

Its

“mission” includes “proclaim[ing] the Gospel upon which
this Nation was founded.”
Coral

Ridge

Kennedy,

an

that

founded

American

broadcaster,
program,

was

Id. at ¶ 38.

and

“The

it

Coral

Transform”),

in

Ridge

a

Hour”

“was

David

James

evangelist,

pastor,

produced

which

1974

by

and

weekly
(now

television

called

carried

on

“Truths

television

networks and syndicated on numerous other stations with
a

peak

audience

countries.”

of

three

Id. at ¶ 31-32.

million

Ridge

continues

in

200

Kennedy also had a daily

radio show that ran from 1984 to 2012.
Coral

viewers

to

Id. at ¶ 32.

broadcast

Kennedy’s

“Truths that Transform” on television. Id. at ¶¶ 35,
39.

It espouses “biblical morals and principles” on

homosexuality and marriage.

6

Id. at ¶ 58.

It also

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 7 of 141

opposes same-sex marriage and the “homosexual agenda”
based on its religious beliefs.
Coral
conduct,”

Ridge
but

alleges

“has

Id. at ¶ 82.

that

nothing

it

but

engage in homosexual conduct.”
that

its

“position

intertwined
theology.”

and

on

LGBT

connected

Id. at ¶ 155.

“opposes
love

for

homosexual
people

Id. at ¶ 61.
issues

to

the

is

who

It says

inextricably

[its]

religious

It views homosexual conduct

as “lawless,” “an abomination,” “vile,” and “shameful.”
Id. at ¶¶ 155, 175 (citing and quoting Bible verses).
Coral Ridge not only admits that “the Ministry has been
vocal about its position on homosexuality because it
believes the Bible speaks clearly about God’s intent
for

marriage

and

sexuality,”

it

also

argues

that

“speaking out on these issues is necessary to fulfill
the Ministry’s stated purpose of ’lovingly engag[ing]
the culture with the heart and mind of Christ.’” Pl.’s
Resp. to SPLC’s Mot. to Dismiss (doc. no. 51) at 10
(quoting Am. Compl. (doc. no. 40) at ¶ 34(d)).

7

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 8 of 141

SPLC

is

range

of

lists

a

groups

nonprofit

activities,
that

disseminates

it

is

located

on

a

designates

including Coral Ridge.
Map

organization

that,

“Hate

as

its

website,

Map”

“hate

Id. at ¶¶ 20-21.
and

among

a

that

groups,”

SPLC’s Hate

defines

“hate

groups” as groups that “have beliefs or practices that
malign or attack an entire class of people, typically
for

their

SPLC

has

efforts

immutable

characteristics.”

disseminated

and

in

its

the

Hate

reports,

other informational services.

Map

Id.
in

training

at

¶ 59.

fundraising

programs,

and

Id. at ¶¶ 120, 121, 132.

SPLC designated Coral Ridge as a hate group because
of

its

espousal

sexuality

and

of

biblical

marriage--that

views
is,

religious beliefs on those topics.

concerning
because

of

human
its

Id. at ¶¶ 57-61;

see also id. at ¶¶ 154-55.
Amazon is the largest internet-based retailer in
the

world

by

total

See

id.

at

¶ 5.

sales

and

market

AmazonSmile

corporation affiliated with Amazon.

8

is

capitalization.
a

tax-exempt

See id. at ¶¶ 14,

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 9 of 141

41.

Amazon

and

AmazonSmile

operate

the

AmazonSmile

program, whereby they donate 0.5 % of the price of a
purchase

made

on

smile.amazon.com

to

an

eligible

charitable organization selected by the customer.
id.

at

¶¶ 42-43.

available

for

The

vast

purchase

majority

through

of

See

the
are

Amazon

items
also

available for purchase through the AmazonSmile program
at smile.amazon.com.

See id. at ¶ 15.

To be selected by a customer to receive donations
through the AmazonSmile program, an entity must satisfy
the

program’s

¶ 44.

eligibility

requirements.

See

id.

at

These requirements include, among others, that

the entity is “a [26 U.S.C.] § 501(c)(3) ... public
charitable organization” located in the United States.
Id.

Furthermore, the organization cannot “engage in,

support,

encourage,

or

promote

intolerance,

hate,

terrorism, violence, money laundering, or other illegal
activities.”
designated

Id.
by

[the]

Notably,
SPLC

9

“[e]ntities
as

hate

that

groups

are
are

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 10 of 141

automatically ineligible” to receive donations through
the AmazonSmile program.

Id. at ¶ 23.

Coral Ridge alleges that it attempted to register
to receive donations through the AmazonSmile program,
see id. at ¶ 51, but that it was prohibited from doing
so because SPLC had designated it as a “hate group,”
id. at ¶ 24, 53.

IV.

DISCUSSION

A. Defamation Claim Against SPLC
Coral

Ridge

alleges

that

SPLC

defamed

it

by

designating it as a “hate group.”2

2. Coral Ridge alleges defamation “pursuant to
Alabama common law.”
Am. Compl. (doc. no. 40) at 1.
Alabama’s lex loci delicti choice-of-law approach might
actually dictate the application of Florida defamation
law to this multi-state defamation action, given that
Coral Ridge is a Florida corporation with its principal
place of business there. See, e.g., Hatfill v. Foster,
415 F. Supp. 2d 353, 364-65 (S.D.N.Y. 2006) (McMahon,
J.).
Nevertheless, SPLC does not challenge the
application of Alabama law.
Therefore, “[b]ecause no
party has challenged the choice of” Alabama “libel law,
all are deemed to have consented to its application.”
Michel, 816 F.3d at 695 (internal quotation marks
omitted).
In any event, even if Florida law applied,
the outcome here would be the same, for, as explained
10

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 11 of 141

Because “[a]t the heart of the First Amendment is
the recognition of the fundamental importance of the
free flow of ideas and opinions on matters of public
interest and concern,” Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485, 503–504 (1984), a
‘public
plausibly

figure’
allege

statement--here,

asserting
that
the

a

defamation

the

purported

“Anti-LGBT

claim

must

defamatory

hate

group”

designation3--was (1) provable as false and (2) actually

below,
the
defamation
constitutional grounds.

claim

fails

on

federal

3. In its response to the motion to dismiss, Coral
Ridge argues that the defamatory nature of the
“Anti-LGBT” designation is not before the court: only
SPLC’s “hate group” designation is the focus on the
defamation claim.
See Pl.’s Resp. to SPLC’s Mot. to
Dismiss (doc. no. 51) at 4-5.
While Coral Ridge has
chosen not to contest the “Anti-LGBT” part of the “hate
group” designation, this does mean that court should
ignore it in assessing whether SPLC’s statements were
defamatory.
The allegations of the amended complaint
make clear that the “Anti-LGBT” designation is an
inseparable part of SPLC’s application of the “hate
group” label to Coral Ridge.
See Am. Compl. at ¶ 119
(“SPLC published [Coral Ridge’s] trademarked name ‘D.
James Kennedy Ministries’ on its Hate Map, listing it
as an Anti LGBT hate group.”); id. at ¶ 56 (“SPLC ...
has labelled [Coral Ridge] as one of AmazonSmiles’
prohibited types of organizations with the following
11

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 12 of 141

false,

and

(3)

that

SPLC

made

the

statement

with

“actual malice,” that is, “with knowledge that it was
false

or

with

false or not.”4
254,

280

reckless

disregard

of

whether

it

was

New York Times v. Sullivan, 376 U.S.

(1964).

Whether

this

heightened

legal

standard applies here depends on whether Coral Ridge is
a public figure--and not just any one.
A public figure is defined by the “notoriety of
... [its] achievements or the vigor and success with

entry on SPLC’s ‘Hate Map’: D. James Kennedy Ministries
(formerly Truth in Action) Fort Lauderdale, Florida
ANTI LGBT.”); id. at ¶ 57 (alleging that Coral Ridge’s
entry on the Hate Map can be located by sorting for
“Anti LGBT” organizations, then clicking on a symbol
over Miami, Florida).
SPLC has made clear that it
views Coral Ridge as a “hate group” with respect to gay
people--not, for example, black people or Muslims.
Thus, the court rejects Coral Ridge’s argument that it
should ignore the “Anti-LGBT” part of the “hate group”
designation in assessing the legal claims.
4. The Supreme Court has explicitly held that the
plaintiff bears the burden of proving falsity.
See
Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69,
775 (1986).
By implication, the burden as to the
provable-as-false requirement must also be on the
plaintiff, given that being provable as false is a
necessary condition for meeting the burden of proving
falsity.

12

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 13 of 141

which
v.

... [it] seek[s] the public's attention.”

Robert

Welch,

Inc., 418

U.S.

323,

342

Gertz
(1974).

“[P]ublic figures usually enjoy significantly greater
access to the channels of effective communication and
hence have a more realistic opportunity to counteract
false

statements

enjoy.”
and

Id. at 323.

their

effort

than

to

Proxmire,

views

individuals

normally

Public figures thrust themselves

into

influence
443

private

U.S.

the

public

others.
111,

controversy
See

in

Hutchinson

135-36

(1979)

an
v.

(finding

scientist was not a public figure in part because he
“did

not

thrust

himself

or

his

views

into

public

controversy to influence others”).
Coral Ridge concedes it is a public figure, and
this

concession

makes

sense,

given

its

focus

on

broadcasting its viewpoints through the media and the
global reach of its television program.
(doc.

no.

40)

at

32-33,

35,

13

39.

See Am. Compl.

Consequently,

to

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 14 of 141

succeed on this defamation claim against SPLC, it must
satisfy the First Amendment heightened standard.5
To
these

decide
three

whether

Coral

constitutional

Ridge

plausibly

requirements

pleads

for

its

defamation claim, the court must first determine the
meaning (or meanings) of the term “hate group.”

For,

without determining the meaning of “hate group,” it is
impossible to assess whether SPLC’s labeling of Coral
Ridge as “Anti-LGBT hate group” was provable as false,
actually false, and made with actual malice.

Thus, the

court will turn to Coral Ridge’s amended complaint to
determine--under

the

motion-to-dismiss

standard--the

meaning of the term “hate group” for an average reader.
See St. Surin v. Virgin Islands Daily News, Inc., 21
5. Thus, of course, this standard likely would not
apply if SPLC had called an ordinary church or ministry
a “hate group.”
Because, unlike the average church,
Coral Ridge is, as stated, a public, figure, a media
corporation
that
has
successfully
sought
public
influence and broadcast its views to millions through
its weekly television program.
Compare Hustler
Magazine v. Falwell, 485 U.S. 46, 47 (1988) (applying
New York Times standard to Jerry Falwell, “a nationally
known minister who has been active as a commentator on
politics and public affairs,” and thus a public
figure).
14

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 15 of 141

F.3d 1309, 1317 (3d Cir. 1994) (“In defamation actions,
words should be construed as they would be understood
by the average reader.”).

1. Meaning of “Hate Group”
As stated above, the tenet that a court must accept
as true the allegations in a complaint does not apply
to conclusory statements.
Therefore,

in

pleading

See Iqbal, 556 U.S. at 678.

the

meaning

of

“hate

group,”

Coral Ridge cannot rely on allegations that express “a
factual inference without stating the underlying facts
on which the inference is based.” Conclusory, Black’s
Law Dictionary (11th ed. 2019).

As detailed below,

Coral Ridge did just that.

i. Coral Ridge’s Alleged Meaning of “Hate Group”
The amended complaint asserts that, “A hate group
is legally and commonly understood as one that engages
[in]

or

advocates

crime

or

violence

based on their characteristics.”

15

against

others

Am. Compl. (doc. no.

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 16 of 141

40)

at

¶ 91;

definitional

see

also

requirement

id.
that

at

¶ 66.

hate

The

groups

alleged

“engage[]

[in] or advocate[] crime or violence” is central to
Coral Ridge’s claim, since Coral Ridge contends that
its “hate group” designation is false because it “does
not engage in or advocate violence or crime against any
group.”

Id. at ¶ 123; see also id. at ¶¶ 66-69.

In

other words, Coral Ridge’s main falsity argument--and
thus defamation claim--hinges on its allegation that a
required

trait

of

“hate

groups”

is

engaging

in

or

advocating crime or violence.6

6. That the characteristic of engaging in or
advocating crime or violence is a requirement of Coral
Ridge’s alleged “hate group” definition reflects a
plain reading of its pleaded definition.
The amended
complaint says that a hate group is commonly understood
as “one that engages [in] or advocates crime or
violence,” Am. Compl. (doc. no. 40) at ¶ 91; this
categorical formulation expresses that a group must
have that characteristic to qualify.
Moreover,
interpreting the characteristic as a requirement reads
the allegations in the light most favorable to Coral
Ridge.
If the court were to read the alleged
definition as being inclusive of--but not restricted to
groups with that characteristic--then Coral Ridge’s
contention that its designation as a “hate group” is
false because it does not engage in or advocate crime
or violence would automatically fail. Put differently,
16

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 17 of 141

The court need not accept Coral Ridge’s alleged
definition of “hate group” because it is a conclusory
allegation.

Critically, Coral Ridge fails to plead any

facts

support

to

its

“generaliz[ed],”

“blanket

statement[]” about the commonly understood meaning of
“hate group.”

Roberts, 2013 WL 4046383, at *2.

It

does

example,

is

not,

for

plead

that

“hate

group”

anywhere defined--whether in a dictionary, or by any
other

source

or

entity--to

advocating violence or crime.

require

engaging

in

or

Coral Ridge thus asserts

“a factual inference”--the commonly understood meaning
of “hate group”--"without stating the underlying facts
on which the inference is based.”

Conclusory, Black’s

Law Dictionary (11th ed. 2019).

The court will not

accept
further
Farms,

Coral

Ridge’s

factual
Inc.,

“naked

assertion[s]

enhancement.”

744

F.3d

702,

Simpson
708

(11th

devoid

v.

of

Sanderson

Cir.

2014)

(quoting Iqbal, 556 U.S. at 678).

Coral Ridge’s alleged lack of that characteristic can
be the basis of falsity only if the “hate group”
definition requires that characteristic.
17

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 18 of 141

If

courts

obligated

to

considering
accept

as

motions
true

to

dismiss

plaintiffs’

were

factually

unsupported definitions of words, concepts, and terms,
it

would

make

Procedure
courts

a

mockery

12(b)(6)’s

to

accept

definitions

of

of

Federal

standard.7

pleading
as

true

words

Rule

plaintiffs’

would

be

of

Civil

Requiring
pleaded

particularly

inappropriate in public-figure defamation suits such as
this

one,

where

“there

is

a

powerful

interest

in

ensuring that free speech is not unduly burdened by the
necessity of defending against expensive yet groundless
litigation.”
Not

only

definition

of

Michel, 816 F.3d at 702.
is

Coral

“hate

Ridge’s

group”

conclusorily

unsupported

by

asserted
any

other

factual allegations; worse yet, it is contradicted by
more specific alleged facts that Coral Ridge pleads,

7. For example, if a plaintiff buyer alleging that
a defendant seller fraudulently misrepresented the
number of apples in a delivery could successfully plead
any definition he wanted of “apples”--such as requiring
that they have seeds made of 24-karat gold--then even
the most frivolous claim could survive a motion to
dismiss.
18

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 19 of 141

cites in its briefing, and asserts to be subject to
judicial notice.8

This court’s “duty to accept the

facts in the complaint as true does not require [it] to
ignore

specific

factual

details

of

the

pleading

favor of general or conclusory allegations.”

in

Griffin

Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06, 1210
(11th

Cir.

2007)

(reversing

denial

of

motions

to

dismiss where “the facts in [plaintiff’s] own complaint
plainly contradict the conclusory allegation” in the
complaint); see also Veney v. Wyche, 293 F.3d 726, 730
(4th

Cir.

“accept
properly

as

2002)
true

subject

(stating

that

allegations
to

judicial

the

that

court

need

contradict

notice”).

not

matters

Here,

Coral

Ridge’s conclusorily alleged and factually unsupported

8. “[I]n ruling on a motion to dismiss courts may
supplement the allegations in a complaint with facts
contained in judicially noticed materials,” without
converting the motion into a summary-judgement motion.
K.T. v. Royal Caribbean Cruises, Ltd., 931 F.3d 1041,
2019 WL 3312530, at *5 (11th Cir. July 24, 2019)
(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)); cf. Bryant v. Avado Brands,
Inc., 187 F.3d 1271, 1278 (11th Cir. 1999).
19

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 20 of 141

definition

does

not

trump

the

concretely

sourced,

specific definitions of “hate group” that it cites.
In its amended complaint and briefing, Coral Ridge
cites

three

sources--other

than

itself

and

SPLC--of

definitions of a “hate group”: (1) judicial opinions,
(2) the Federal Bureau of Investigation (FBI), and (3)
the Anti-Defamation League (ADL).
in

the

case

of

the

judicial

The definitions--or,
opinions,

lack

of

a

definition--of the term “hate group” provided by all of
these

sources

directly

contradict

Coral

Ridge’s

allegation that a “hate group is legally and commonly
understood as one that engages [in] or advocates crime
or violence against others.”

Am. Compl. (doc. no. 40)

at ¶ 91.
To start, the amended complaint cites four judicial
opinions to support its assertion that “the law defines
a hate group as one whose activities include violence
and crime.”

Id. at ¶ 65.

None of the cited opinions

defines the term “hate group,” and two do not even
mention

the

term:

Virginia

20

v.

Black,

538

U.S.

343

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 21 of 141

(2003) (nowhere mentioning term); Capitol Square Review
& Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (nowhere
mentioning term); Powers v. Clark, 2014 WL 6982475, at
*3

n.10

(E.D.

Va.

Dec.

9,

2014)

(Hudson,

J.)

(not

defining term); Doe v. Pittsylvania Cnty., 844 F. Supp.
2d

724,

740

defining

(W.D.

term).

Va.
The

2012)
amended

(Urbanski,

J.)

complaint’s

(not

blanket

assertion that “hate group” is legally defined in a
particular way is therefore contradicted by the more
specific fact that none of the cases cited by Coral
Ridge defines the term.
Furthermore, unlike Coral Ridge’s definition, the
FBI’s and ADL’s definitions of a “hate group” do not
include

a

requirement

that

advocate crime or violence.

the

group

engage

in

or

According to Coral Ridge,

the FBI defines “hate group” as, “An organization whose
primary purpose is to promote animosity, hostility, and
malice against persons of or with a race, religion,
disability, sexual orientation, ethnicity, gender, or
gender identity which differs from that of the members

21

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 22 of 141

or the organization, e.g., the Ku Klux Klan, American
Nazi Party.”
(doc.

no.

