Hollander v. Garrett et al

Filing 108

OPINION & ORDER re: 100 MOTION to Dismiss the First Amended Complaint filed by John Yang, NewsHour Productions LLC, Lisa Desjardins; 31 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6) filed by David B rooks; 93 MOTION to Dismiss the First Amended Complaint filed by Washington Post Newsroom, Major Elliott Garrett, NBCUniversal Media, LLC, Thomas Llamas, Andrea Mitchell, Cecilia M Vega, Lester Don Holt, Jr., Charles David Todd, Cable News Network, Kristen Welker, Abilio James Acosta, Jonathan David Karl, CBS News Inc., ABC News Division, Jenna Johnson, Hallie Marie Jackson, Katharine Bear Tur; 84 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)( 6) filed by The New York Times Company, Megan M Twohey, David Brooks; 38 MOTION to Dismiss filed by Major Elliott Garrett, Thomas Llamas, Charles David Todd, Abilio James Acosta, Jenna Johnson, Katharine Bear Tur. For the fore going reasons, the Court grants defendants' motions to dismiss the FAC. The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 31, 38, 84, 93, and 100, and to close this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 5/10/2017) (anc)

Specifically, Hollander alleges, the defendants promoted and disseminated “false and misleading
news reports” or commentary concerning Donald Trump’s candidacy for President. Each false
and misleading news report, Hollander claims, was a predicate act of wire fraud supporting a
claim of racketeering.
The Court previously denied Hollander’s application, during the election campaign, for
injunctive relief against these defendants, on the grounds that Hollander sought a prior restraint,
offensive to basic First Amendment principles. With the election over, Hollander has dropped
his bid for injunctive and declaratory relief. Hollander continues, however, to pursue money
damages.
Defendants now move to dismiss Hollander’s First Amended Complaint (“FAC”) under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Their arguments include that the
conduct that Hollander terms wire fraud is speech protected by the First Amendment, that
Hollander has not suffered an injury in fact sufficient to confer standing to bring this lawsuit, and
that his RICO claims are conclusory in various respects and otherwise fail to state a claim upon
which relief can be granted.
Each of these arguments is meritorious. Each requires dismissal of this lawsuit. In the
interest of economy, the Court develops only one here: that dismissal is mandatory because the
news reporting that Hollander assails as wire fraud is speech protected by the First Amendment
of the United States Constitution for which civil damages to an offended audience are not
available.
I.

Background1

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The Court’s summary of Hollander’s factual allegations is drawn from the FAC, Dkt. 58. For
the purpose of resolving the motion to dismiss, the Court assumes all well-pleaded facts to be
true and draws all reasonable inferences in favor of the plaintiff. See Koch v. Christie’s Int’l
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A.

Hollander’s Claims

Hollander is an attorney who resides in Manhattan. FAC ¶ 25. He alleges that the
defendant media organizations propagated false or misleading news reports and commentary
regarding the Trump presidential campaign. As an exhibit to the FAC, he attaches a 59-page,
single-spaced “sampling” of approximately 90 examples of such news reports or commentary.
Each is accompanied by Hollander’s explanation of why the report or commentary was,
allegedly, false, misleading, or incomplete. See id., Ex. A.
The first example in Hollander’s sampling is representative of Hollander’s critiques.
Hollander there faults defendants CBS News, Inc. and its reporter, Major Garrett, for their
coverage on October 3, 2016 of statements made by Donald Trump in Northern Virginia in
response to a question by a Marine veteran regarding health care for U.S. veterans. Id. at 1.
Hollander faults these defendants for “falsity, prevarication, or dissemblance” based on their
failure to include in the coverage the fact that the Marine veteran afterwards described Trump’s
comments as “thoughtful” and stated that he “believe[d] [Trump] is committed to helping”
veterans. Id.
In a later example, also representative of his critiques, Hollander cites a July 28, 2016,
column titled “The Democrats Win the Summer” by New York Times columnist David Brooks,
a defendant in this case. There, Brooks assailed Trump for having “abandoned the JudeoChristian aspirations that have always represented America’s highest moral ideals” and called
Trump a “morally untethered, spiritually vacuous man who appears haunted by multiple
personality disorders.” Id. at 48–49. Hollander faults the New York Times and Brooks for

