Cheng v. Neumann

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: LYNCH, Circuit Judge.
• Citation: Cheng v. Neumann, 51 F.4th 438 (1st Cir. 2022)
• Docket Number: 22-1124
• Decision Date: 25 October 2022
• Parties: Dana CHENG; Epoch Group, Inc., d/b/a Epoch Media Group, Plaintiffs, Appellants, v. Dan NEUMANN; Maine People's Alliance, d/b/a Beacon, Defendants, Appellees.

51 F.4th 438

Dana CHENG; Epoch Group, Inc., d/b/a Epoch Media Group, Plaintiffs, Appellants,

v.Dan NEUMANN; Maine People's Alliance, d/b/a Beacon, Defendants, Appellees.

No. 22-1124

United States Court of Appeals, First Circuit.

October 25, 2022

Christopher J. Bakes, with whom Kip Joseph Adams, Bryan Paul Sugar, Lann G. McIntyre, and Lewis Brisbois Bisgaard & Smith LLP were on brief, for appellants.

John-Mark Turner, with whom Christopher Cole, Sheehan, Phinney, Bass & Green, P.A., Tracy D. Hill, and Drummond Woodsum were on brief, for appellees.

Carol J. Garvan, Zachary L. Heiden, Anahita Sotoohi, and Brian Hauss on brief for American Civil Liberties Union and American Civil Liberties Union of Maine, amici curiae.

Before Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

LYNCH, Circuit Judge.

Dana Cheng and Epoch Group sued Maine People's Alliance and Dan Neumann, its reporter, in the U.S. District Court for the District of Maine. The suit asserted that the defendants' coverage of a presentation given by Cheng on a panel at a Windham, Maine forum co-sponsored by the Maine Republican Party and the Christian Civic League was defamatory and constituted false light invasion of privacy and intentional and negligent infliction of emotional distress. The defendants moved to dismiss, asserting First Amendment and various state-law defenses. The district court granted the motion to dismiss in a thoughtful opinion. See Cheng v. Neumann, No. 21-cv-00181, 2022 WL 326785 (D. Me. Feb. 3, 2022). Because the plaintiffs have not plausibly alleged defamation under First Amendment principles, we affirm.

I.

We draw the facts from the plaintiffs' complaint, "documents attached to or fairly incorporated into the complaint," "facts susceptible to judicial notice," and "concessions in plaintiff[s'] response to the motion to dismiss." Lemelson v. Bloomberg L.P., 903 F.3d 19, 21 (1st Cir. 2018) (quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012) ).

Dana Cheng, a New York resident, is the vice president and co-founder of The Epoch Times, a print and online newspaper, also in New York.

Maine People's Alliance, a Maine non-profit corporation, publishes an online media outlet named Beacon. On June 16, 2021, Beacon published an article written by Dan Neumann titled "Maine GOP hosts speaker present at Jan. 6 Capitol assault" (the "Article"). The Article stated, in relevant part:

The Maine Republican Party co-sponsored a community forum in Windham on Monday evening that included as a panelist a far-right media personality and conspiracy theorist who has said she was among the supporters of former President Donald Trump who were present at the riot at the U.S. Capitol on Jan. 6.

...

Dana Cheng, vice-president of the right-wing multi-language newspaper and media company Epoch Times, was invited by the Gray Republicans to brief their members about the threats posed to Americans by the Chinese government.

...

The day after the insurrection that left five people dead, Cheng said on a Denver radio program that she was present at the Capitol when it was breached, but was not at the front of the crowd and did not enter the building.

Cheng alleged during the radio interview that the violence that day was perpetrated by anti-fascist infiltrators -- a false refrain echoed throughout conservative media in the days after the insurrection.

"We have got photos from our readers that there were some antifa people," she said. "They have seen a few people try to push into the building, some got into the building. They were the same people that were in the antifa movement."

Since Trump's loss to President Joe Biden, Cheng's Epoch Times has consistently questioned the election results. The news outlet is partially funded by far-right media financier Robert Mercer and has promoted anti-vaccine misinformation and an array of pro-Trump conspiracy theories such as QAnon, leading the New York Times to call the outlet a "global-scale misinformation machine."

The Article included a link to a recording of Cheng's appearance on The Kim Monson Show, a Denver radio show and podcast. That link provided access to the statements actually made during that show. The Article also referred to statements made by the chair of the Maine Republican Party regarding the Capitol assault. The Article and a transcript of Cheng's radio appearance are attached in their entirety as Exhibits A and B hereto.