51)

Pl.’s Resp. to SPLC’s Mot. to Dismiss
at

5

(quoting

FBI,

Hate

Crime

Data

Collection Guidelines And Training Manual, at 9 (2015),
https://ucr.fbi.gov/hate-crime-data-collectionguidelines-and-training-manual.pdf).9

The ADL defines a

“hate

whose

group”

as

“an

organization

goals

and

activities are primarily or substantially based on a
shared

antipathy

towards

different

people

of

one

races,

ethnicities/nationalities/national

or

more

religions,
origins,

genders,

and/or sexual identities. ... [T]he group itself must
have some hate-based orientation/purpose.”
(quoting

Hate

Id. at 5-6

Group,

ADL,

https://www.adl.org/resources/glossary-terms/hate9. Coral Ridge contends--and SPLC and this court
agree--that the definition contained in the FBI manual
is subject to judicial notice. This court takes notice
of--and considers for purposes of this motion to
dismiss--only the fact that an FBI manual with this
definition exists, but of course takes no notice as to
the veracity of the definition.
See U.S. ex rel.
Osheroff v. Humana Inc., 776 F.3d 805, 811-12, 811 n.4
(11th Cir. 2015).

22

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 23 of 141

group).10

Again,

neither

of

these

definitions

contains the crime or violence requirement.11
In addition to conflicting with the FBI and ADL
definitions, Coral Ridge’s alleged definition of “hate
group” is inconsistent with this court’s “common sense”
understanding of the words “hate” and “group.”

Iqbal,

556 U.S. at 679 (explaining that courts must draw on
their “common sense” in determining whether plaintiffs
10. The court takes judicial notice of the
existence of this ADL definition, which Coral Ridge
cites in its brief.
11. For its part, SPLC defines “hate groups” as
those groups that “have beliefs or practices that
attack or malign an entire class of people, typically
for their immutable characteristics.” Am. Compl. (doc.
no. 40) at ¶ 59.
SPLC’s definition especially
undermines
Coral
Ridge’s
conclusory
allegation
concerning how “hate group” is “commonly understood,”
given that Coral Ridge also pleads that, “[a]s a result
of SPLC’s position as the alleged ‘premier U.S.
nonprofit organization monitoring the activities of
domestic hate groups and other extremists,’ ... SPLC’s
Hate Map [and other ‘hate group’ materials, goods, and
services] reach a large number of people in every state
in the United States and beyond.” Am. Compl. (doc. no.
40) at ¶ 75.
The term “hate group” is less likely to
be
“commonly
understood”
to
necessarily
involve
violence or crime if the widely viewed Hate Map
produced by a “premier” organization monitoring “hate
groups” does not define such groups as necessarily
engaging in or advocating violence or crime.
23

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 24 of 141

meet the plausibility pleading standard).

While the

word “hate” is sometimes associated with violence and
crime,

it

does

not

necessarily

connote

the

two.

Plainly, the word “group” carries no such connotation.
In sum, the court need not accept Coral Ridge’s
blanket contention that a “hate group” is “legally and
commonly

understood

as

one

that

engages

[in]

or

advocates crime or violence against others,” Am. Compl.
(doc.

no.

40)

at

¶ 91,

given

that

it

is

not

only

factually unsupported, but also contradicted by the FBI
and ADL definitions that Coral Ridge cites, as well as
by the court’s common-sense understanding of the words
“hate” and “group.”
Beyond

belying

the

alleged

crime

or

violence

element of the “hate group” definition, the FBI and ADL
definitions also show that the term does not have a
single, “commonly understood” meaning.

This is because

the definitions contain important differences from one
another.
ADL

For example, unlike the FBI definition, the

definition

does

not

24

require

that

the

group

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 25 of 141

“promote” animosity, hostility, malice, antipathy, or
the

like;

under

the

ADL’s

definition,

a

white

supremacist organization is still a “hate group” even
if it keeps to itself.

See Pl.’s Resp. to SPLC’s Mot.

to Dismiss (doc. no. 51) at 5-6.

Further, the FBI

definition requires that a group’s “primary purpose” be
the

promotion

of

its

bigoted

ideas,

while

the

ADL

definition is broader, including those whose “goals and
activities”

are

“substantially

based”

on

a

shared

antipathy towards people of a certain group.
The conclusion that the term “hate group” has no
single, commonly understood meaning is reinforced by
the lack of a definition for the term in dictionaries,
of which the court takes judicial notice.
293

F.3d

at

730

(“Nor

must

we

accept

See Veney,
as

true

allegations that contradict matters properly subject to
judicial notice or by exhibit.)”.

Neither Black’s Law

Dictionary (11th ed. 2019), Merriam-Webster Unabridged

25

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 26 of 141

(online ed.), nor the Oxford English Dictionary (online
ed.), defines the term “hate group.”12

12. Black’s Law Dictionary defines the distinct
term of “hate speech” as follows: “Speech whose sole
purpose is to demean people on the basis of race,
ethnicity, gender, religion, age, disability, or some
other similar ground, esp. when the communication is
likely to provoke violence.” Hate Speech, Black’s Law
Dictionary
(11th
ed.
2019).
Strikingly,
this
definition undercuts Coral Ridge’s definition of “hate
group” as requiring that the group engage in or
advocate crime or violence.
To explain: the key verb
in the definition--”to demean”--does not necessarily
entail engaging in or advocating crime or violence.
Furthermore, the word “especially” in the clause
“especially when the communication is likely to provoke
violence,” shows that hate speech may sometimes be
likely to provoke violence, but it is not always likely
to
provoke
violence.
Thus,
according
to
the
definition, “hate speech” does not necessarily provoke,
promote, or advocate crime or violence. Therefore, if
the court were to accept Coral Ridge’s asserted
definition of “hate group” as requiring engaging in or
advocating crime or violence, it would mean that there
could be a group exclusively and zealously dedicated to
engaging in “hate speech”--as defined by Black’s Law
Dictionary--that would not qualify under Coral Ridge’s
definition of a “hate group,” because it did not engage
in or advocate crime or violence.
This would be
absurd.

26

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 27 of 141

ii. Court’s Conclusion as to
Meaning of “Hate Group”
Accepting as true the well-pleaded facts--but not
the conclusory allegations--and construing them in the
light

most

favorable

to

Coral

Ridge,

the

court

concludes that there is no single, commonly understood
meaning of the term “hate group.”

Rather, as shown by

the conflicting definitions cited by Coral Ridge--and
dictionaries’ lack of a definition--the term does not
have

one

precise

definition,

and

instead

may

be

ascribed multiple different meanings by “the average
reader.”

St. Surin, 21 F.3d at 1317.13

13. Interestingly, there appears to be no uniform
definition of “hate group” in Canada either. The
Canadian Anti-Hate Network defines a hate group as “a
group which, as demonstrated by statements by its
leaders or its activities, is overtly hateful towards,
or creates an environment of overt hatred towards, an
identifiable
group
...
.”
https://www.antihate.ca/what_is_a_hate_group
(last
accessed on September 6, 2019).
Meanwhile, Queens
University’s Human Rights Office defines “hate groups”
as “organizations which: spread lies intended to incite
hatred toward certain groups of people; advocate
violence against certain groups on the basis of sexual
orientation, race, colour, religion etc.; claim that
their identity (racial, religious etc.) is 'superior'
to that of other people; do not value the human rights
27

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 28 of 141

With this determination as to the meaning of “hate
group” in mind, the court will now assess whether Coral
Ridge

has

plead

“enough

facts

to

state

relief that is plausible on its face.”

a

claim

to

Twombly, 550

U.S. at 570.14

2. Constitutional Requirements for Defamation
As

previously

mentioned,

the

First

Amendment

imposes three requirements on Coral Ridge:

It must

plausibly allege that the “hate group” designation is
provable as false and actually false, and that SPLC
made the designation with “actual malice.”

While Coral

of
other
people.”
See
http://www.queensu.ca/humanrights/initiatives/end-hateproject/what-hate/what-hate-group
(last
accessed
on
September 6, 2019).
14. As the “actual malice” subsection below
explains, an alternative holding in this case is that,
even if the court were to accept as true Coral Ridge’s
allegation that “hate group” is commonly understood to
require engaging in or advocating crime or violence,
Coral Ridge still would not plausibly plead actual
malice, and therefore its amended complaint would still
be dismissed.
28

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 29 of 141

Ridge must meet all three requirements, it cannot, for
the reasons outlined below, satisfy any of them.

i. Provable as False
Under

the

First

Amendment,

the

“hate

group”

designation is not actionable unless it is “provable as
false.”
19

Milkovich v. Lorain Journal Co., 497 U.S. 1,

(1990).15

Statements

are

provable

as

false

when

15. Milkovich stated that the “provable as false”
requirement for allegedly defamatory statements on
matters of public concern applied “at least in
situations, like the present, where a media defendant
is involved,” thus reserving the question whether it
applied with a nonmedia defendant. Id. at 19-20, n.6.
However, this court agrees with other courts that
subsequently concluded that the requirement applies
regardless of whether the defendant is characterized as
belonging to the media. See Obsidian Fin. Grp., LLC v.
Cox, 740 F.3d 1284, 1291 (9th Cir. 2014) (agreeing with
“every other circuit to consider the issue,” which have
“held that the First Amendment defamation rules in [New
York Times v.] Sullivan and its progeny apply equally
to the institutional press and individual speakers”);
Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir.
2009) (“[W]e believe that the First Amendment protects
nonmedia speech on matters of public concern that does
not contain provably false factual assertions.”); Flamm
v. Am. Ass’n of Univ. Women, 201 F.3d 144, 149 (2d Cir.
2000) (“[A] distinction drawn according to whether the
defendant is a member of the media or not is
untenable.”); Piccone v. Bartels, 40 F. Supp. 3d 198,
29

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 30 of 141

207 (D. Mass. 2014) (Wolf, J.) (agreeing with collected
cases in holding that “the constitutional limitations
on speech that can support liability for defamation
apply in cases involving non-media defendants”); see
also In re IBP Confidential Bus. Documents Litig., 797
F.2d 632, 642 (8th Cir. 1986); Garcia v. Bd. Of Educ.
Of Socorro Consol. Sch. Dist., 777 F.2d 1403, 1411
(10th Cir. 1985).
Concluding that the media-nonmedia distinction is
irrelevant comports with Eleventh Circuit decisions
that have applied the “actual malice” standard to
nonmedia defamation defendants.
See Echols v. Lawton,
913 F.3d 1313, 1321 (11th Cir. 2019); Morgan v. Tice,
862 F.2d 1495, 1500 (11th Cir. 1989).
Indeed,
providing less constitutional protection to nonmedia
defendants would conflict with Turner v. Wells, where
the
Eleventh
Circuit
rejected
the
defamation
plaintiff’s argument that “a different set of rules”
applied to the allegedly defamatory report because it
was not published by a media organization.
879 F.3d
1254, 1270-71 (11th Cir. 2018).
The court reasoned:
“The
First
Amendment
protects
both
media
(‘freedom ... of the press’) and non-media (‘freedom of
speech’) defendants.” Id. at 1271.
Finally,
giving
less
protection
to
nonmedia
defendants would be at odds with the Supreme Court’s
statement in Citizens United v. Fed. Election Comm’n:
“We have consistently rejected the proposition that the
institutional press has any constitutional privilege
beyond that of other speakers.”
558 U.S. 310, 352
(2010); cf. at 326 (“Substantial questions would arise
if courts were to begin saying what means of speech
should be preferred or disfavored.”).
To summarize, because the constitutional limits on
defamation actions apply equally to media and nonmedia
defendants, this court need not decide on which side of
30

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 31 of 141

their truth or falsity can be determined based on “a
core

of

objective

differently,
statement

the

is

evidence.”

requirement

“subject

to

Id.
is

at

21.

satisfied

empirical

Put
if

the

verification.”

Michel, 816 F.3d at 697.
An alleged defamatory statement is generally not
provable as false when it labels the plaintiff with a
term that has an imprecise and debatable meaning.

See,

e.g., Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir.
1976).
F.

In Buckley, the author and commentator William

Buckley,

Jr.

sued

author

and

Holocaust

scholar

Franklin H. Littell for libel because Littell’s book
characterized

Buckley

as

a

“fellow

“fascism” or the “radical right.”

traveler”

of

Id. at 890, 893.

The Second Circuit Court of Appeals held that those
terms

were

“concepts

whose

content

is

so

debatable,

loose and varying, that they are insusceptible to proof

the “blurred” media-nonmedia line SPLC falls.
Id. at
352 (“With the advent of the Internet and the decline
of print and broadcast media ... the line between the
media and others who wish to comment on political and
social issues becomes far more blurred.”).
31

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 32 of 141

of

truth

or

emphasized,
with

falsity.”
the

Id.

ambiguous

accusations

of

at

894.

labels

being

a

As

the

contrasted

member

or

court

sharply

legislative

representative of a concrete political party, which are
allegations that are “susceptible to proof or disproof
of falsity.”

Id.

That the plaintiff and defendant

defined “fascism” differently was but one example of
the

“imprecision

of

the

meaning

and

usage

term[] in the realm of political debate.”

of

the[]

Id. at 890,

893.
Subsequently, in Ollman v. Evans, the D.C. Circuit
Court

of

Appeals

elaborated

on

principles set forth in Buckley.
979-87 (D.C. Cir. 1984) (en banc).16

and

applied

the

See 750 F.2d 970,
The court held to

16. Both Buckley and Ollman analyzed whether the
defamatory statements had a precise meaning and were
provable as false to determine whether the statements
were of fact or “opinion.”
The fact-versus-opinion
distinction was relevant because those courts--and
others--considered opinions to be protected by the
First
Amendment.
In
fact,
Ollman
set
forth
an
influential four-factor test for distinguishing fact
from constitutionally protected opinion.
See 750 F.2d
at 979.
The first factor was “whether the statement
has a precise core of meaning for which a consensus of
32

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 33 of 141

understanding
exists
or,
conversely,
whether
the
statement is indefinite and ambiguous.”
Id.
The
second factor was “the statement’s verifiability--is
the
statement
capable
of
being
objectively
characterized as true or false?” Id.; see also id. at
981 (“[I]s the statement objectively capable of proof
or disproof?”). These two factors were essentially the
driving considerations in Buckley and Ollman, which
both
reasoned
that
certain
alleged
defamatory
statements were constitutionally protected opinion
because their meaning was highly ambiguous and not
provable as false.
Later, in Milkovich, the Supreme Court clarified
that there is no independent constitutional protection
for “opinion” that is separate from the requirement
that the defamatory statement be provable as false.
497 U.S. at 19-21.
However, Milkovich’s rejection of
the
fact-versus-“opinion”
dichotomy
was
largely
semantic, as the Court recognized the “provable as
false” requirement that drove the “opinion”-versus-fact
analyses in Buckley and Ollman.
Therefore, Buckley’s
and Ollman’s analyses of whether the statements were
provable as false are still most instructive and
directly
pertinent
to
assessing
the
still-valid
constitutional requirement that a defamatory statement
be provable as false, even though the provable-as-false
analyses in those cases were technically to determine
whether the statements qualified as “opinion”--a term
that Milkovich deemed constitutionally irrelevant. Or,
as one commentator put it: “The Court in Milkovich was
primarily rejecting only the terminology of ‘fact v.
opinion.’ The Court actually endorsed rather than
rejected the essential substance of the previously
existing constitutional protection for opinion. ...
[S]tatements not subject to objective proof ... are
still
immune
from
liability
under
the
First
Amendment. ...
[T]he rich body of jurisprudence
developed by lower courts ... under the rubric of the
33

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 34 of 141

be

“obviously

unverifiable”

the

alleged

defamatory

statement that the plaintiff academic was an “outspoken
proponent

of

political

Marxism.”

Id.

at

987.

It

highlighted that the characterization was “much akin
to” the “fascist” label in Buckley, in that it was a
“loosely definable, variously interpretable statement”
made

in

the

philosophical

context
debate.”

of

“political,

Id.

The

social

D.C.

or

Circuit

contrasted, on the one hand, the political Marxist and
fascist designations with, on the other, an accusation
of a crime, which is a “classic example of a statement
with a well-defined meaning.”

Id. at 980.

accusations

“not

of

crimes

are

records

Even though
of

sense

perceptions,” they depend for their meaning on social
norms

that

“are

so

commonly

understood

that

the

statements are seen by the reasonable reader or hearer
as implying highly damaging facts.”

Id.

‘opinion’ doctrine remains alive and well.” 1 Rodney A.
Smolla, Law of Defamation § 6:21 (2d ed. May 2019
update).
34

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 35 of 141

The

Ollman

court

explained

why

demanding

that

defamatory statements be “objectively capable of proof
or

disproof”

safeguards

important

free

speech

interests: “[I]nsofar as a statement is unverifiable,
the

First

Amendment

is

endangered

when

attempts

made to prove the statement true or false.”
981.

This

is

because

without

“a

clear

are

Id. at

method

of

verification with which to evaluate a statement--such
as

labelling

‘fascist’--the

a

well-known

trier

of

fact

American
may

author

improperly

tend

a
to

render a decision based upon approval or disapproval of
the

contents

subject.”
obvious

of
Id.

the

statement,

(internal

potential

for

its

citations

quashing

author,

or

omitted).

or

its
“An

muting

First

Amendment activity looms large when juries attempt to
assess

the

truth

of

a

method of verification.”

statement

that

admits

of

no

Id. at 981-82.

So, with these cases in mind, is the statement that
Coral Ridge is a “hate group” provable as false?
it is not.

No,

Like in Ollman and Buckley, the meaning of

35

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 36 of 141

the

term

“hate

varying,”

group”

that

is

so

labeling

“debatable,

Coral

Ridge

loose

and

one

is

as

“insusceptible to proof of truth or falsity.”
539

F.2d

“radical
“hate

at

894.

right,”

group”

Similar
and

also

to

the

“political
suffers

terms

“fascism,”

Marxist,”

from

a

Buckley,

the

term

“tremendous

imprecision of the meaning and usage ... in the realm
of political debate.”

Id. at 893.