PLC, 699 F.3d 141, 145 (2d Cir. 2012). The Court also considered the exhibits attached to the
FAC because they are incorporated by reference or are “integral” to the FAC. See Chambers v.
Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002).
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“falsity, prevarication, or dissemblance” for failing to mention that “Trump often speaks of love
and compassion in his speeches.” Id. at 49. Hollander adds that “Brooks has neither the
qualifications nor facts necessary to conclude that Trump has mental disorders, is amoral or is
spiritually empty.” Id.
Hollander further asks the Court to “take judicial notice of the liberal bias of the
mainstream media, which includes” the defendant media organizations and reporters. FAC ¶ 54.
Hollander alleges that the defendants engaged in an act of wire fraud, constituting a
RICO predicate act, each time they (1) “create[d] and cause[d] to be broadcast and disseminated
false and misleading news reports concerning” candidate Trump; (2) “provide[d] and cause[d] to
be broadcast and disseminated commentary based on a false set of facts or fail[ed] to reveal the
factual basis for the assertion of the judgments on which the commentaries are based”; or (3)
“lobb[ied] and cause[d] to be broadcast and disseminated lobbying on various news-talk shows
in furtherance of their opposition to the Trump Candidacy.” Id. ¶ 26.
Hollander alleges that the purpose of these allegedly false and misleading news reports
and commentary was “to prevent Donald J. Trump from being elected President” and “to aid and
abet Hillary R. Clinton in being elected President.” Id. ¶ 27. Hollander alleges that the media
organizations are liable along with the authors of the reports and commentary “because these
news organizations . . . instituted policies to aid and abet the schemes to undermine the Trump
Candidacy with false and misleading information.” Id. ¶ 29. Hollander alleges the defendants
aimed to “manipulate and rig this republic’s electoral process,” knowing that the public relies on
the media “to be their surrogate observers of the Presidential campaigns, report back to them the
material facts on both sides of the election battle, and provide professional judgments based on

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observed facts free of intentional falsehoods, prevarications, dissemblings or ideological biases.”
Id. ¶ 30.
As relief, Hollander seeks money damages for the costs he “incurred in investigating,
preventing, and rectifying the defendants’ frauds.” Id. ¶ VII.4. In the FAC, Hollander also
sought (1) a declaratory judgment that defendants’ conduct violated RICO; and (2) a permanent
injunction prohibiting defendants “from continuing to create and cause to be broadcast and
disseminated false and misleading news reports, commentaries and lobbying against the Trump
Candidacy by requiring them to fact check their presentations, refrain from spinning out-ofcontext quotes by Trump and provide equal time to both sides.” Id. ¶ VII.1. The Court,
however, has already rejected Hollander’s bid for injunctive relief as seeking a prior restraint
incompatible with the First Amendment. And Hollander acknowledges that, with the 2016
presidential election having occurred, there is no longer a basis to seek injunctive or declaratory
relief. In his memorandum of law opposing the motions to dismiss, he states that he now seeks
only money damages. See Dkt. 95 at 3.
B.

Procedural History

On August 23, 2016, Hollander filed an initial complaint against a subset of the
defendants eventually sued in the FAC. Dkt. 1.
Two days later, Hollander filed a motion asking the Court to issue an order directing the
defendants to show cause at a hearing why a preliminary injunction should not issue enjoining
them from continuing to engage in false and misleading speech. See Dkt. 11. In an order issued
later that day, the Court denied Hollander’s request. The Court explained that the relief
Hollander sought would be a prior restraint, offensive to the First Amendment. Dkt. 19.

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After an initial set of motions to dismiss, on October 20, 2016, Hollander amended the
complaint by filing the FAC, Dkt. 58. Starting on November 4, 2016, defendants filed various
motions to dismiss and memoranda of law in support. Dkts. 84–85, 93–94, 97, 100–01, 103,
105. Hollander filed memoranda of law in opposition to these motions. Dkts. 95, 104.
II.

Discussion
This lawsuit by a consumer of the national news media takes aim at constitutionally

protected speech. Hollander accuses seven media organizations and journalists working for them
of making allegedly false and misleading reporting and commentary on the 2016 presidential
election. Hollander claims that this reporting was slanted to favor Hillary Clinton and to disfavor
Donald Trump, including by omitting facts and context favorable to the Trump campaign.
Hollander seeks, as a remedy, money damages. As his injury, Hollander does not claim to have
been the subject of the reporting in question—he does not, for example, claim to have been
libeled or defamed. Rather, Hollander claims to have taken offense at the media’s misleading
and biased coverage. He seeks compensation for expenses he claims to have incurred in
combating this speech.
The First Amendment, and first principles of constitutional law, bar this lawsuit. The
speech for which Hollander seeks relief, political speech regarding a presidential election
campaign, is at the core of what the First Amendment protects. “The First Amendment reflects
‘a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.’” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting New
York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “[S]peech concerning public affairs is
more than self-expression; it is the essence of self-government.” Id. (quoting Garrison v.
Louisiana, 379 U.S. 64, 74–75 (1964)). As such, “speech on public issues occupies the highest