On January 7, 2021, the day after the attack on the U.S. Capitol, Cheng had appeared on The Kim Monson Show as a repeat guest. When asked about the events of January 6, Cheng stated:

Yesterday I was at a rally in the morning. I went to a -- a lot of people, people, people were very peaceful relatively and then people were excited and when Trump was speaking. So later on at the Capitol, I was there but I was not on the right front, so I did not see with my own eyes what happened when some people broke into the building. I was -- most people there, to my eyes, had been very peaceful. So those on the front, I -- we have got photos from our readers that there's a -- there were some antifa people infiltrating in, and they have seen a few people trying to push, push into the building and some got into the building and some photos that they could see they are the same people that were in the antifa movement. We got some photos sent by readers.

So no matter who was involved, to us, we're very fully aware with the communism strategy -- and it happened in China, it happened in Hong Kong. The easiest way to ruin a movement or a protest is to lead a few people to go extreme. That's the fastest way to ruin a protest or movement. So I don't think if it's random and it's like, it's not planned. I think some people planned it. Who was involved and who tried to plot this, it's not clear yet.

Pressed by Monson on whether she could say "for sure" that anti-fascist ("antifa") infiltrators were involved in breaching the Capitol, Cheng replied: "We are in the process of confirming those. And that is a familiar strategy from communists." Cheng also stated that "it [was her] opinion that China has been deeply involved in this election fraud."

Cheng and Epoch Group (publisher of The Epoch Times ) sued Neumann and Maine People's Alliance in federal court in Maine under diversity jurisdiction, alleging defamation based on the statements in the Article. Cheng also asserted the other claims previously described.

As relief, the plaintiffs sought a retraction of the Article in its entirety, an injunction enjoining the defendants "from further publication of any false, malicious, defamatory or materially misleading comments regarding Plaintiff[s]," money damages, punitive damages, and other relief.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) and New York's anti-SLAPP statute. The district court granted the motion. This timely appeal followed.

II.

We review a district court's grant of a motion to dismiss a defamation suit de novo. McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017) ; see also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (stating general principle that, in First Amendment cases, appellate courts have "an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression’ " (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) )). We "accept as true the complaint's well-pleaded factual allegations" and "draw all reasonable inferences in favor of the non-moving party." McKee, 874 F.3d at 59. We do not credit legal labels or conclusory statements, but rather focus on the complaint's non-conclusory, non-speculative factual allegations and ask whether they plausibly narrate a claim for relief. Lemelson, 903 F.3d at 23.

A.

We first consider the plaintiffs' defamation claims. "Modern defamation law is a complex mixture of common-law rules and constitutional doctrines." McKee, 874 F.3d at 60 (quoting Pan Am Sys., Inc. v. Atl. Ne. Rails & Ports, Inc., 804 F.3d 59, 64 (1st Cir. 2015) ). Here, we bypass the parties' choice-of-law disputes as to whether Maine or New York law (including either state's anti-SLAPP statute) applies. Rather, we look to dispositive First Amendment principles. See Lemelson, 903 F.3d at 23 (taking a similar approach); Schatz, 669 F.3d at 56 (same).

We focus on two such principles. We have no need to reach further First Amendment principles concerning public figures and the pleading requirements for actual malice.

As to the first principle, where challenged statements are published by a media defendant and involve matters of public concern, there can be no liability unless the statements are false. See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) ; see also, e.g., Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (reiterating this principle); Milkovich v. Lorain J. Co., 497 U.S. 1, 19-20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (same); Veilleux v. Nat'l Broad. Co., 206 F.3d 92, 108 (1st Cir. 2000) (same). The district court correctly held that the Article was published by media defendants and concerned matters of public concern. See Cheng, 2022 WL 326785, at *4, *6.¹ Such a falsity must be material, not merely a minor inaccuracy. See Pan Am, 804 F.3d at 66 ; Veilleux, 206 F.3d at 108 ; see also Air Wisc. Airlines Corp. v. Hoeper, 571 U.S. 237, 247, 134 S.Ct. 852, 187 L.Ed.2d 744 (2014) ("A ‘statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ " (internal quotation marks omitted) (quoting Masson, 501 U.S. at 517, 111 S.Ct. 2419 )).

As to the other First Amendment principle, "a statement of opinion relating to matters of public concern which does not...