This imprecision is

reflected in the conflicting definitions of the term
espoused by Coral Ridge and SPLC, as well as by the
ADL, and FBI.

Unlike the accusation of a crime, the

accusation of being a hate group does not derive its
meaning

from

“commonly

Ollman, 750 F.2d at 980.
also

a

far

allegation

cry
of

affiliation,”

understood”

norms.

A “hate group” designation is

from

having
such

social

the
a

as

objectively

verifiable

“well-defined

political

being

“a

legislative

representative of the Communist Party.”

Buckley, 539

F.2d at 894.

36

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 37 of 141

In sum, because “hate group” has a highly debatable
and

ambiguous

meaning,

Coral

Ridge’s

such is not “provable as false.”
at 19.17

designation

as

Milkovich, 497 U.S.

Therefore, the First Amendment protects the

statement.

ii. False
In

addition

statement

be

to

requiring

provable

that

as

the

false,

a

defamatory

First

Amendment

also requires that “a public-figure plaintiff must show
the falsity of the statements at issue in order to
prevail in a suit for defamation.”
Inc.

v.

Hustler

Hepps,

475

Magazine,

U.S.

Inc.

767,

v.

775

Falwell,

Phila. Newspapers,
(1986);
485

see

U.S.

also

46,

52

17. The court does not go so far as to hold that a
“hate group” label can never be provable as false. The
court need not address whether it would be possible for
a factual situation to arise in which the designation
would be provable as false because no plausible
construction of the ambiguous term would fit the
plaintiff, such as might be the case if the term were
applied to a middle-school chess team with no views on
anything other than chess strategy.
That is not the
case here, given that Coral Ridge is a public figure
that espouses its opposition to homosexual conduct.

37

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 38 of 141

(1988).

Coral Ridge cannot prove the falsity of the

“hate group” designation, given that, as the court has
found,

the

designation

is

not

provable

as

false.

Logically speaking, a plaintiff cannot prove what is
not

provable.

(inferring

Cf.

the

Milkovich,

497

provable-as-false

U.S.

at

16,

requirement

19

from

Hepps’s requirement to prove falsity).
This court’s holdings that Coral Ridge does not
plausibly plead that the “hate group” designation was
(1)

provable

independently

as

false

sufficient

or
to

(2)

false

dismiss

the

are

each

defamation

claim.

Nevertheless, the court will now discuss Coral

Ridge’s

failure

which

is

an

to

plead,

alternative

plausibly,
ground

for

actual

malice,

dismissing

the

claim.

iii. Actual Malice
The

third

and

final

First

Amendment

hurdle

for

Coral Ridge is that it must plausibly allege that SPLC
made the “hate group” designation with “actual malice,”

38

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 39 of 141

that is, “with knowledge that it was false or with
reckless disregard of whether it was false or not.”
New

York

Times,

376

requires falsity.
Hoeper,

571

U.S.

U.S.

at

280.

“Actual

malice”

See Air Wisconsin Airlines Corp. v.
237,

247

(2014)

(“One

could

in

principle construe the language of the actual malice
standard to cover true statements made recklessly.

But

we have long held, to the contrary, that actual malice
entails falsity.”).

Therefore, Coral Ridge’s failure

to plead plausibly that the “hate group” designation is
provable as false or false necessarily means that it
cannot plausibly allege “actual malice.”
Nonetheless, for the following reasons, even if the
court were to conclude that the “hate group” label was
both provable as false and actually false, Coral Ridge
still would not plausibly allege actual malice.
The test for actual malice “is not an objective one
and the beliefs or actions of a reasonable person are
irrelevant.”

Michel, 816 F.3d at 702-03 (citing St.

Amant v. Thompson, 390 U.S. 727, 731 (1968)).

39

Rather,

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 40 of 141

the

plaintiff

court

to

must

draw

plead

the

enough

reasonable

facts

to

inference

allow

the

that

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.

Coral Ridge does not satisfy

this test.
Coral

Ridge’s

basic

contention

regarding

actual

malice is that the “hate group” definition that SPLC
used in designating it as such is so far removed from
the commonly understood meaning of the term that SPLC
must have known--or at least recklessly disregarded-the falsity of the designation.
(doc.

no.

40)

at

¶ 67

(“SPLC’s

See, e.g., Am. Compl.
definition

of

‘hate

group’ is so far outside of how hate groups are legally
and

culturally

understood

that ... SPLC

knew

of

the

falsity of its definition at the time it designated the
Ministry a hate group ... .”); id. at ¶ 67, 69.

In

other words, according to Coral Ridge, SPLC’s actual
malice

should

be

inferred

from

40

the

gaping

disparity

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 41 of 141

between, on the one hand, the common understanding that
all

hate

groups

engage

in

or

advocate

crime

or

violence, and, on the other, SPLC’s broader definition
of “hate group” and its application of that definition
to

Coral

Ridge

for

“oppos[ing]

homosexual

conduct.”

Id. at ¶ 61.
Fatal to Coral Ridge’s contention is the reality
that “hate group” has no single, commonly understood
meaning.

Without a commonly understood meaning, there

can be no chasm between the commonly understood meaning
and SPLC’s definition.
Furthermore, Coral Ridge still would not plausibly
allege actual malice even if this court were to accept
as

true

its

allegation

that

the

single,

commonly

understood meaning of “hate group” requires that the
group

engage

Granted,

if

in
that

or
were

advocate
the

crime

case,

there

or

violence.

would

be

a

significant discrepancy between the commonly understood
meaning of a hate group and SPLC’s definition, given
that the latter lacks a violence or crime requirement.

41

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 42 of 141

And, admittedly, a substantial disparity between the
commonly

understood

meaning

of

a

term

and

the

definition relied on by an alleged defamatory speaker
might, in certain circumstances, lead to a reasonable
inference of knowledge or recklessness as to falsity.
Cf. Michel, 816 F.3d at 703 (noting that the Supreme
Court has stated that actual malice “can be inferred in
certain circumstances,” such as when allegations are
“so

inherently

improbable

that

only

a

would have put them in circulation”).
those

circumstances

are

not

present

reckless

man

Nevertheless,

under

the

facts

pleaded here.
Specifically, Coral Ridge pleads that SPLC, holding
itself out to the public as a “premier” U.S. monitor of
“hate groups,” publicly disseminates its own definition
of “hate groups” to a “vast” audience of people and
media across the country.
¶¶ 71, 143.18

Am. Compl. (doc. no. 40) at

Coral Ridge does not plead any facts

18. SPLC puts its definition of a “hate group” on
its website at https://www.splcenter.org/hate-map. See
Am. Compl. (doc. no. 40) at ¶ 59. On its website, SPLC
42

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 43 of 141

indicating that SPLC subjectively doubts or disbelieves
the validity or accuracy of the definition that it so
widely promotes under the banner of being a premier
“hate group” monitor.
accepted

Coral

Consequently, even if the court

Ridge’s

asserted

commonly

understood

meaning of “hate group,” the pleaded facts, read in the
light most favorable to Coral Ridge, would support the
reasonable

inference

that

SPLC

promotes

its

own

sincerely held view of the meaning of “hate group,”
despite

the

difference

between

its

view

and

the

commonly understood meaning that a “hate group” engages
in or advocates crime or violence.19

Setting aside

claims to be the “premier U.S. nonprofit organization
monitoring the activities of domestic hate groups and
other extremists.”
Id. at ¶ 71.
SPLC “disseminates,
distributes and promotes the Hate Map and resulting
hate group designations on its website.”
Id. ¶ 21.
The dissemination of the Hate Map and hate group
designations “is nothing short of vast,” as the “SPLC’s
website receives an extremely large number of views and
significant general media exposure.”
Id. at ¶ 143.
The Hate Map reaches “a large number of people in every
state in the United States and beyond.” Id. at ¶ 75.
19. The same would be true if the court were to
accept the FBI’s or ADL’s definitions of a hate group
43

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 44 of 141

the

above-discredited

allegations

claiming

a

common

definition of “hate group,” the pleaded facts do not
lead to a reasonable inference that “instead of acting
in

good

doubts

faith,”
as

definition

SPLC

“actually

to

the

veracity”

and

application

to

entertained

of

its

Coral

“hate
Ridge,

serious
group”
or

was

“highly aware” that the definition and designation was
“probably false.”
bottom

line

is

Michel, 816 F.3d at 702-03.20
that,

regardless

of

the

The

commonly

understood meaning of “hate group,” Coral Ridge does

as providing the single, commonly understood meaning of
the term.
20.
Still
operating
under
the
counterfactual
situation in which the court credited Coral Ridge’s
definition of “hate group” as the single, commonly
understood meaning of the term, the court might have
reached a different conclusion as to actual malice if
SPLC did not publish and widely disseminate its own
definition; or if its definition were ridiculously
outlandish.
It also might have been a different case
if the allegedly defamatory term SPLC defined on its
website was not so germane to its mission, such as if
SPLC started to publish a list of purported “substance
abusers”--a topic far removed from its mission to
monitor hate groups--and then provided a highly
unconventional definition of the term.
Circumstances
such as these might indicate that SPLC was acting in
bad faith. Of course, they do not exist here.
44

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 45 of 141

not plausibly allege that SPLC’s subjective state of
mind was sufficiently culpable.
To find actual malice just because SPLC publicized
a

meaning

common

of

“hate

group”

understanding

undermine

debate

public concern.

of

and

that
the

free

conflicted
term

speech

with

would

about

a

the

severely
matter

of

This is because, even if the term had

achieved a commonly understood meaning, that meaning
would not be fixed forever, but rather could evolve
through

public

promoting

a

debate.

genuinely

To
held

sanction

a

dissenting

speaker
view

of

for
the

meaning of “hate group” would be akin to punishing a
speaker for advocating new conceptions of terms like
“terrorist,” “extremist,” “sexist,” “racist,” “radical
left

wing,”

“radical

“conservative.”

right

wing,”

“liberal,”

or

Punishing speakers to preserve status

quo ideas would be anathema to the First Amendment.
***
If

Coral

designation,

Ridge
its

disagrees

hope

for

45

with
a

the

remedy

“hate
lies

group”
in

the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 46 of 141

“marketplace
Milkovich,
States,

of

497

250

dissenting)

ideas,”
U.S.

U.S.

at

18

616,

(“[T]he

not

a

defamation

(citing
630

ultimate

Abrams

(1919)
good

action.

v.

United

(Holmes,

desired

is

J.,

better

reached by free trade in ideas-- ... the best test of
truth

is

the

power

of

the

thought

to

get

itself

accepted in the competition of the market.”).

As a

public figure, with a national, if not international
audience, and a figure that has already “been vocal
about its position on homosexuality” and maintains that
“speaking

out

on

these

issues

is

necessary,”

Pl.’s

Resp. to SPLC’s Mot. to Dismiss (doc. no. 51) at 10,
Coral

Ridge

is

free

publicly

to

engage

SPLC;

to

criticize SPLC’s definition of a “hate group”; and, in
particular, to challenge Coral Ridge’s designation as
such.

This engagement should be in the court of public

opinion, not a federal court.
will be dismissed with prejudice.

46

The defamation claim

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 47 of 141

B. Lanham Act Claims Against SPLC
Coral

Ridge

designation

of

seeks

hold

Ridge

Coral

to

SPLC

as

a

liable

“hate

for

group”

its

under

Section 43(a) of the Lanham Act, which is codified at
15 U.S.C. § 1125(a).

This provision establishes “two

distinct

liability:

bases

of

§ 1125(a)(1)(A),

and

association,

false

§ 1125(a)(1)(B).”

Lexmark

Control

Inc.,

Components,

false

advertising,

Int'l,

572

Inc.

U.S.

v.
122

118,

Static
(2014).

Coral Ridge brings both types of claims.
Coral

Ridge

claims

that

SPLC

engaged

in

false

advertising by falsely designating it a “hate group” on
its Hate Map, disseminating the Map and “hate group”
designation in connection with reports and trainings,
and engaging in fundraising focused on the Hate Map and
“hate

group”

designations.

§ 1125(a)(1)(B)

(establishing

connection

goods

misleading

with

description

and
of

advertising or promotion”).

47

See
claim

services”
fact

...

15
for

of

“a

in

U.S.C.
use
false

“in
or

commercial

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 48 of 141

Coral Ridge’s false-association claim rests on many
of the same allegations, but focuses on SPLC’s use of
Coral Ridge's trademarked name.

Coral Ridge contends

that the use of its trademarked name on the Hate Map is
likely

to

cause

confusion

as

to

Coral

Ridge’s

“association” with other hate groups on the Map, such
as the Ku Klux Klan and the American Nazi Party.

See

15 U.S.C. § 1125(a)(1)(A) (establishing claim for use
of a trademark “in connection with goods and services”
that “is likely to cause confusion

... as to

...

association”).
Because Coral Ridge’s claims cannot, as an initial
matter, withstand the rigorous protections of the First
Amendment, and because it has not pleaded viable claims
under the statute, the claims fail.

1. First Amendment
As the Supreme Court has made clear, even when they
do not bring a defamation claim, ‘public figures’ who
seek to sue others who criticize them may still be

48

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 49 of 141

subject

to

New

York

Times

v.

Sullivan’s

heightened

requirements for liability. 376 U.S. 254 (1964).
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
(1988), Jerry Falwell, a nationally known minister and
commentator on politics, had successfully sued Hustler
Magazine, a nationally circulated magazine, to recover
damages

for

distress’

‘intentional

arising

advertisement
portrayed

from

“parody”

Falwell

as

infliction
the

emotional

publication

which,
having

of

among

of

an

other
in

engaged

things,
drunken

a

incestuous rendezvous with his mother in an outhouse.
In

overturning

the

lower-court

jury

verdict,

the

Supreme Court, while recognizing that the publication
was “gross and repugnant in the eyes of most,” 485 U.S.
at 50, found that, because Falwell was concededly a
public figure, he was subject to the New York Times’s
twin

obligations

contains

“a

false

of

showing

statement

that
of

the

fact”

statement “was made with ‘actual malice.’”

49

publication

and

that

the

Id. at 56.

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 50 of 141

In explaining why the Supreme Court found as it
did,

this

Falwell,

court

must,

revisit

as

did

certain

albeit only briefly.

the

Supreme

well-founded

Court

in

principles,

These principles, as summarized

in Falwell, are as follows: “At the heart of the First
Amendment

is

the

recognition

of

the

fundamental

importance of the free flow of ideas and opinions on
matters of public interest and concern. ‘[T]he freedom
to speak one's mind is not only an aspect of individual
liberty--and
essential
vitality

to
of

thus
the

a

good

unto

common

society

as

quest
a

itself--but
for

whole.’

also

truth

and

Bose

Corp.

is
the
v.

Consumers Union of United States, Inc., 466 U.S. 485,
503–504

(1984).

We

have

therefore

been

particularly

vigilant to ensure that individual expressions of ideas
remain free from governmentally imposed sanctions.

The

First Amendment recognizes no such thing as a ‘false’
idea.
(1974).

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339
As

Justice

Holmes

wrote,

‘when

men

have

realized that time has upset many fighting faiths, they

50

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 51 of 141

may come to believe even more than they believe the
very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought
to get itself accepted in the competition of the market
...

.’

(1919)

Abrams

v.

(dissenting

United

States, 250

opinion).”

U.S.

Falwell,

616,

485

U.S.

630
at

50-51 (emphasis added).
The Falwell Court went on to state that: “The sort
of

robust

political

debate

encouraged

by

the

First

Amendment is bound to produce speech that is critical
of those who hold public office or those public figures
who

are

‘intimately

involved

in

the

resolution

of

important public questions or, by reason of their fame,
shape events in areas of concern to society at large.’
Associated

Press

Publishing

Co.

(Warren,

C.J.,

v.

v.

Walker,

Butts, 388

concurring

decided
U.S.

in

with

Curtis

164

(1967)

130,

result).

Justice

Frankfurter put it succinctly in Baumgartner v. United
States, 322 U.S. 665, 673–674 (1944), when he said that

51

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 52 of 141

‘[o]ne of the prerogatives of American citizenship is
the right to criticize public men and measures.’ Such
criticism, inevitably, will not always be reasoned or
moderate; public figures as well as public officials
will be subject to ‘vehement, caustic, and sometimes
unpleasantly sharp attacks,’ New York Times, supra, 376
U.S., at 270.”

Falwell, 485 U.S. at 51.

Falwell argued that, despite these First Amendment
principles, a different standard should apply in this
case

because

the

government

sought

to

prevent

“not

reputational damage, but the severe emotional distress
suffered

by

the

person

offensive publication.”

who

is

the

subject

Falwell, 485 U.S. at 52.

The Court rejected this argument, reasoning

of

an

.
that:

“[I]n the world of debate about public affairs, many
things done with motives that are less than admirable
are protected by the First Amendment ... . [E]ven when
a speaker or writer is motivated by hatred or illwill
his expression was protected by the First Amendment:
‘Debate on public issues will not be uninhibited if the

52

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 53 of 141

speaker must run the risk that it will be proved in
court that he spoke out of hatred; even if he did speak
out of hatred, utterances honestly believed contribute
to the free interchange of ideas and the ascertainment
of truth.’
(1964)].”

[Garrison v. Louisiana, 379 U.S. 64, 73
Falwell, 485 U.S. at 53 (emphasis added).

Critical to Court was not the “label” placed on the
cause of action, New York Times, 376 U.S. at 269 (“In
deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the
epithet ‘libel’ than we have to other ‘mere labels' of
state law.”), but rather whether the concern raised by
New York Times and reiterated in later cases was at
issue:

that

“debate

on

public

uninhibited, robust, and wide-open
U.S. at 270.

issues
... .”

should

be

Id., 376

As the Falwell Court emphasized: ”At the

heart of the First Amendment is the recognition of the
fundamental importance of the free flow of ideas and
opinions on matters of public interest and concern.”
485 U.S. at 50 (emphasis added).

53

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 54 of 141

The
merely

Falwell
a

‘blind

Times standard
judgment

Court

that

concluded:

application’

...
such

then

,
a

it

of

reflects

standard

is

“This

is

the New
our

not
York

considered

necessary

to

give

adequate ‘breathing space’ to the freedoms protected by
the First Amendment.”

Id. at 56.