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rung of the hierarchy of First Amendment values, and is entitled to special protection.” Id.
(quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). It is “at the heart of the First
Amendment’s protection.” Id. at 451–52 (quotation omitted).
The First Amendment does not, of course, make reporting or commentary on matters of
public concern categorically off-limits as the subject of a private civil lawsuit. A plaintiff who
claims libel or defamation and who can establish actual malice may pursue such claims. See
New York Times, 376 U.S. at 279–80. And, in other limited contexts, such as speech furthering
unlawful boycotts, or embedding copyright-protected material, or fraudulently soliciting money,
or integral to a criminal scheme, speech touching on matters of public concern potentially may
be actionable. See, e.g., Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600,
612 (2003) (holding that the First Amendment does not shield fraudulent charitable
solicitations). But these are narrow exceptions reserved for the truly rare case. For it is a
“general proposition that freedom of expression upon public questions is secured by the First
Amendment.” New York Times, 376 U.S. at 269. As the Supreme Court instructed a halfcentury ago, “there is practically universal agreement that a major purpose of [the First]
Amendment was to protect the free discussion of governmental affairs. This of course includes
discussions of candidates, structures and forms of government, the manner in which government
is operated or should be operated, and all such matters relating to political processes. The
Constitution specifically selected the press . . . to play an important role in the discussion of
public affairs.” Mills v. Alabama, 384 U.S. 214, 218–19 (1966).
Hollander’s claim here is, at root, that the various articles, commentary, and broadcasts
that he assails were inaccurate, biased, or misleading. While he labels these acts of journalism as
acts of “wire fraud,” in fact, he pleads no “scheme or artifice to defraud, or for obtaining money

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or property by means of false or fraudulent pretenses, representations, or promises[.]” 18 U.S.C.
§ 1343. And “[s]imply labeling an action one for ‘fraud,’ of course, will not carry the day.”
Illinois, ex rel. Madigan, 538 U.S. at 617. And it is long settled that factual errors, actual or
asserted, in speech on matters of public concern do not remove such expression from the
protection of the First Amendment. Rather, as a mark of the “overriding importance” of the
national commitment to uninhibited, robust, and wide-open debate on public issues, “neither
factual error nor defamatory content, nor a combination of the two, suffice[s] to remove the First
Amendment shield from criticism of official conduct.” Bartnicki v. Vopper, 532 U.S. 514, 534–
35 (2001); see also United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (“some false
statements are inevitable if there is to be an open and vigorous expression of views in public and
private conversation, expression the First Amendment seeks to guarantee”). The First
Amendment’s protection of discourse on public issues “does not turn upon the truth, popularity,
or social utility of the ideas and beliefs which are offered.” New York Times, 376 U.S. at 271
(quotation omitted).
Unsurprisingly in light of these foundational principles, Hollander cites no precedent
entitling a plaintiff to recover for his efforts to correct, contextualize, or neutralize another’s
speech on matters of public concern. Quite the contrary, the Supreme Court’s 2011 decision in
Snyder v. Phelps holds that even where outrageous speech on a matter of public concern causes
emotional distress to another, the First Amendment bars recovery in a civil damages action. The
Court there overturned a jury’s verdict for intentional infliction of emotional distress, in favor of
family members of a deceased Marine killed in the line of duty whose funeral had been picketed
by caustic, hostile, homophobic picketers. The Court found that the pickets addressed matters of
public concern. Snyder, 562 U.S. at 454 (“While these messages may fall short of refined social

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or political commentary, the issues they highlight . . . are matters of public import.”). As such,
the Court held, this speech was “entitled to special protection under the First Amendment”; this
precluded recovery even based on a jury finding that the picketers had engaged in “outrageous”
conduct towards the Marine’s family. Id. at 458 (quotation marks omitted). As the Supreme
Court put the point: “[I]n public debate, [we] must tolerate insulting, and even outrageous,
speech, in order to provide adequate ‘breathing space’ to the freedoms protected by the First
Amendment.” Id. (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)) (modifications in original);
see also id. at 460 (overturning separate verdict against picketers for civil conspiracy based on
similar conduct).
Hollander’s claim to relief here is, of course, a far cry weaker than that of the plaintiff
family in Snyder. Hollander does not allege personal distress at the defendants’ news reports and
commentaries regarding the 2016 presidential election. Instead, he pleads for compensation for
his efforts to expose and redress the reportorial lapses that he perceives. That bid is antithetical
to the First Amendment.
Hollander indeed has a remedy to the extent he is affronted by defendants’ speech. It is
the time-honored, out-of-court, remedy that Justice Brandeis famously identified nearly a century
ago. He observed that to combat “falsehood and fallacies . . . the remedy to be applied is more
speech.” Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see also
Alvarez, 132 S. Ct. at 2550 (“The remedy for speech that is false is speech that is true. That is
the ordinary course in a free society.”). Hollander is at liberty to counter defendants’ reporting
and commentaries with speech of his own. But he may not foist on the journalists with whom he
disagrees the cost of his competing speech.

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