Here, as discussed above, Coral Ridge has conceded
that

it

stated,

is

a

are

‘public
defined

figure.’
by

Public

“the

notoriety

figures,
of

as

their

achievements or the vigor and success with which they
seek the public's attention,” Gertz, 418 U.S.at 342;
they “usually enjoy significantly greater access to the
channels of effective communication and hence have a
more

realistic

statements

than

opportunity
private

to

counteract

individuals

normally

false
enjoy,”

id. at 323; and they “thrust themselves and their views
into the public controversy in an effort to influence
others,

see

Hutchinson

v.

135-36 (1979).

54

Broxmire,

443

U.S.

111,

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 55 of 141

Coral Ridge admits that it is a public figure, with
quite

significant

“access

to

the

channels

of

communication” through its television and other media
efforts.

Id. at 323.

It freely chose to take a public

stance on an issue of broad, pressing national debate
and

public

concern:

homosexuality,

and

more

specifically the morality of “homosexual conduct” and
the legal right to same-sex marriage.

See Pl.’s Resp.

to SPLC’s Mot. to Dismiss (doc. no. 51) at 10 (Coral
Ridge not only admits that “the Ministry has been vocal
about its position on homosexuality,” it also argues
that “speaking out on these issues is necessary).
It has further conceded that the dispute between it
and SPLC arises out of SPLC’s labelling of it as an
“Anti-LGBT hate group” for its stance on this debate.
See Am. Compl. (doc. no. 40) at ¶ 154.
therefore,

is

nothing

less

than

a

At issue here,
public

figure’s

engagement in an out-and-out “public debate” on one of
the matters of “highest public interest and concern” in

55

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 56 of 141

this country.

New York Times, 376 U.S. at 266.

That

being so, ”adequate ‘breathing space,’” Falwell, 485
U.S. at 56, in the form of the protections provided in
New York Times v. Sullivan must be given.
Coral Ridge argues that it is not a hate group;
that, while it “opposes homosexual conduct,” it “has
nothing but love for people who engage in homosexual
conduct,” Am. Compl. (doc. no. 40) at ¶ 61; and that
its views on “same-sex marriage” and the “homosexual
agenda”
(quoting
(2015)).

are

“decent

Obergefell
It

and
v.

further

honorable,”

Hodges,
argues

135
that,

id.

U.S.

at

¶

2584,

because

82
2602

SPLC’s

labeling, in response to its stand, is “in connection”
with “goods and services,” it should be able to recover
damages under the Lanham Act.

Id. at ¶¶ 125, 145.

But, when Coral Ridge, as a public figure, entered the
public debate about gay rights, it took on the risk
that it and its goods and services would be adversely
affected.

A public figure cannot enter the fray of

debate halfway.

As the Supreme Court cautioned in the

56

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 57 of 141

Falwell

case:

spotless

The

record

convincingly
industrious

cry

public
and

that

sterling

‘Foul!’

reporter

contrary.”

figure

when

attempts

“vaunts

integrity

[its]
cannot

an

opponent

or

to

demonstrate

an
the

Monitor Patriot Co. v. Roy, 401 U.S. 265,

274 (1971).
Moreover, there is nothing in New York Times v.
Sullivan

and

its

progeny

that

suggests

that,

simply

because a public figure that has entered the fray of
public debate sells goods or services, it should when
verbally

attacked

escape

the

heightened

requirements

for establishing liability under the First Amendment
and should enjoy an uneven playing field, that is, an
advantage over those public figures that do not sell
goods
public

and

services.

figures

Coral

around

Ridge

joined

the

country

in

many

the

discussion about the rights of gay people.

other

national

When it did

this it opened itself up to criticisms about its views.
For

all

the

‘public

name-calling--“purveyor

of

57

figure’
sin

and

participants,
indecency”

or

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 58 of 141

“purveyor of hate”--comes with the turf.

Coral Ridge

has joined in that public debate and must now abide by
the same rules all other public figures do.
Having found that, in asserting Lanham Act claims,
Coral Ridge is subject to the heightened standard of
the First Amendment, the court further concludes that,
to recover from SPLC, Coral Ridge must show that what
SPLC said about it was provable as false and false, and
was said with actual malice.

For the reasons given

above, in the discussion of Coral Ridge’s defamation
claim, Coral Ridge’s complaint fails to assert adequate
allegations to this effect.
Nevertheless, Coral Ridge argues that public debate
on gay rights is not the sole concern presented here.
It contends that SPLC also uses the Hate Map and “hate
group” designations to promote Hate-Map-related “goods
and

services”--its

informational

reports,

services--and,

trainings,
indeed,

and

argues

other

that

it

makes money from the sale of those “goods and services”
as a result of its “hate group” designations.

58

However,

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 59 of 141

SPLC,

like

a

magazine

or

a

newspaper,

is

in

the

business of communicating information and viewpoints on
issues of public concern and debate.

“[M]agazines and

newspapers often have commercial purposes, but those
purposes do not convert the individual articles within
these editorial sources into commercial speech subject
to Lanham Act liability. See Farah v. Esquire Magazine,
736 F.3d 528, 541 (D.C. Cir. 2013) (holding that a
satirical article about a book in a magazine’s online
blog was not commercial speech subject to Lanham Act
liability
publish

even
...

though

for

‘writers

commercial

write

and

purposes’);

publishers
Hoffman

v.

Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir.
2001) (‘A printed article meant to draw attention to
the for-profit magazine in which it appears, however,
does not fall outside of the protection of the First
Amendment

because

it

may

help

to

sell

copies.’).”

Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 952
(11th Cir. 2017).

See also Burstyn v. Wilson, 343 U.S.

495, 501 (1952) (“That books, newspapers, and magazines

59

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 60 of 141

are published and sold for profit does not prevent them
from

being

a

form

of

expression

whose

safeguarded by the First Amendment.”).

liberty

is

The fact that

SPLC may, as alleged, earn money in connection with
these communicative activities on an issue of public
concern

does

not

reduce

the

protection

it

receives

under the First Amendment, and does not convert its
speech into the basis for a viable Lanham Act claim.
Likewise, the fact that the Hate Map may be used to
attract

attention

Hate-Map-related

to

and

trainings

increase
and

sales

of

informational

SPLC’s

services

does not convert the Map and “hate group” designations
into purely commercial speech subject to a lower level
of constitutional protection.

See Hoffman, 255 F.3d at

1186.
Similarly, the allegation that SPLC may use the
Hate Map and “hate group” designations in fundraising
does not mean that it should receive a lesser level of
First

Amendment

explained

in

protection.

Virginia

State

60

As

the

Board

of

Supreme

Court

Pharmacy

v.

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 61 of 141

Virginia
struck

Citizens
down

a

Consumer

Council,

restriction

on

Inc.,

it

advertising

the

where

of

prescription drug prices: “Speech ... is protected ...
even though it may involve a solicitation to purchase
or otherwise pay or contribute money.”
761

(1976).

Furthermore,

in

425 U.S. 748,

cases

involving

fundraising by charitable organizations, the court has
treated that speech as deserving of the highest level
of protection, based on “the reality that solicitation
is characteristically intertwined with informative and
perhaps

persuasive

speech

...,

and

...

that

without

solicitation the flow of such information and advocacy
would likely cease.”

Riley v. Nat'l Fed'n of the Blind

of N. Carolina, Inc., 487 U.S. 781, 796 (1988); see
also Sec’y of State of Md. v. Joseph H. Munson Co., 467
U.S. 947 (1984); Village of Schaumburg v. Citizens for
a

Better

Env’t,

444

U.S.

620

(1980).

Thus,

the

allegations about the use of Hate Map in fundraising do
not reduce the constitutional protections for SPLC’s
speech.

61

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 62 of 141

Finally, the legislative history of the Lanham Act
is consistent with the court’s conclusion. When the Act
was revised in 1989, requirements were added that false
advertising

occur

advertising

and

misleading
fact.”
§ 27:96

in

the

context

promotion,”

description

or

and

of

that

“commercial
a

representation

false

be

one

or
“of

5 McCarthy on Trademarks and Unfair Competition
(5th

ed.).

With

regard

to

these

changes,

Representative Kastenmeier, who carried the bill in the
House of Representatives, explained that both additions
were drafted in order to avoid conflicts with the First
Amendment.

See Remarks of Rep. Kastenmeier on S. 1883,

134

Rec.

Cong.

31851

(Oct.

19,

1988)

(“To

avoid

legitimate constitutional challenge, it was necessary
to

carefully

limit

the

reach

of

the

subsection.

Because section 43(a) will now [sic.] provide a kind of
commercial defamation action, the reach of the section
specifically

extends

speech

is

that

only

encompassed

to

false
within

and
the

misleading
"commercial

speech" doctrine developed by the United States Supreme

62

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 63 of 141

Court. See, e.g., Central Hudson Gas & Electric Corp.
v. Public Service Comm’n of N.Y., 447 U.S. 557 (1980);
Va. State Bd. of Pharmacy v. Va. Citizens Consumers
Council,

Inc.,

425

U.S.

748

(1976).

In

addition,

subsection (a) will extend only to false and misleading
statements of fact. Gertz v. Robert Welch, Inc., 418
U.S. 323, 339–40 (1974).” (emphasis in original)).
Although

the

above

legislative

history

is

admittedly sparse, a leading commentator has observed
that the added “fact” requirement appears to have been
“a

conscious

and

intentional

limitation

imposed

by

Congress to exclude from the prohibitions of § 43(a)
allegedly
opinion”

false
in

or

light

indicated

that

defamation

liability

misleading
of

the

the
First

for

representations

Gertz

decision,

Amendment

statements

of

of

which

prohibited
opinion.21

21. As stated earlier, see supra n. 16, the Supreme
Court later clarified its view that the proper test for
First Amendment purposes is not whether an allegedly
false statement is of “fact” or “opinion,” but whether
it is provably false. See Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20 (1990).
63

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 64 of 141

5 McCarthy on Trademarks and Unfair Competition § 27:96
(emphasis in original); see Gertz, 418 U.S. at 339-40.
As

for

the

advertising
offered

or

more

trademark

added

requirement

promotion,”

explanation,

"advertising

or

“commercial

Representative
quoting

commentator,

of

who

promotion"

at

Kastenmeier

length

explained

requirement

a

noted

that

would

the

exclude

statements raising free speech concerns from coverage
of the Act.

Remarks of Rep. Kastenmeier on S. 1883,

134 Cong. Rec. 31852 (Oct. 19, 1988).
that

the

categories

of

speech

He explained

excluded

from

the

coverage of the Act “are the type which raise free
speech
reviews

concerns,
and

such

may

as

a

disparage

Consumer
the

Report

quality

of

which
stereo

speakers or other products, misrepresentations made by
interested
company

and

failure

to

groups

which

its

products

divest

its

may

arguably

because

South

of

African

disparage
the

a

company's

holdings,

and

disparaging statements made by commentators concerning
corporate product liability and injuries to the public

64

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 65 of 141

(e.g., A.H. Robins and the Dalkon shield cases, or the
Manville

Corporation

asbestos

cases).

All

of

these

would be judged by first amendment law (including New
York Times v. Sullivan) and not section 43(a) law ...
.” Id.

See also id. (“As Mr. Gilson correctly notes,

the proposed change in section 43(a) should not be read
in

any

way

editorial

to

limit

comment,

political
parodies,

speech,

consumer

satires,

or

or

other

constitutionally protected material.... The section is
narrowly drafted to encompass only clearly false and
misleading commercial speech.”).
While not conclusive, this legislative history is
consistent
Congress

with

this

anticipated

court’s

analysis:

it

that

conflict

would

a

suggests
arise

between the First Amendment and the Lanham Act if it
were applied to speech on matters of public concern,
and that, were a claim brought under the Lanham Act for
such speech, the claim would be subject to the standard
set forth in New York Times v. Sullivan, not those of
the Lanham Act.

65

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 66 of 141

2. Application of the Lanham Act
Constitutional
failed

to

concerns

plausibly

aside,

plead

false-advertising claims.

Ridge

has

false-association

its

Coral

and

The court will first address

the false-advertising claim, and will then turn to the
false-association claim.

a. False-Advertising Claim
Section 1125(a)(1)(B) establishes a cause of action
for

false

advertising

against

any

person

or

entity

“who, on or in connection with any goods or services,
... uses in commerce
description

of

representation
advertising

fact,

of

or

... any

... false or misleading

or

fact,

which

promotion,

false
...

or
in

misrepresents

misleading
commercial
the

nature,

characteristics, qualities, or geographic origin of his
or

her

or

another

person’s

goods,

services,

or

commercial activities.” 15 U.S.C. § 1125(a)(1)(B); see
also Suntree Techs., Inc. v. Ecosense Int'l, Inc., 693

66

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 67 of 141

F.3d 1338, 1348 (11th Cir. 2012).

Even if for purposes

of this discussion Coral Ridge has sufficiently alleged
that

SPLC

connection

made
with

its

“hate

group”

goods

and

services,

designation
Coral

in

Ridge’s

false-advertising claim must nevertheless be dismissed
because it has not plausibly pled that the “hate group”
designation

was

a

description

or

representation

of

fact, and or that that it made the challenged statement
in “commercial advertising and promotion.”
As discussed above, prior to the 1989 revision,
Section 43(a) of the Lanham Act applied to false or
misleading
1989

“representations”

revision

added

the

or

“descriptions.”

clarification

that

representations or descriptions must be “of fact.”

The
such
As

discussed above, Congress apparently added this phrase
to ensure that liability would not be imposed under the
Lanham Act for statements of opinion, which the Supreme
Court in Gertz suggested were protected from liability
under the First Amendment.

See Gertz, 418 U.S. at

339-40 (“Under the First Amendment there is no such

67

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 68 of 141

thing as a false idea. However pernicious an opinion
may

seem,

we

depend

for

its

correction

not

on

the

conscience of judges and juries but on the competition
of other ideas.”).

The Supreme Court later clarified

its view that the proper test under the First Amendment
is

not

“fact”

whether
or

an

allegedly

“opinion,”

but

false

whether

statement
it

is

is

of

“provably

false.” See Milkovich v. Lorain Journal Co., 497 U.S.
1, 20 (1990).22
In support of its false-advertising claim, Coral
Ridge alleges in the complaint that SPLC misrepresented
the

nature,

Ridge’s

characteristics,

goods

and

services

organization a ‘hate group.’
in

the

defamation

and

section,

quality
by

of

labelling

Coral
the

For the reasons discussed
the

designation

of

Coral

Ridge as a “hate group” is not provable as false; there
is no commonly accepted definition of the term “hate
group.” Thus, the representation or description that

22. As discussed earlier, see supra n. 16, this
distinction appears largely semantic, because opinions
are not provable as false.
68

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 69 of 141

Coral Ridge challenges is not one “of fact,” and the
false-advertising claim must be dismissed.
Coral Ridge’s claim also must be dismissed because
it has not plausibly pleaded that SPLC used the hate
group

designation

in

“commercial

advertising

promotion.”

15 U.S.C. § 1125(a)(1)(B).

“commercial

advertising

commercial

speech;

commercial

competition

purpose

of

(2)

influencing

or
by

with

The test for

promotion”
a

defendant

plaintiff;

consumers

to

or

is:
who

(3)

buy

“(1)
is

for

in
the

defendant’s

goods or services; and (4) the representations ... must
be disseminated sufficiently to the relevant purchasing
public

to

constitute

within that industry.”23

‘advertising’

or

‘promotion’

Edward Lewis Tobinick, MD, 848

23. It is unclear whether the second part of the
test for “commercial advertising or promotion”--that
the speech must have been “by a defendant who is in
commercial competition with [the] plaintiff”, Edward
Lewis Tobinick, MD, 848 F.3d at 950--is still good law
after the Supreme Court’s decision in Lexmark Int'l,
Inc. v. Static Control Components, Inc., 572 U.S. 118
(2014).
There, in determining the requirements for
statutory standing under 15 U.S.C. § 1125(a)(2), the
Court explained “when a party claims reputational
injury from disparagement, competition is not required
69

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 70 of 141

F.3d at 950 (quoting Suntree Techs., Inc. v. Ecosense
Int’l,

Inc.,

693

F.3d

1338,

1349

(11th

Cir.

2012)

(quoting Gordon & Breach Sci. Publishers S.A. v. Am.
Inst. of Physics, 859 F. Supp. 1521, 1535–36 (S.D.N.Y.
1994) (Sand., J.))).

i. Commercial Speech
With the facts alleged in the complaint considered
in the light most favorable to the plaintiff, SPLC’s
use of the Hate Map does not constitute ‘commercial
speech.’
To
alleged

assess
that

whether
SPLC

Coral

engaged

in

Ridge

has

commercial

sufficiently
speech,

the

court looks to the First Amendment commercial speech
doctrine.
950

See Edward Lewis Tobinick, MD, 848 F.3d at

(applying

First

Amendment

commercial

speech

jurisprudence to determine whether plaintiff met the

for proximate cause.”
Id. at 138.
Because the
allegations of the complaint do not establish the other
factors in the four-part test, the court need not
resolve the continuing validity of the second part of
the test, and does not apply it here.
70

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 71 of 141

‘commercial speech’ element of commercial advertising
or promotion under § 1125(a)(1)(B)).24
Under
speech

the

commercial

receives

a

speech

lower

doctrine,

level

of

commercial

constitutional

protection than do other forms of speech more central
to

the

concerns

expressive,

of

the

scientific,

First
and

Amendment,

political

speech on matters of public concern.

such

speech,

as
and

See Cent. Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447
U.S. 557, 562–63 (1980).

The

“core

notion”

of

24. This is so for two reasons.
First, as
discussed earlier, seeking to avoid conflict with the
First Amendment, Congress reportedly drafted § 1125(a)
“to extend only to false and misleading speech that is
encompassed within the ‘commercial speech’ doctrine
developed by the United States Supreme Court.” Gordon
& Breach Sci. Publishers S.A., 859 F. Supp. at 1536.
Second, under the doctrine of constitutional avoidance,
the Lanham Act should be read in a way that avoids
conflict with the First Amendment. See Clark v.
Martinez, 543 U.S. 371, 380-81 (2005) (“In other words,
when
deciding
which
of
two
plausible
statutory
constructions to adopt, a court must consider the
necessary consequences of its choice. If one of them
would raise a multitude of constitutional problems, the
other should prevail.”). If the Lanham Act were read to
impose
civil
liability
for
noncommercial
speech
receiving
the
highest
level
of
constitutional
protection under the First Amendment, it would likely
be unconstitutional.
71

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 72 of 141

commercial

speech

transaction,

such

is
as

speech
a

for a product or service.

proposing

run-of-the-mill

a

commercial

advertisement

Bolger v. Young Drug Prods.

Corp., 463 U.S. 60, 66 (1983) (quoting Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425
U.S., at 762, quoting Pittsburgh Press Co. v. Human
Relations Comm'n, 413 U.S. 376, 385 (1973)).

See also

City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410, 423 (1993) (citing Bd. of Trustees of State Univ.
of N.Y. v. Fox, 492 U.S. 469, 473-74 (1989)) (referring
to speech that “propose[s] a commercial transaction” as
“the test for identifying commercial speech”) (italics
added and citations omitted)).

The Supreme Court has

also defined commercial speech as “‘expression related
solely to the economic interests of the speaker and its
audience.’”

Edward Lewis Tobinick, MD, 848 F.3d at 950

(quoting Cent. Hudson Gas & Elec. Corp., 447 U.S. at
561).
SPLC’s Hate Map and “hate group” designations do
not

meet

the

definition

of

72

commercial

speech

under

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 73 of 141

either of these tests.

Based on the allegations in the

complaint, neither the Hate Map nor the “hate group”
designations

propose

a

commercial

transaction.

Nor

does the complaint plausibly allege that SPLC’s Hate
Map and its “hate group” designations are “expression
related solely to the economic interest of the speaker
and its audience.”
a

“fundraising

that

SPLC’s

economic.

While describing SPLC’s Hate Map as

tool,”

the

interest

complaint

in

the

does

not

allege

Map

is

solely

Hate

On the contrary, the complaint alleges that

SPLC wants to shut “hate groups” down.

Nor does the

Hate Map constitute expression related solely to the
economic interests of SPLC’s audience.

As alleged in

the complaint, the audience for the Hate Map includes
government agencies that seek information about “hate
groups;”

presumably

these

agencies’

interest

in

the

Hate Map is not solely or even primarily economic, but
instead

is

an

interest

in

law

enforcement.

Furthermore, the complaint alleges that SPLC has placed
the Hate Map on its public website, where the audience

73

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 74 of 141

presumably includes individuals who are concerned about
or

interested

reasons.

in

“hate

groups”

for

non-economic

Thus, the Hate Map does not constitute core

commercial speech.
Coral

Ridge

argues

that

the

Hate

Map

and

“hate

group” designations are commercial speech because (1)
they are used to promote SPLC’s ‘goods and services’;
and (2) because SPLC uses the Hate Map and related
designations as a tool in fundraising appeals, and has
raised millions of dollars as a result.

Based on these

allegations, the court will assume that SPLC’s Hate Map
has an economic element.

But that does not resolve the

issue.
In looking at speech advancing a mix of economic
and

other

Court’s

important

approach

societal

has

varied

interests,
based

nature of the speech in question.”

on

the

“the

Supreme

essential

Gordon & Breach

Sci. Publishers S.A., 859 F. Supp. at 1540.

In Bolger

v. Youngs Drug Prod. Corp., the defendant contraceptive
company

mailed

informational

74

pamphlets

about

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 75 of 141

contraceptives
consumers;

and

these

venereal

pamphlets

disease

mentioned

directly

the

defendant’s

products while discussing the broader issues.
60 (1983).
pamphlets

to

463 U.S.

The defendant company conceded that the
were

advertisements

for

its

products,

but

argued that the pamphlets were nonetheless entitled to
the

highest

Amendment

level

because

of
they

protection
addressed

under
the

the

public

First
debate

about contraception.

However, the Court held that the

pamphlets

commercial

were

“[a]dvertisers

should

not

be

speech,
permitted

to

because
immunize

false or misleading product information from government
regulation
issues.”

simply

by

including

references

to

public

Id. at 68.

In contrast, in a series of cases, the Court has
applied the highest level of First Amendment protection
to charitable fundraising, because such solicitations
are ordinarily intertwined with speech on matters of
public concern.
for

a

Better

In Village of Schaumburg v. Citizens

Environment,

75

444

U.S.

620

(1980),

the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 76 of 141

Court

invalidated

door-to-door
charitable

a

local

solicitation

organizations

ordinance
of

that

prohibiting

contributions

do

not

use

a

by

certain

percentage of their receipts for charitable, as opposed
to administrative, purposes.
that

the

law

did

not

The municipality argued

violate

the

First

Amendment

because such charitable solicitation constitutes merely
commercial speech.

The Court rejected this argument,

finding that solicitations “involve a variety of speech
interests ... that are within the protection of the
First

Amendment,”

and

with

as

commercial

Because

“purely
the

solicitation

therefore

ordinance
by

have

not

speech.”

at

632.
ban

that

Id.

dealt

potentially

would

“organizations

been

are

primarily

engaged in research, advocacy, or public education and
that

use

their

own

paid

staff

to

carry

out

these

functions as well as to solicit financial support,” id.
at

636-637,

the

Court

applied

exacting

struck down the ordinance as overbroad.

scrutiny

and

See id. at 637

(noting that the statute must be “narrowly drawn” to

76

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 77 of 141

serve

village’s

interests

and

cannot

“unnecessarily

interfer[e] with First Amendment freedoms”).

See also

Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S.
947 (1984) (applying exacting First Amendment scrutiny
in striking down a statute regulating fundraising by
charitable organizations because it was not narrowly
tailored to advance the municipality’s interests); id.
at 967, and n. 16 (referring to “the law as ‘a direct
restriction on the amount of money a charity can spend
on fundraising activity,” and “a direct restriction on
protected First Amendment activity”).
The

Court

again

struck

down

a

law

regulating

solicitation by charitable organizations in Riley v.
Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S.
781, 796 (1988).

The law at issue defined reasonable

fees for professional fundraisers, prohibited them from
soliciting

without

a

license,

and

required

them

to

disclose the amount they turned over to charities in
the previous year.

There, the Court again rejected the

idea that charitable solicitations--even when conducted

77

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 78 of 141

by a professional fundraiser--should be subjected to a
reduced level of scrutiny as commercial speech.

The

Court reasoned that “solicitation is characteristically
intertwined

with

informative

and

perhaps

persuasive

speech ..., and ... that without solicitation the flow
of such information and advocacy would likely cease.”
Id.

at

796

(quoting

Munson,

467

U.S.

(quoting Schaumburg, 444 U.S. at 632).

at

959–960

The Court held

that arguably commercial speech does not “retain[] its
commercial

character

when

it

is

inextricably

intertwined with otherwise fully protected speech. ...
Where ... the component parts of a single speech are
inextricably

intertwined,

we

cannot

parcel

out

the

speech, applying one test to one phrase and another
test to another phrase. Such an endeavor would be both
artificial

and

impractical.

Therefore,

test for fully protected expression.”

we

apply

our

Id.

The speech alleged in this case is clearly more
akin to the speech deemed fully protected expression in
the charitable fundraising cases than to the disguised

78

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 79 of 141

commercial advertising by a pharmaceutical company at
issue in Bolger.
fee

generating

Although the alleged fundraising and
aspects

of

SPLC’s

use

of

the

“hate

group” designations reflect economic interests, based
on the allegations of the complaint, this economically
motivated

speech

is

“inextricably

intertwined”

with

informative and persuasive speech on matters of public
concern,

and

therefore

is

entitled

to

the

highest

level of protection under the First Amendment, not the
lower

level

of

protection

assigned

to

commercial

speech.
In

addition

to

its

alleged

use

in

fundraising,

Coral Ridge alleges that SPLC uses the Hate Map to
promote its trainings, for which Coral Ridge alleges
government agencies pay a fee, and that SPLC has sold
the Hate Map and associated “hate group” designations
to AmazonSmile and Guidestar USA.

This does not change

the court’s conclusion that SPLC’s use of the Hate Map
and “hate group” designation is not commercial speech.
Assuming

the

truth

of

the

79

allegations

that

SPLC

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 80 of 141

generates fees from trainings and has sold the contents
of the Hate Map to other organizations, SPLC’s receipt
of fees does not convert the Hate Map into commercial
speech under the Lanham Act. “The fact that expressive
materials

are

sold

does

not

diminish

the

degree

of

protection to which they are entitled under the First
Amendment.”

ETW Corp. v. Jireh Pub., Inc., 332 F.3d

915, 924–25 (6th Cir. 2003) (citing City of Lakewood v.
Plain

Dealer

(1988)).

In

Publ'g
this

Co.,

486

U.S.

750,

sense,

the

SPLC

Hate

756
Map

n.
is

5
no

different than an article in a magazine or newspaper,
or

a

product

earlier,

review

“magazines

in

Consumer

and

Reports.

newspapers

As

noted

often

have

commercial purposes, but those purposes do not convert
the individual articles within these editorial sources
into

commercial

speech

subject

to

Lanham

Act

liability.” Edward Lewis Tobinick, MD, 848 F.3d at 952
(citing Farah v. Esquire Magazine, 736 F.3d 528, 541
(D.C. Cir. 2013); Hoffman v. Capital Cities/ABC, Inc.,
255 F.3d 1180, 1186 (9th Cir. 2001)).

80

Furthermore, the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 81 of 141

fact that SPLC has used the Hate Map to promote its
Hate-Map-based
does

not

trainings

convert

it

and

into

informational

commercial

Hoffman, 255 F.3d at 1186.

services

speech.

See

The allegation that SPLC

generates fees from trainings of government agencies
based on the contents of the Hate Map and the fact that
organizations may have paid for the content does not
convert the Map into commercial speech.

ii. Speech for the purpose of influencing consumers to
buy defendant’s goods or services
The third requirement of “commercial advertising or
promotion”

is

challenged

speech

consumers

to

showing

buy

the

with

defendant

“the

purpose

defendant’s

goods

engaged
of
or

in

the

influencing
services.”

Edward Lewis Tobinick, MD, 848 F.3d at 950.

Coral

Ridge has failed to plausibly plead this element of the
test.
The allegations of the amended complaint do not
support Coral Ridge’s argument that SPLC designated it
as

a

“hate

group”

with

the
81

purpose

of

influencing

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 82 of 141

consumers to buy SPLC’s produce.

The amended complaint

clearly alleges that SPLC’s “very purpose for placing
the Ministry on the Hate Map was to harm the reputation
of the Ministry as to lower it in the estimation of the
community and to deter third persons from associating
or dealing with the Ministry. Specifically, SPLC was
attempting to dissuade people and organizations from
donating to the Ministry and to ultimately destroy the
Ministry.”

Am. Compl. (doc. no. 40) at ¶ 95; see also

id. at ¶¶ 79, 106 (alleging that “SPLC” has publicly
stated that its aim is to destroy those organizations
it labels at “hate groups”).
In the Lanham Act section of the complaint, Coral
Ridge changes this allegation somewhat by stating that
“SPLC’s purpose in placing the Ministry’s trademark ...
on its Hate Map and in SPLC’s hate group-based goods
and services is to influence the relevant consumers to
buy SPLC’s goods and services, in advancement of SPLC’s
publicly stated goal of destroying the Ministry and the
other organizations that SPLC has placed on its Hate

82

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 83 of 141

Map.” Id. at ¶ 139 (emphasis added).

The allegation

that SPLC placed Coral Ridge’s trademark on the Hate
Map “to influence the relevant consumers to buy SPLC’s
goods

and

legal

conclusion

claim;

the

services”

court

does

and

an

will

nothing
element
not

more
of

credit

allegation without supporting facts.
allegation
destroying

makes
those

commercial gain.

clear
it

that

SPLC’s

considers

than

the
this

state

Lanham

a

Act

conclusory

In addition, the
ultimate

“hate

goal

groups,”

is
not

In the next sentence of the amended

complaint, Coral Ridge goes on to explain the basis for
that statement:
“SPLC uses the Hate Map and hate group based
designations to promote its goods and services,
include [sic] ‘investigative reports,’ training
programs (used by U.S. law enforcement ... and
private organizations), ‘key intelligence,’ and
‘expert’ analysis.
Through promotion of the
Hate Map and hate group designations, the
groups listed on the Map becomes an object of
scorn and disdain for SPLC’s audience, which
includes
individuals
and
organizations
interested in charitable giving.
Through the
use
of
the
Hate
Map
and
hate
group
designations, SPLC focuses attention on these
groups to convince its audience that these
groups must be destroyed.
SPLC then markets
its Hate Map-infused produces to this audience
83

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 84 of 141

for the purpose of further marginalizing and
isolating the listed ‘hate groups,’ potentially
leading to the destruction of the listed
organizations,
... which is SPLC’s ultimate
goal.”
Id.

at

¶

140.

With

the

initial

allegation

taken

together with the explanatory paragraph that follows,
the clear import is that SPLC’s goal in designating
Coral Ridge as a “hate group” is shutting it down--not
selling goods and services to relevant consumers.

iii. Dissemination to the
Relevant Purchasing Public
The

final

part

of

the

test

is

that

“the

representations ... must be disseminated sufficiently
to

the

relevant

purchasing

‘advertising’

or

Edward

Tobinick,

Lewis

allegations

of

‘promotion’

the

MD,

public

848

complaint

constitute

that

within

to

industry.”

F.3d
are

at

950.

insufficient

The
to

establish this element of commercial advertising and
promotion.
Applying

this

factor,

“breadth

of

although important, is not dispositive.
84

dissemination,
Rather, the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 85 of 141

primary

focus

is

the

degree

to

which

the

representations in question explicitly target relevant
consumers.”

Gordon and Breach Sci. Publishers. S.A. v.

Am. Inst. of Physics, 905 F. Supp. 169, 182 (S.D.N.Y.
1995).To

apply

complaint,

the

this

test

court

to

must

the

allegations

first

define

purchasing public and industry.

the

of

the

relevant

Coral Ridge attempts

to define the “relevant purchasing public” as “those
people

and

charitable

those
giving

organizations
to

tax-exempt

that

engage

in

organizations.”

Am.

Compl. (doc. no. 40) at ¶ 142; Pl.’s Resp. to SPLC’s
Mot.

to

Dismiss

(doc.

no.

51)

at

44.

As

for

the

relevant industry, Coral Ridge takes issue with SPLC’s
argument

that

the

relevant

industry

is

Christian

television ministries, arguing that it also engages in
“publishing

and

other

activities

related

to

its

mission,” Pl.’s Resp. to SPLC’s Mot. to Dismiss (doc.
no. 51) at 44, but it does not specify its industry.
Instead,

it

implies

that

the

85

relevant

industry

is

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 86 of 141

comprised

of

tax

exempt

organizations.

See

id.

at

43-44.
If

the

relevant

purchasing

public

and

industry

could be defined at such a high level of generality,
the test would be meaningless.

The world of non-profit

organizations is almost, if not just, as varied as the
world

of

publishers

for-profit
of

organizations:

scientific

it

journals,

ranges

to

from

health-care

providers, to vocational-training providers, religious
organizations, atheist organizations, and organizations
that

promote

the

arts.

It

would

make

no

sense

to

consider the relevant purchasing public for all these
organizations to be the same simply because they are
all non-profits, just as it would make no sense to
consider the relevant purchasing public the same for a
subway-car manufacturer and a health-food store simply
because they are both for-profit organizations.
there

may

be

some

minor

overlap

in

the

While

purchasing

public for each, that makes little difference to the
determination

of

“the

degree

86

to

which

the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 87 of 141

representations in question explicitly target relevant
consumers.”

Gordon and Breach Sci. Publishers, 905 F.

Supp. at 182.
Based

on

the

allegations

of

the

complaint,

the

court considers Coral Ridge’s industry to be Christian
television and media.

While Coral Ridge has alleged

that SPLC has broadly disseminated the Hate Map through
its website, fundraising efforts, and promotion of its
training

for

government

agencies,

Coral

Ridge

has

failed to allege any specific facts showing that SPLC
has disseminated its Hate Map, and more specifically,
its designation of D. James Kennedy Ministries as a
“hate group,” within the relevant purchasing public for
Christian television and media.25

Nor is there any

25. It bears noting that Coral Ridge has not
alleged a decline in sales or donations that could
suggest
dissemination
to
the
relevant
purchasing
public. See Lexmark Int’l, Inc., 572 U.S. at 133 (“[A]
plaintiff suing under § 1125(a) ordinarily must show
economic or reputational injury flowing directly from
the deception wrought by the defendant's advertising;
and that that occurs when deception of consumers causes
them to withhold trade from the plaintiff.”) (emphasis
added). However, as § 1125(a) authorizes relief for
87

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 88 of 141

allegation that the dissemination of the “hate group”
designation “explicitly target[s] relevant consumers.”
Gordon and Breach Sci. Publishers S.A., 905 F. Supp. at
182.

Based on the allegations, it appears that some of

Coral Ridge’s target consumers may incidentally come
across the Hate Map and “hate group” designation, but
there

is

no

dissemination

indication
are

that

targeted

SPLC’s

towards

Christian television and media.

methods

of

consumers

of

As a result, Coral

Ridge has failed to plead that SPLC used the Hate Map
and “hate group” designation in commercial advertising
and promotion.
Because

it

representation

failed
or

to

allege

description

of

that

SPLC

“fact”

and

made
that

a
it

made such a statement in “commercial advertising and
promotion,”

Coral

Ridge

has

not

plausibly

pled

that

SPLC a viable claim for false advertising under the
Lanham Act.

solely anticipated injury, the lack
allegation is not fatal to its claim.
88

of

such

an

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 89 of 141

b. False-Association Claim
Coral

Ridge

also

brings

a

claim

for

false

association pursuant to 15 U.S.C. § 1125(a)(1)(A).

In

connection with this claim, Coral Ridge alleges that
SPLC published its trademarked name, “D. James Kennedy
Ministries,”
Anti-LGBT

on

hate

the

Hate

group,”

Map,

and

designating

that

SPLC

it

as

published

an

this

“hate group” designation on its website, in fundraising
materials, and in its reports, trainings, informational
materials, intelligence, and analysis.
¶¶ 117, 121.

Am. Compl. at

Coral Ridge argues that SPLC’s use of its

trademark

on

the

trademark

“with

Hate

the

Map

falsely

Neo-Nazi’s,

skin

associates

its

heads,

the

and

other actual terrorist organizations that are listed on
the map.”

Pl.’s Resp. to SPLC’s Mot. to Dismiss (doc.

no. 51) at 50-51.

For the reasons discussed below,

this claim must be dismissed.
To

prevail

on

a

false-association

claim

under

§ 1125(a)(1)(A), a plaintiff must establish that the
defendant, “in connection with goods and services

89

...

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 90 of 141

used

in

device,

commerce
or

any

any

word,

combination

term,

name,

thereof,

symbol,

or

any

or

false

designation of origin, false or misleading description
of fact, or false or misleading representation of fact,
which

... is likely to cause confusion, or to cause

mistake,

or

to

deceive

as

to

the

affiliation,

connection, or association of such person with another
person, or as to the origin, sponsorship, or approval
of his or her goods, services, or commercial activities
by another person.”

15 U.S.C. § 1125(a)(1)(A).

The

court assumes for the purposes of discussion that Coral
Ridge

has

adequately

pleaded

that

SPLC

used

Coral

Ridge’s trademark in commerce in connection with goods
and services.
To survive the motion to dismiss, Coral Ridge must
plausibly plead that the use of its trademark created a
“likelihood of confusion” in consumers.26

As

noted

26. In the ordinary false-association case, in
which in the plaintiff contends that the defendant used
plaintiff’s trademark to sell its own products, courts
apply a multi-factor test to determine the likelihood
of confusion, which weighs factors such as the
90

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 91 of 141

above, Coral Ridge contends that, by designating its
trademarked name as a “hate group” on the Hate Map,
SPLC created a likelihood of confusion in the public as
to Coral Ridge’s “association” with the other groups
listed on the Map.

Thus, the court begins its analysis

by determining the meaning of the phrase “likelihood of
confusion as to the
As

discussed

Ridge’s

... association” in the statute.
at

trademark

length
to

above,

criticize

SPLC

used

Coral

its

stance

on

homosexuality; by doing so, it engaged in speech on a
matter

of

Amendment’s
construed

public

concern--a

protections.
narrowly

to

core

The
avoid

protected by the First Amendment.

focusof

Lanham

the

Act

impinging

on

First

must

be

speech

Univ. of Alabama Bd.

of Trustees v. New Life Art, Inc., 683 F.3d 1266, 1277
(11th Cir. 2012).

As a result, courts applying the

similarity of the plaintiff’s mark and the mark used by
the defendant.
See Conagra, Inc. v. Singleton, 743
F.2d 1508, 1514 (11th Cir. 1984). Because there is no
allegation here that SPLC used Coral Ridge’s trademark
in an effort to pass its goods and services off as
those of Coral Ridge, this test is of little
assistance.
91

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 92 of 141

Lanham Act must carefully “weigh the public interest in
free expression against the public interest in avoiding
consumer confusion.”

Id. (quoting Cliffs Notes, Inc.

v. Bantam Doubleday Dell Pub. Grp., Inc., 886 F.2d 490,
494

(2d

Cir.

1989)

(internal

quotations

omitted).

Ordinary applications of trademark law--such as where a
seller uses another’s trademark to trick consumers into
buying his own goods--do not risk the suppression of
highly protected speech.

However, when trademark law

is

the

used

“to

obstruct

conveyance

of

ideas,

criticism, comparison, and social commentary,” the risk
of such suppression is great.
N.A.A.C.P.,

786

F.3d

316,

Radiance Found., Inc. v.
321–22

(4th

Cir.

2015).

Conflict with the First Amendment is avoided “so long
as [interpretation of] the Act hews faithfully to the
purposes for which it was enacted.”

Id. at 322 (citing

Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900
(9th Cir. 2002)).
The trademark protections in § 1125(a) “exist to
protect consumers from confusion in the marketplace.”

92

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 93 of 141

Radiance

Found.,

786

F.3d

316

at

321.

“Trademark

infringement laws limit the ability of others to use
trademarks or their colorable imitations in commerce,
so

that

consumers

may

purchasing decisions.”
for

trademark

rights

of

laws

critics

to
and

rely
Id.

on

the

marks

to

make

Congress “did not intend

impinge

the

First

commentators.”

Amendment

Id.

at

321

(quoting Lamparello v. Falwell, 420 F.3d 309, 313 (4th
Cir.

2005)).

designed

to

Furthermore,
protect

§ 1125(a)(1)(A)

mark

holders

from

“is

not

consumer

confusion about their positions on political or social
issues.”

Radiance Found., 786 F.3d at 327. “Actual

confusion

as

to

a

non-profit's

mission,

tenets,

and

beliefs is commonplace, but that does not transform the
Lanham Act into an instrument for chilling or silencing
the speech of those who disagree with or misunderstand
a

mark

holder's

positions

or

views.”

Id.

at

327–28

(citing Rogers v. Grimaldi, 875 F.2d 994, 1001 (2d Cir.
1989)).

93

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 94 of 141

Mindful of these principles and purposes, the court
finds that § 1525(a)(1)(A)’s requirement of likelihood
of confusion as to the “association of a person with
another” means confusion as to whether the seller or
the trademark holder is associated with another person
or

organization

by

virtue

of

a

legal

or

other

relationship--not whether the trademark holder belongs
in the same category as, or might be associated in some
other vague sense with, another person or organization.
This reading is consistent with the intent of Congress:
It would cover the use of a trademark that falsely
insinuates that a seller has a relationship with the
trademark

holder

in

order

to

sell

products.

Furthermore, if “association” were defined to mean any
type of mental association between the trademark holder
and

another

person

or

organization,

its

potential

applications could be limitless and far afield of the
purpose of the Act.

For example, if “association” were

so broadly defined, a health food producer could sue
for false association because a supermarket advertised

94

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 95 of 141

the health food company’s products next to those of a
company

that

produces

junk

food

on

the

theory

that

consumers might falsely “associate” the junk food with
the health food company’s trademark.
a

broad

interpretation

of

Furthermore, such

“association”

could

be

applied to a wide range of protected speech, and would
allow

companies

to

shield

themselves

from

valid

criticism, while doing nothing to advance the purposes
of the Lanham Act.

See CPC Int'l, Inc. v. Skippy Inc.,

214 F.3d 456, 462 (4th Cir. 2000) (quoting New Kids on
the Block v. News Am. Publ'g, Inc., 971 F.2d 302, 307
(9th Cir. 1992)) (“‘Much useful social and commercial
discourse would be all but impossible if speakers were
under threat of an infringement lawsuit every time they
made reference to a person, company or product by using
its trademark.’”).
Applying

the

proper

definition

of

“association,”

the court holds that Coral Ridge has not alleged a
likelihood of confusion as to its “association” with
the Ku Klux Klan and other criminal and violent hate

95

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 96 of 141

groups.

Nothing in the complaint suggests that the

public is likely to be confused into believing, based
on SPLC’s use of Coral Ridge’s trademark on the Hate
Map and in its “hate group” designation, that Coral
Ridge has an actual relationship any other group on the
Map, let alone the criminal and violent ones.27
In

sum,

“likelihood

Coral
of

Ridge

has

confusion”

false-association claim.

failed

to

requirement

allege

the

for

its

The claim must be dismissed.

C. Title II Discrimination Claim
Against the Amazon Defendants
Coral Ridge claims that, by denying it access to
the AmazonSmile charitable-giving program, Amazon and
AmazonSmile

violated

the

ban

on

religious

discrimination in places of public accommodation that
is codified in Title II of the Civil Rights Act of
1964.

Title

II

provides:

“All

persons

shall

be

27. For example, there are no allegations that SPLC
represents that the groups on the Map work with each
other.
96

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 97 of 141

entitled to the full and equal enjoyment of the goods,
services,

facilities,

privileges,

advantages,

and

accommodations of any place of public accommodation, as
defined

in

this

section,

without

discrimination

or

segregation on the ground of race, color, religion, or
national origin.”

42 U.S.C. § 2000a(a).

Applying the alleged facts to Title II, Coral Ridge
asserts that its theory of liability is as follows: the
Amazon defendants are places of public accommodation
subject to Title II.
¶ 150.

See Am. Compl. (doc. no. 40) at

One of the “service[s],” “privilege[s],” and

“advantage[s]” that the Amazon defendants provide as
places
receive

of

public

accommodation

charitable

program.

Id.

excluded

Coral

privilege,

at

and

donations
¶¶ 14,

Ridge

the

The

AmazonSmile

Amazon

accessing

advantage--that

ability

the

through

160.

from

is

is,

to

defendants

that
from

service,
receiving

donations through the AmazonSmile program--because SPLC
classified
¶¶ 23-24.

Coral
The

Ridge
“hate

as

a

group”

97

“hate

group.”

designation

by

Id.

at

SPLC

is

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 98 of 141

based on Coral Ridge “oppos[ing] homosexual conduct.”
Id.

at

¶¶ 61,

154.

Coral

Ridge’s

opposition

to

homosexual conduct, in turn, is based on its religious
beliefs.

Id. at ¶ 155.

In sum, Coral Ridge’s theory is that, by excluding
it from receiving charitable donations due to its “hate
group” designation--which SPLC based on Coral Ridge’s
religious opposition to homosexual conduct--the Amazon
defendants discriminated against Coral Ridge based on
its religion, in violation of Title II.
To

prevail,

Coral

successive hurdles.
that

the

Amazon

Ridge

must

overcome

three

First, it must plausibly allege

defendants

operate

as

a

“place

of

public accommodation” within the meaning of Title II.
42 U.S.C. § 2000a(a).

Second, it must plausibly allege

that its exclusion from receiving donations through the
AmazonSmile

program

constituted

the

denial

of

“services,” “privileges,” or “advantages,” etc., of the
Amazon defendants as places of public accommodation.
Id.

Third, it must plausibly allege that the denial of

98

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 99 of 141

such services, privileges, advantages, etc. amounted to
“discrimination ... on

the

ground

of ... religion.”

Id.
As

explained

below,

Coral

Ridge’s

claim

fails.

Even if it were assumed that the Amazon defendants are
places

of

public

accommodation

subject

to

Title

II,

seeking to receive donations through the AmazonSmile
program does not qualify as a service, privilege, or
advantage,

etc.

protected

by

anti-discrimination prohibition.
Amazon

defendants

donations

limit

exclusively

the

statute’s

This is because the

the

ability

to

26

to

U.S.C.

receive

such

§ 501(c)(3)

organizations and therefore do not make that ability
open to the public.

Moreover, an alternative ground

for dismissing the claim is that Coral Ridge has not
plausibly

alleged

that

the

Amazon

discriminated against it based on religion.

99

defendants

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 100 of 141

1. Public Accommodation
The parties dispute whether the Amazon defendants
are “place[s] of public accommodation” under Title II
and are thus subject to the statute’s requirements.
U.S.C.

§ 2000a(a)-(b).

define

a

certain

“place

of

Although

public

establishments

Title

II

accommodation,”

that

qualify

does
it
as

42
not

lists
such.

Specifically, § 2000a(b) provides that “[e]ach of the
following establishments which serves the public is a
place

of

public

accommodation ... if

its

operations

affect commerce ...":
“(1)
[A]ny
inn,
hotel,
motel,
or
other
establishment
which
provides
lodging
to
transient guests, other than an establishment
located within a building which contains not
more than five rooms for rent or hire and which
is actually occupied by the proprietor of such
establishment as his residence;
“(2) any restaurant, cafeteria, lunchroom,
lunch counter, soda fountain, or other facility
principally
engaged
in
selling
food
for
consumption on the premises, including, but not
limited to, any such facility located on the
premises of any retail establishment; or any
gasoline station;

100

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 101 of 141

“(3) any motion picture house, theater, concert
hall, sports arena, stadium or other place of
exhibition or entertainment; and
“(4)
any
establishment
(A)(i)
which
is
physically located within the premises of any
establishment
otherwise
covered
by
this
subsection, or (ii) within the premises of
which is physically located any such covered
establishment, and (B) which holds itself out
as
serving
patrons
of
such
covered
establishment.”
The scope of what constitutes a place of public
accommodation “is to be liberally construed and broadly
read” with “open minds attuned to the clear and strong
purpose of” Title II.
Inc.,

394

F.2d

342,

Miller v. Amusement Enters.,
349

(5th

Cir.

1968).28

The

“overriding purpose” of Title II is to eliminate “the
daily

affront

and

discriminatory

denials

ostensibly

to

open

the

humiliation
of

access

general

involved
to

public.”

in

facilities
Daniel

v.

Paul, 395 U.S. 298, 307-08 (1969).

28. In Bonner v. Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all the decisions of the
former Fifth Circuit Court of Appeals handed down prior
to the close of business on September 30, 1981.
101

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 102 of 141

The Amazon defendants contend that their websites
are

not

places

of

public

accommodation

within

the

meaning of Title II because the statute applies to only
physical facilities.
that

the

Amazon

By contrast, Coral Ridge alleges

defendants

are

places

of

public

accommodation because they fall under the category of
places

of

“exhibition

§ 2000a(b)(3).

or

entertainment.”

42

U.S.C.

Coral Ridge further points out that the

Amazon defendants are “encroaching on entire industries
in

which

including

brick

and

businesses

mortar

traditionally

provisions of Title II.”
¶ 18.

businesses

have

covered

thrived,
by

the

Am. Compl. (doc. no. 40) at

Because Amazon has replaced traditional brick

and mortar establishments covered by Title II with a
primarily virtual, rather than physical, marketplace,
and because Amazon’s services are not entirely virtual,
but include physical stores and operations, Coral Ridge
argues

that

the

Amazon

defendants

should

also

be

covered by Title II.29

29. Coral Ridge alternatively argues that, even if
102

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 103 of 141

Whether

internet-based

defendants

in

businesses--or

particular--are

precluded

the

Amazon

from

being

places of public accommodation under Title II is an
issue of first impression.
that.

It is a difficult one, at

On the one hand, the statute’s use of the term

“place”

and

structures,

references
and

to

“physically

“facilit[ies],”
located”

physical

establishments

suggest that “places of public accommodation” might be
limited to “actual, physical places and structures.”
Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532,
540-43

(E.D.

Va.

2003)

“AOL’s

chat

rooms

and

constitute

a

‘place

(Ellis,
other

of

J.)

online

public

(concluding
services

accommodation’

that

do

not

under

Title II” because they do not “consist of, or have a
clear

connection

structures”).

to,

actual

physical

facilities

or

On the other hand, the need to construe

Title II broadly, in light of its purpose, see Daniel,
AmazonSmile is not considered a place of public
accommodation, the AmazonSmile program is still covered
as a “service,” “privilege,” and “advantage” of Amazon,
which is a place of public accommodation.
See Pl.’s
Resp. to Amazon Defs.’ Mot. to Dismiss (doc. no. 52) at
5-6.
103

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 104 of 141

395 U.S. at 307, suggests that denying access to even
an entirely virtual marketplace based on a protected
characteristic might result in the “the daily affront
and humiliation” that the drafters of Title II sought
to prevent, id. at 307-308.
Ultimately, the court need not resolve whether the
Amazon defendants are places of public accommodation
within

the

meaning

of

Title

II.

Even

if

it

were

assumed that, as Coral Ridge alleges, they are covered
by

the

statute

as

places

of

“exhibition

or

entertainment,” the Title II claim would still fail for
two independently sufficient reasons discussed below.

2. Denial of Services, Privileges, or Advantages
Assuming,
defendants

are

without
places

deciding,
of

public

that

the

Amazon

accommodation,

the

court turns next to the question whether Coral Ridge
plausibly alleges that it has been denied “the full and
equal

enjoyment

privileges,

of

the

advantages,

goods,
[or]

services,

facilities,

accommodations”

of

the

Amazon defendants as places of public accommodation.
104

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 105 of 141

§ 2000a(a).

Coral

Ridge

argues

that

the

Amazon

defendants have denied it the “service,” “privilege,”
or “advantage” of receiving money donations through the
AmazonSmile program.30

So, the issue to resolve here is

whether

protection

Title

II’s

of

the

“enjoyment

of ... services,” “privileges,” and “advantages” of a
place of public accommodation encompasses the ability
to receive such donations.

In other words, is Coral

Ridge within the class of plaintiffs that Title II is
designed to protect?
The court begins its analysis with two premises.
First,

Title

II

is

“not

limited

to

proscribing

discrimination only as to the enjoyment” of the goods,
services, privileges, etc. that “make the establishment
a place of public accommodation.”

United States v.

DeRosier,

473

F.2d

Cir.

DeRosier,

the

court

749,

752

held

(5th

that

Title

1973).
II

not

In
only

protected access to the juke box, shuffle board, and
30. Coral Ridge does not allege that it was
prevented from making donations to organizations that
are eligible to participate in the AmazonSmile program.

105

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 106 of 141

pool table that converted the bar into a “place of
entertainment”; rather, it protected the enjoyment of
all the bar’s goods, services, etc.

See id. at 751-52.

Applying this principle here, the court concludes that
Title

II’s

enjoyment

ban
of

on

discrimination
video,

the

extends
and

audio,

beyond

book

the

selling,

downloading, and streaming activities that Coral Ridge
asserts--and

this

court

assumes,

arguendo--makes

the

Amazon defendants public accommodations as “place[s] of
exhibition or entertainment.”

§ 2000a(b)(3).

The second premise is that “it is the traditional
understanding

of

public-accommodation

laws

that

they

provide rights for customers,” rather than, say, the
providers of goods or services.
Martin,

532

dissenting)

U.S.

661,

(citing

692

Hurley

PGA Tour, Inc. v.
(2001)

v.

(Scalia,

Irish-American

J.,
Gay,

Lesbian and Bisexual Grp. of Bos., 515 U.S. 557, 571
(1995)

and

Heart

of

Atlanta

States, 379 U.S. 241 (1964)).
pointed

out

in

Hurley,

106

Motel,

Inc.

v.

United

As the Supreme Court
the

history

of

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 107 of 141

public-accommodation laws can be traced to the “common
law, [under which] innkeepers, smiths, and others who
‘made

profession

of

a

public

employment,’

were

prohibited from refusing, without good reason, to serve
a

customer.”

Moreover,

in

upholding

the

515

U.S.

Heart

at

of

571.

(emphasis

Atlanta,

constitutionality

a

1964

of

Title

added).
decision
II,

the

Supreme Court found that the “[b]asis of Congressional
[a]ction”
Congress
customers

to
of
of

Congressional

pass

Title

II

was

discrimination
hotels.

See

testimony

the

against
379

evidence
potential

U.S.

included

at

that

before
black

252.

This

“Negroes

in

particular have been the subject of discrimination in
transient

accommodations,

having

to

travel

great

distances [to] secure the same; that often they have
been unable to obtain accommodations and have had to
call upon friends to put them up overnight; and that
these conditions had become so acute as to require the
listing of available lodging for Negroes in a special
guidebook which was itself dramatic testimony to the

107

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 108 of 141

difficulties
252-53

(internal

omitted).
the

Negroes

encounter
citations

in

travel.”

and

Id.

quotation

at

marks

Since Title II’s enactment and upholding by

Supreme

Court

in

1964,

the

heartland,

run-of-the-mill Title II cases involve establishments
that refuse to provide their goods, services, etc., to
potential

customers.

See,

e.g.,

Stout

v.

YMCA

of

Bessemer, Ala., 404 F.2d 687, 688-89 (5th Cir. 1968)
(holding that the YMCA violated Title II by refusing to
rent rooms to two black plaintiffs).
Combining these two premises, the court concludes
that

it

plaintiff

is

clear

need

not

that,
be

while

denied

a

the

viable
good,

Title

II

service,

or

privilege, etc. that makes the defendant establishment
a place of public accommodation, see DeRosier, 473 F.2d
at 752, in the typical Title II case, consistent with
the traditional understanding of public-accommodations
laws, he is denied enjoyment of some good, service, or
privilege,

etc.

in

his

capacity

as

a

customer.

Consequently, Coral Ridge’s claim does not fail just

108

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 109 of 141

because the activity at issue--receiving donations--is
different from the activities that Coral Ridge alleges
makes

the

Amazon

defendants

places

of

public

accommodation (book, music, and video sales, streaming,
etc.).

Nevertheless, what remains unclear is whether

Title II’s protections extend to a plaintiff, such as
Coral Ridge, who is seeking to receive donations from a
place of public accommodation, and thus not acting as a
potential “customer” in any ordinary sense of the word.

i.

Caselaw

It is an open question whether Title II covers the
“enjoyment of” goods, services, privileges, etc. by a
plaintiff other than a potential customer of a public
accommodation.

Some

lower

courts

have

held

that

federal public-accommodation laws protect exhibitors at
a safari convention, see Impala African Safaris, LLC v.
Dall. Safari Club, Inc., 2014 WL 4555659, at *6 (N.D.
Tex.

Sept.

physicians

9,

2014)

seeking

(Fish,

J.)

medical-staff

109

(Title

II),

privileges

at

or
a

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 110 of 141

hospital, see Hetz v. Aurora Med. Ctr. of Manitowoc
Cnty., 2007 WL 1753428, at *11-12 (E.D. Wis. June 18,
2007) (Callahan, Jr., M.J.) (Title III of the Americans
with Disabilities Act of 1990); see also Menkowitz v.
Pottstown Memorial Med. Ctr., 154 F.3d 113, 122 (3d
Cir. 1998) (Title III).
held

that

customers

a
or

Conversely, other courts have

public-accommodation
patrons

of

a

public

law

protects

only

accommodation,

not

camp counselors, see Bauer v. Muscular Dystrophy Ass’n,
Inc., 268 F. Supp. 2d 1281, 1291-92 (D. Kan. 2003)
(Brown, J.) (Title III), and that Title II does not
protect taxicab services seeking to “‘provide’ services
at, not merely enjoy the benefits of access to,” a mall
transit station, Gold Star Taxi and Transp. Serv. v.
Mall of Am. Co., 987 F. Supp. 741, 752-53 (D. Minn.
1997)

(Magnuson,

J.).

None

of

these

decisions

is

directly on point, or for that matter, binding.
Of

all

the

existing

caselaw

on

the

issue,

the

Supreme Court decision, PGA Tour, Inc. v. Martin, is
the most instructive as to whether Title II extends

110

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 111 of 141

beyond customers.

532 U.S. at 679-81.

Critically, as

elaborated below, Martin teaches that, regardless of
whether

Coral

Ridge

constitutes

a

customer

in

any

ordinary sense of the word, it is not protected by
Title

II,

through

because

the

the

ability

AmazonSmile

to

program

receive

is

not

a

donations
service,

privilege, etc. that is open to the public.
In

Martin,

deciding--the
Disabilities

the

question
Act’s

Court
whether

confronted--without
the

with

prohibition

analogous

Americans

on

discrimination in public accommodations (Title III of
the

act)

applies

to

only

public accommodations.

“clients

Id. at 679.

or

customers”

of

Although Title III

of the Americans with Disabilities Act and Title II of
the Civil Rights Act of 1964 have their differences,
the

texts

of

the

two

statutes

are

quite

similar.

Mirroring the language of Title II, Title III provides:
“No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of
the

goods,

services,

facilities,

111

privileges,

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 112 of 141

advantages, or accommodations of any place of public
accommodation ... .”
enumerates
entities

a

similar,

that

§ 12181(7),

42 U.S.C. § 12182(a).
yet

qualify

and

as

that,

below,

interpreting

Title

extensive,

“public

like

list

of

accommodations,”

the
III

should

be

Martin, 532 U.S. at 676.

“construed liberally,”
described

more

Title III

Title

As

Martin

explicitly

II,

Court’s
relied

holding

on

its

own

precedent interpreting Title II, which further shows
why

courts’--especially

the

highest

court’s--interpretations of each statute are mutually
relevant and instructive.
The

plaintiff

in

Martin

was

Casey

Martin,

a

professional golfer with a disability that limited his
ability to walk.

He alleged that the PGA Tour violated

Title III of the Americans with Disabilities Act by
prohibiting

him

from

using

a

golf

participating in its golf tournaments.

cart

while

The PGA Tour

conceded that its golf tournaments were conducted at
places

of

public

accommodation.

112

See

id.

at

677.

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 113 of 141

Nonetheless, it argued that Title III did not protect
Martin because he was a competing golfer, rather than a
spectator consuming the entertainment.

See id. at 678.

More specifically, the PGA Tour contended that Title
III “is concerned with discrimination against clients
and customers seeking to obtain goods and services at
places

of

public

accommodation,”

not

a

professional

golfer such as Martin, who “is a provider rather than a
consumer of the entertainment that [the PGA Tour] sells
to

the

public.”

Id.

(internal

quotation

marks

omitted).
The Martin Court did not decide whether Title III
was

limited

to

accommodations,

“clients

and

because

it

customers”

determined

of

public

that

Martin

qualified as a client or customer of the PGA Tour.
at

679-80.

The

Court

explained

that

the

Id.
golf

tournaments offered “at least two ‘privileges’ to the
public--that of watching the golf competition and that
of competing in it.”
during

its

Id. at 680.

tournaments,

the

113

PGA

In other words,
Tour

“may

not

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 114 of 141

discriminate against either spectators or competitors
on the basis of disability.”
The

Court

offered

Id. at 681.

four

interrelated

reasons

why

Martin was a client or customer and thus protected by
Title III.
$ 3,000

First, it highlighted that Martin paid a

entry

for

a

See

tournament.

fee

id.

chance

at

679.

to

compete
Second

in

and

the
most

importantly, the Court stressed that competing in the
PGA

Tour

tournaments

was

a

privilege

members of the general public.”

“available

Id. at 680.

to

As the

Court explained, Martin had sought to gain entry into
the PGA Tour tournament by successfully competing in a
three-stage tournament known as the “Q-School.”
669.
by

“Any member of the public may enter the Q-School

paying

a

$ 3,000

letters of reference
three

Id. at

stages

contestants

of
are

participants.
“conclusion

the

fee

... .”

the

down
Court

consistent

114

and

submitting

Id. at 665.

Q-School,

whittled

Third,
is

entry

with

Through

the

thousands

to

the

emphasized
case

law

two

of

PGA-Tour
that

its

in

the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 115 of 141

analogous context of Title II of the Civil Rights Act
of 1964.”

Id. at 681.

For example, in Daniel v. Paul,

the Court had held that the “definition of a ‘place of
exhibition

or

entertainment,’

as

a

public

accommodation, covered participants ‘in some sport or
activity’ as well as ‘spectators or listeners.’”
(quoting 395 U.S. at 306).

Id.

Fourth and finally, the

court cited Title III’s “expansive purpose.”

Id. at

680.31
Martin’s reasoning shows that Title II does not
cover

Coral

Ridge’s

attempt

through the AmazonSmile program.

to

receive

donations

Crucially, unlike in

Martin, the ability to receive donations through the
AmazonSmile

program

is

not

“a

privilege

that

[the

Amazon defendants] make[] available to members of the
general public.”

Id.

To register to receive donations

through the AmazonSmile program, the entity must, among
31. The Martin Court limited its holding by
clarifying that a “customer” does not encompass
“everyone who seeks a job at a public accommodation,
through an open tryout or otherwise.” 532 U.S. at 680
n.33 (internal quotation marks omitted).
115

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 116 of 141

other

eligibility

requirements,

be

a

§ 501(c)(3)

organization that is located in the United States and
in good standing in the IRS.
40) at ¶ 44.
of

being

See Am. Compl. (doc. no.

Sure, Martin embraced a broad conception

open

to

members

of

the

recognizing the PGA Tour as such.
at

696

(Scalia,

J.,

general

public

by

See Martin, 532 U.S.

dissenting)

(criticizing

that

competing in the Q-School qualifying tournament is “no
more

a

‘privilege’

‘enjoyment’
“open

than

casting

is

for

offered
the
a

for

the

California

movie

or

general
Bar

stage

public’s

Exam”

or

an

production”).

Still, the fact that the AmazonSmile program is limited
to

certain

completely

§ 501(c)(3)

excludes

all

organizations--and

natural

thus

persons--removes

the

program from even Martin’s broad conception of being
“available to members of the general public.”

Id. at

680; see also Gold Star Taxi, 987 F. Supp. at 752-53
(holding that Title II did not cover taxicab services’
access

to

regulations

mall

transit

restricted

station

the

116

right

because
to

municipal

provide

such

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 117 of 141

services in the city, and only a limited number of
qualifying persons and companies were legally able to
provide services to the mall).

The bottom line is that

any good, service, or privilege, etc. that is available
to

only

a

specific

type

of

legal

entity--and

not

directly to human beings--is not open to the public for
Title II purposes.
Additionally, this case is distinguishable from the
Daniel
money

decision

on

donations

which

through

Martin
the

relied.

AmazonSmile

Receiving
program

is

nothing like participating in a sport or other activity
while

visiting

amusement

park

an
with

open-to-the-public
swimming,

boating,

“232-acre

sun

bathing,

picnicking, miniature golf, dancing facilities, and a
snack bar.”
noted

above,

Daniel, 395 U.S. at 301.32
the

program

is

limited

And because, as
to

§ 501(c)(3)

32. This case also differs from Martin because
there is no allegation that Coral Ridge would need to
pay any fee to participate in the AmazonSmile program.
However, this distinction is not dispositive to the
court’s ruling here, because making a payment is not a
requirement for being protected by public accommodation
laws.
117

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 118 of 141

organizations
protecting

and

Coral

thus
Ridge

not

open

to

the

public,

here

would

not

further

the

“overriding purpose of Title II” recognized in Daniel:
to remove “the daily affront and humiliation involved
in

discriminatory

denials

of

access

ostensibly open to the general public.”

to

facilities

Id. at 307-08

(emphasis added).
To summarize, the Martin Court refused to foreclose
the possibility of a federal public-accommodations law
protecting

noncustomers,

conception

of

a

and

protected

embraced

“customer”

a
that

capacious
extends

beyond the everyday meaning of the word, such that it
encompasses

competitors

in

a

professional

golf

tournament.

See Martin, 532 U.S. at 695 (Scalia, J.,

dissenting) (“[N]o one in his right mind would think
that [professional baseball players] are customers of
the

American

League

or

of

Yankee

Stadium.”).

The

Martin Court also embraced a liberal understanding of
what qualifies as available to the general public.
id. at 697.

See

Nevertheless, as expansive as the Court’s

118

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 119 of 141

reading of Title III of the Americans with Disabilities
Act was, Martin still supports concluding that Coral
Ridge is not covered here by the similarly worded Title
II of the Civil Rights Act of 1964, because the ability
to receive donations through the AmazonSmile program is
simply
public.”

not

“available

to

members

of

the

general

Id. at 680.

ii. Text and Structure of Title II
The text and structure of Title II reinforce the
above-stated conclusion: The statute does not protect
the

ability

AmazonSmile

to

receive

program,

given

open to the public.

donations
that

this

through
ability

is

the
not

Specifically, the statute provides

that an establishment qualifies as a place of public
accommodation governed by Title II only if it “serves
the public.”

42 U.S.C. § 2000a(b); see also Welsh v.

Boy Scouts of Am., 993 F.2d 1267, 1269 (7th Cir. 1993).
Subsection (e) further provides that Title II’s ban on
discrimination does not apply “to a private club or
other establishment not in fact open to the public,
119

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 120 of 141

except

to

the

extent

that

the

facilities

of

such

establishment are made available to the customers or
patrons of an establishment” that qualifies as a place
of

public

§ 2000a(e)

accommodation
(emphasis

under

added).

subsection

Combining

(b).

these

two

subsections, the court concludes that Title II applies
to an entity only if it “serves the public” or is made
available to the “customers or patrons” of a public
accommodation
public”).
types

of

(which,

definition,

“serves

the

True, these two provisions relate to the
entities

qualifies

by

as

Nevertheless,

a

covered

good,

by

the

service,

because

the

statute,

or

not

what

privilege,

etc.

provisions

limit

the

statute’s coverage to entities that serve the public or
are available to entities that serve the public, and
because, by definition, entities that serve the public
provide

goods,

services,

etc.

that

are

open

to

the

public, the provisions suggest that Congress designed
Title II to address the evil of discrimination with
respect to goods, services, etc. that are open to the

120

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 121 of 141

public.

Moreover, the fact that opening an entity up

to “customers or patrons” triggers the application of
Title II to an otherwise exempt establishment strongly
suggests that at least a primary concern of Congress
was

discrimination

Given

that

Coral

against
Ridge

“customers

seeks

to

and

patrons.”

receive

donations

through a program that is not open to the public, and
that Coral Ridge is not acting as a customer or patron
in

seeking

the

donations,

it

is

not

the

type

of

plaintiff envisioned by Title II.

iii. Avoiding First Amendment Problems
Finally, even if one could conceivably read Title
II

to

protect

Coral

Ridge

here--which

this

court

strongly doubts--the canon of constitutional avoidance
would

preclude

such

a

reading.

This

longstanding

principle of statutory interpretation holds: “[I]f an
otherwise acceptable construction of a statute would
raise

serious

alternative

constitutional

interpretation

of

121

problems,
the

and

statute

where
is

an

fairly

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 122 of 141

possible,

[courts]

are

obligated

statute to avoid such problems.”

to

construe

the

I.N.S. v. St. Cyr,

533 U.S. 289, 299-300 (2001) (internal citations and
quotation marks omitted); see also Clark v. Martinez,
543 U.S. 371, 381 (2005) (explaining that
constitutional
between

avoidance

competing

“is

a

plausible

tool

the canon of
for

choosing

interpretations

of

a

statutory text, resting on the reasonable presumption
that

Congress

did

not

intend

the

alternative

which

raises serious constitutional doubts”).
Here, interpreting Title II to require the Amazon
defendants to include Coral Ridge in the AmazonSmile
program would raise serious First Amendment problems.
Such

an

interpretation

would

essentially

compel

the

Amazon defendants to donate money to Coral Ridge, and
thus subsidize its “mission ...

to proclaim the Gospel

upon which this Nation was founded.”
no. 40) at ¶ 38.
violating

the

Am. Compl. (doc.

This outcome would seriously risk

“bedrock”

First

Amendment

“principle

that, except perhaps in the rarest of circumstances, no

122

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 123 of 141

person in this country may be compelled to subsidize
speech by a third party that he or she does not wish to
support.”

Harris v. Quinn, 573 U.S. 616, 656 (2014);

see also NAACP v. Hunt, 891 F.2d 1555, 1566 (11th Cir.
1990)

(“[T]he

government

may

not

compel

persons

to

support candidates, parties, ideologies or causes that
they are against.”) (internal quotation marks omitted).
As the AmazonSmile eligibility requirements make clear,
the Amazon defendants do not want to donate money to
organizations that SPLC classifies as “hate groups.”
See

Am.

Compl.

(doc.

no.

40)

at

¶¶ 23,

classified Coral Ridge as a “hate group.”
Coral

Ridge

is

a

“third

party

defendants do “not wish to support.”
at

656.

Yet,

if

this

Court

that”

44.

SPLC

Therefore,
the

Amazon

Harris, 573 U.S.

adopted

Coral

Ridge’s

reading of Title II, the Amazon defendants would be
forced to donate money to Coral Ridge, despite their
wish not to, and thus be compelled to subsidize Coral
Ridge’s

mission

to

broadcast

123

its

religious

views,

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 124 of 141

including

its

opposition

to

homosexual

conduct

that

resulted in SPLC’s labeling it a “hate group.”
Coral
would

Ridge

not

argues

violate

that

the

applying

Amazon

Title

II

defendants’

here
First

Amendment rights, because it is the customers, rather
than the defendants, who make the donations through the
AmazonSmile program.

This argument is belied by Coral

Ridge’s amended complaint, which quotes the program’s
website as stating that “AmazonSmile Foundation will
donate 0.5% of the price of eligible purchases to the
charitable organizations selected by customers.”
Compl.

(doc.

customers

no.

initiate

40)

at

the

¶ 43.

Sure,

purchase

and

organization to which they donate.
the

customers

universe

of

can

donate

entities

that

to

the

Am

Amazon

choose

the

But, importantly,

only
meet

program’s eligibility requirements.

the
the

restricted
AmazonSmile

In other words,

the Amazon defendants choose which groups can receive
donations, and the Amazon defendants donate 0.5 % of
their revenue from each purchase.

124

It is therefore the

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 125 of 141

Amazon defendants who would be compelled to donate to a
group that they did not want to--namely, Coral Ridge.
By way of comparison, assume that a closely held
fast-food restaurant chain, whose owners are Christian
and object to homosexuality based on their religious
beliefs, initiates a “charity match” program.

Under

the program, consumers who purchase a certain number of
sandwiches may donate up to $ 5.00 to the charity of
their choice, subject to certain restrictions, and the
corporation

will

match

the

donation.

According

to

Coral Ridge’s interpretation of Title II, the fast-food
chain

could

be

compelled--over

their

objection--to

match donations to, for example, a church whose central
mission

is

promoting

the

Christian

acceptance

of

homosexuality; the Church of Satan; or any number of
religious
run

organizations

directly

convictions.

contrary

whose
to

the

purpose

and

business’s

activities
deeply

held

Even though the consumer initiated the

transaction that would ultimately lead to the business
donating money, it is still the business’s money being

125

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 126 of 141

donated, and the business retains its say as to where
it goes.33
So, even if Coral Ridge’s reading of the statute to
cover its claim were plausible, such an interpretation
would raise serious constitutional problems under the
First

Amendment.

interpretation

of

Because
the

“an

statute

alternative
is

fairly

possible”--indeed, in the court’s view, is the correct
interpretation of Title II--this court is “obligated to
construe the statute to avoid such problems.”

St. Cyr,

533 U.S. at 300.
26.
In addition to likely forcing establishments
to subsidize speech with which they disagree, extending
Title II to charitable monetary giving more broadly
runs the danger of restricting speech by diluting
donations to organizations to whom establishments want
to give.
For instance, assume a business decided to
donate a portion of its proceeds to a particular
religious or nationality-based organization--perhaps a
Korean restaurant donating to a church that the owners
attend, or to a Korean neighborhood association.
Applying Title II as Coral Ridge suggests might allow
other groups to come and demand a share of the
donations, which would in turn reduce the owners’
contributions to the group of their choice--potentially
ad infinitum.
This possibility further supports the
conclusion that Coral Ridge’s construction of Title II
would likely be unconstitutional.

126

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 127 of 141

In conclusion, the “full and equal enjoyment of the
goods,
and

services,

facilities,

accommodations

accommodation”
receive

does

donations

of

privileges,

any

not

place

encompass

through

the

advantages,
of

the

public

ability

AmazonSmile

to

program.

This conclusion stems from the reasoning of Martin and
text and structure of Title II--given that receiving
donations
public--as

through
well

the

as

public-accommodations

program

the

is

traditional

laws,

constitutional avoidance.34

and

not

open

to

the

understanding

of

the

of

canon

Accordingly, the Title II

claim is due to be dismissed with prejudice.

3. Discrimination Based on Religion
Even if Title II’s ban on discrimination applied to
Coral Ridge’s ability to receive donations through the
AmazonSmile program, it has not plausibly alleged that

34.
The court expresses no opinion as to whether
Title II would cover the ability to receive donations
if the AmazonSmile program had no--or significantly
less restrictive--eligibility requirements for donation
recipients.
127

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 128 of 141

the Amazon defendants discriminated against it based on
religion.

i.

Disparate Impact

Coral Ridge asserts a disparate-impact theory of
discrimination.

See Pl.’s Resp. to Amazon Defs.’ Mot.

to Dismiss (doc. no. 52) at 8-9.
disparate-treatment
establish
intent

that
or

case,

the

where

defendant

motive,

“In contrast to a

a

a

plaintiff

had

a

must

discriminatory

plaintiff

bringing

a

disparate-impact claim challenges practices that have a
disproportionately

adverse

effect

on

[a

protected

group] and are otherwise unjustified by a legitimate
rationale.”

Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2513
(2015) (internal quotation marks omitted).
defendants,
requires

on

the

other

intentional

hand,

argue

discrimination

embrace disparate-impact claims.

128

that
and

The Amazon
Title
does

II
not

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 129 of 141

Neither the Supreme Court nor Eleventh Circuit has
determined whether Title II recognizes disparate-impact
claims.
does.
495

Several lower courts have concluded that it
See, e.g., Olzman v. Lake Hills Swim Club, Inc.,

F.2d

1333,

1340-41

(2d

Cir.

1974);

Robinson

v.

Power Pizza, Inc., 993 F. Supp. 1462, 1464-66 (M.D.
Fla. 1998) (Schlesinger, J.).
does not.

Others have held that it

See, e.g., Akiyama v. U.S. Judo Inc., 181 F.

Supp. 2d 1179, 1187 (W.D. Wash. 2002) (Lasnik, J.);
LaRoche v. Denny's, Inc., 62 F. Supp. 2d 1366, 1370 n.2
(S.D. Fla. 1999) (Seitz, J.).
This court need not resolve the open question, for
Coral Ridge has not plausibly plead a prima-facie case
of disparate-impact discrimination.
To

make

out

a

prima-facie

case

under

a

disparate-impact theory, a plaintiff must show that the
defendant’s

challenged

“significantly
protected group.

disparate

policy

or

impact”

practice
on

members

has

a

of

a

Wards Cove Packing Co. v. Atonio, 490

U.S. 642, 657-58 (1989), superseded by statute on other

129

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 130 of 141

grounds,

42

U.S.C.

§ 2000e-2(k);

Stephen

v.

PGA

Sheraton Resort, Ltd., 873 F.2d 276, 279 (11th Cir.
1989) (requiring showing a “significant discriminatory
effect”).

As

prima-facie

the

case

“essentially[]

a

Supreme
of

587

threshold

(2009);

see

has

disparate-impact

statistical disparity.”
557,

Court

showing

of

clarified,

the

liability

is

a

significant

Ricci v. DeStefano, 557 U.S.
also

Powers

v.

Ala.

Dep’t

of

Educ., 854 F.2d 1285, 1293 (11th Cir. 1988) (explaining
that a prima-facie case requires plaintiffs to show a
“statistically

significant

disparity”

between

promotions of black people and similarly situated white
people).

The Supreme Court has instructed courts to

“examine with care whether a plaintiff has made out a
prima

facie

case

of

disparate

impact”

and

cautioned

that “prompt resolution of these cases is important.”
Inclusive Cmtys., 135 S. Ct. at 2523.
Still, at this motion-to-dismiss stage, Coral Ridge
must

plausibly

case

of

allege--not

disparate

prove--only

impact.

130

A

a

plaintiff

prima-facie
“should

be

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 131 of 141

afforded

the

opportunity

of

discovery

before

he

is

required to present detailed statistics to the court.”
Forsyth v. Univ. of Ala. Bd. of Trs., 2018 WL 4517592,
at

*6

(N.D.

Ala.

Sept.

20,

2018)

(Proctor,

J.).

Accordingly, all Coral Ridge must do is allege “some
statistical disparity, however elementary.”

Brady v.

Livingood, 360 F. Supp. 2d 94, 100 (D.D.C. 2004) (Leon,
J.).
Coral Ridge does not meet its burden because it
does

not

allege
indeed,

disparity;
factual

even
its

an

elementary

amended

allegations
adverse

Christian

Inclusive

2513.35
practice

complaint

whatsoever

“disproportionately
groups.

statistical

effect”

of

on

Cmtys.,

makes

any

religious

135

S.

no

Ct.

or
at

The Amazon defendants’ challenged policy or
is

their

eligibility

requirement

for

the

AmazonSmile program that excludes any organization that
SPLC classifies as a “hate group.”

See Am. Compl.

35. Of course, the court does not credit Coral
Ridge’s conclusory allegations of disparate impact that
are unsupported by any well-pleaded underlying factual
allegations.
131

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 132 of 141

(doc.

no.

40)

at

¶¶ 23-24,

44.

Coral

Ridge,

a

“Christian ministry,” id. at ¶ 63, has not alleged any
facts

indicating

that

this

eligibility

requirement

results in the disproportionate exclusion of Christian
or

religious

organizations,

as

compared

to

non-Christian or non-religious organizations seeking to
participate in the program.36

That is, Coral Ridge does

36. Disparate-impact claims require evaluating the
impact of a policy or practice on members of a
protected class as compared to persons outside the
protected class.
The court reads the relevant
protected class alleged here to be a Christian or
religious organization, not a Christian organization
whose religious views oppose homosexual conduct. If a
plaintiff could narrowly define its class based on its
particular religious belief, rather than the broader
religious faith or group to which it belongs, then
disparate-impact claims would have a nearly limitless
reach.
This
is
because
any
policy
impacting
a
plaintiff’s specific religious belief would generally
impact 100 % of the members of a class defined by that
belief, which would virtually always amount to a
disproportionate impact as compared to those falling
outside the class.
Cf. Akiyama, 181 F. Supp. 2d. at
1186.
For example, a Jewish man impacted by a policy
affecting a belief rooted in his idiosyncratic,
personalized interpretation of Judaism could claim
disparate impact even though no other Jewish people
hold that belief.
Such a broad interpretation of religion-based
disparate-impact claims would conflict with the Supreme
132

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 133 of 141

Court’s admonition that policies “are not contrary to
the
disparate-impact
requirement
unless
they
are
artificial,
arbitrary,
and
unnecessary
barriers.”
Inclusive Cmtys., 135 S. Ct. at 2512 (internal
quotation marks omitted).
Furthermore, such an
interpretation would be contrary to the text of Title
II, which prohibits discrimination “on the ground of
race,
color,
religion,
or
national
origin.”
§ 2000a(a).
First, the statute refers to “religion,”
not religious beliefs.
Id.; compare with 42 U.S.C.
§§ 2000bb-1(a)-(b) & 2000cc-5(7) (establishing the
Religious Freedom Restoration Act of 1993’s much
broader
protection
for
religious
freedom,
which
mandates, in much more expansive language, that the
“Government shall not substantially burden a person’s
exercise of religion even if the burden results from a
rule of general applicability” unless the Government
makes
certain
showings;
and
defining
“religious
exercise” as “any exercise of religion, whether or not
compelled by, or central to, a system of religious
belief”).
Second,
all
the
other
protected
grounds--race, color, and national origin--refer to
broad categories of people.
Reading “religion” in
light of those surrounding categories, it makes little
sense to allow a plaintiff to narrowly define his
protected class for disparate-impact purposes based on
one specific belief related to their religious faith.
See United States v. Williams, 553 U.S. 285, 294 (2008)
(explaining the “commonsense canon of noscitur a
sociis--which counsels that a word is given more
precise content by the neighboring words with which it
is associated”).
Granted, a plaintiff might be able to define his
class as members of a particular branch, strand,
denomination, sect, etc. of a religion, such as Sufi
Muslims,
Orthodox
Jews,
or
Lutheran
Christians.
However, even if the court construed Coral Ridge’s
complaint
to
identify
its
protected
class
as
133

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 134 of 141

not allege any facts that would lead to a reasonable
inference that Christian or religious organizations are
more

likely

than

other

§ 501(c)(3)

organizations

falling outside those categories to be designated by
SPLC as “hate groups” and thus excluded.
its

amended

complaint

makes

no

factual

For example,
allegations

reasonably suggesting that Christian organizations are
more

likely

fact

been

than
more

other

organizations

frequently

deemed

allege

religious

any

facts

organizations

indicating
are

groups

more
to

have

to--qualify

SPLC’s definition of a “hate group.”
Ridge

to--or

in

under

Nor does Coral

that
likely
“oppose

Christian
than

or

other

similarly

situated

homosexual

conduct.”

Cf. Obergefell v. Hodges, 135 S. Ct. 2584,

evangelical Christian organizations, it still does not
make the factual allegations that evangelical Christian
organizations are disproportionately deemed--or likely
to be deemed--“hate groups” and thus excluded from the
AmazonSmile program.
See Am. Compl. (doc. no. 40) at
¶ 31
(describing
Coral
Ridge’s
founder
as
an
“evangelist”).
The bottom line is that, even
is
assumed that Title II recognizes disparate-impact
claims, the protected class in such a claim should be
defined along the lines of a religion or religious
group, not a particular belief within that group.
134

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 135 of 141

2602 (2015) (“Many who deem same-sex marriage to be
wrong”

do

so

based

on

“religious

or

philosophical

premises”) (emphasis added).
Despite

these

pleading

defects,

Coral

Ridge

maintains that there is a disparate impact because it
was excluded from the AmazonSmile program based on its
religious

beliefs,

whereas

§ 501(c)(3)

organizations

“that fall outside of SPLC’s ‘hate group’ category” are
eligible to participate.

Pl.’s Resp. to Amazon Defs.’

Mot. to Dismiss (doc. no. 52) at 8-9.
misses

the

comparing

mark.

its

Alleging

eligibility

“that

fall

outside

would

make

sense

of

only

to

SPLC’s
if

This argument

disparate
that

of

‘hate

impact

group’

Coral

Ridge

by

organizations

were

category”
alleging

discrimination based on its trait of being deemed a
‘hate group’ by SPLC.

Id.

Of course, being deemed a

‘hate group’ by SPLC is not one of the traits protected
by Title II.
In sum, Coral Ridge’s allegation that its religious
beliefs caused it to be deemed a hate group and thus

135

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 136 of 141

excluded

from

indicating
are

AmazonSmile,

that

Christian

disproportionately

without

or

any

religious

deemed--or

allegations
organizations

likely

to

be

deemed--hate groups and thus excluded, is not enough to
allege plausibly a prima-face case of disparate impact.

ii. Intentional Discrimination
Coral Ridge further argues that, even if Title II
requires

intentional

discrimination,

alleges such intent.

it

plausibly

Specifically, it contends that

the following factual allegations support a reasonable
inference
religion.
on-its-face

of

intentional

First,

discrimination

“Amazon

religiously

Defs.’

Mot.

to

chose

SPLC’s

discriminatory

hate

group

Dismiss

(doc.

Pl.’s Resp. to
no.

52)

at

(citing Am. Compl. (doc. no. 40) at ¶¶ 44, 53-54).
court

rejects

this

on

specifically

criteria as its eligibility standard.”
Amazon

based

allegation,

given

that

it

10
The
is

contradicted by Coral Ridge’s more specific allegation
that

SPLC

defines

a

“hate

136

group”

as

one

that

has

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 137 of 141

“beliefs or practices that attack or malign an entire
class

of

people,

characteristics.”

typically

for

their

immutable

Am. Compl. (doc. no. 40) at ¶ 64.

This definition, which does not reference religion, is
not “on-its-face religiously discriminatory.”
Second, Coral Ridge argues that an inference of
intentional

discrimination

is

supported

by

its

allegation that the “SPLC placed [Coral Ridge] on the
Hate Map because of [Coral Ridge’s] religious beliefs
regarding LGBT issues.”

Pl.’s Resp. to Amazon Defs.’

Mot. to Dismiss (doc. no. 52) at 10 (citing Am. Compl.
(doc. no. 40) at ¶¶ 56-58).

The court accepts as true

that

Ridge

SPLC

because

of

designated
its

Coral

beliefs

about

LGBT

as

a

“hate

issues,

these are religious beliefs for Coral Ridge.
fact

that

Coral

Ridge’s

opposition

to

group”

and

that

Yet, the
homosexual

conduct happens to be rooted in its religious beliefs
does not mean that SPLC targeted Coral Ridge because of
its religious beliefs, as opposed to its belief, full
stop, regardless of whether that belief is religiously

137

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 138 of 141

rooted.

Moreover, Coral Ridge’s allegation that the

designation was because of its religious beliefs need
not be accepted, because it is tantamount to the legal
conclusion

of

discrimination.
Jaharis,

297

intentional
See

F.3d.

Oxford
1182,

religion-based

Asset
1188

Mgmt.,
(11th

Ltd.,

Cir.

v.

2002)

(explaining that, at the motion to dismiss stage, the
court

need

not

accept

as

true

“legal

conclusions

masquerading as facts”).
Third, Coral Ridge alleges that “Amazon (not SPLC)
makes the ultimate decision as to who may or may not
participate in the AmazonSmile program.”

Pl.’s Resp.

to Amazon Defs.’ Mot. to Dismiss (doc. no. 52) at 10
(citing Am. Compl. (doc. no. 40) at ¶¶ 43, 53).
allegation,

alone

or

in

combination

with

the

This
other

allegations, does not lead to a reasonable inference of
intentional discrimination.
Finally, Coral Ridge contends that: “Even if Amazon
were to argue that there was no intent to discriminate
prior to this lawsuit being filed, at this point in the

138

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 139 of 141

litigation, Amazon has been on notice of the issues in
this case for months now and could easily have made
this case go away by simply permitting [Coral Ridge] to
be part of the AmazonSmile program.

Amazon’s continued

refusal to do so, especially in light of the expense of
defending this litigation, certainly indicates Amazon’s
intent to continue discriminating.”
is

basically

arguing

that

the

Id.
Amazon

Coral Ridge
defendants’

refusal to acquiesce to its litigation demands somehow
converts

its

exclusion

from

the

into intentional discrimination.

AmazonSmile

program

This argument lacks

merit.
Accordingly, Coral Ridge does not plausibly allege
intentional discrimination based on religion.
***
While Title II “is to be liberally construed and
broadly read,” Miller, 394 F.2d at 349, Coral Ridge
wants to stretch the statute beyond its breaking point.
Perhaps Title II extends beyond physical “place[s],”
§ 2000a(b), to the internet.

139

Perhaps it protects more

Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 140 of 141

than just potential customers seeking goods, services,
etc.

Perhaps

claims.
money

it

even

recognizes

disparate-impact

But it does not protect the ability to receive

donations,

where

such

an

ability

is

limited

exclusively to § 501(c)(3) organizations and thus not
open to the public.

And Title II certainly does not

entitle to relief a plaintiff who does not plausibly
alleged

any

discrimination

whatsoever,

whether

intentional or by disparate impact.
Coral Ridge cannot force the Amazon defendants to
donate money to it.

Its Title II claim is due to be

dismissed with prejudice.37

V. CONCLUSION
The

court

suggesting
group.”

that

should

not

Coral

Ridge

be
is

understood

as

or

a

is

not

even
“hate

It has merely held that SPLC’s labeling of the

37. The court reaches the same conclusion, for the
same reasons, regardless of whether Coral Ridge
characterizes its claim as seeking to be able to
receive money through the AmazonSmile program based on
purchases by other customers, or based on purchases
that Coral Ridge itself makes.
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Case 2:17-cv-00566-MHT-SMD Document 68 Filed 09/19/19 Page 141 of 141

group as such is protected by the First Amendment and
that the Amazon defendants’ exclusion of the group from
receiving

donations

through

the

AmazonSmile

charitable-giving program does not violate Title II of
the

Civil

Rights

Act

of

1964.

The

court

will,

therefore, enter a judgment adopting the recommendation
of the magistrate judge (albeit for different reasons
in

some

respects);

defendants’

motions

granting
to

SPLC’s

dismiss;

and

and

the

Amazon

dismissing

this

case in its entirety.
DONE, this the 19th day of September, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

141