La Liberte v. Reid

• Decision Date: 15 July 2020
• Docket Number: No. 19-3574,August Term 2019,19-3574
• Citation: 966 F.3d 79
• Parties: Roslyn LA LIBERTE, Plaintiff-Appellant, v. Joy REID, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

966 F.3d 79

Roslyn LA LIBERTE, Plaintiff-Appellant,

v.Joy REID, Defendant-Appellee.

No. 19-3574

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: May 14, 2020

Decided: July 15, 2020

G. TAYLOR WILSON (L. Lin Wood, Nicole Jennings Wade, on the brief), L. Lin Wood, P.C., Atlanta, GA, for Plaintiff-Appellant Roslyn La Liberte.

JOHN H. REICHMAN (Jason L. Libou, on the brief), Wachtel Missry LLP, New York, NY, for Defendant-Appellee Joy Reid.

The Reporters Committee for Freedom of the Press and 21 Media Organizations, Washington, DC, (Bruce D. Brown and Katie Townsend ), filed a brief as Amici Curiae, in support of Defendant-Appellee.

Before: KEARSE, JACOBS, CABRANES, Circuit Judges.

JACOBS, Circuit Judge:

Plaintiff Roslyn La Liberte spoke at a 2018 city council meeting to oppose California's sanctuary-state law; soon after, a social media activist posted a photo showing the plaintiff with open mouth in front of a minority teenager; the caption was that persons (unnamed) had yelled specific racist remarks at the young man in the photo. Defendant Joy Reid, a personality on cable television, retweeted that post, an act that is not alleged to be defamatory. The defamation claim is based on Reid's two later posts: her June 29 post showed the photograph and attributed the specific racist remarks to La Liberte; her July 1 post, to the same effect, juxtaposed the photograph with the 1957 image of a white woman in Little Rock screaming execrations at a Black child trying to go to school.

The teenager who was photographed with La Liberte soon after publicly explained that La Liberte did not scream at him and that they were having a civil discussion. La Liberte sued Reid for defamation in the United States District Court for the Eastern District of New York.

The district court (Irizarry, Ch. J. ) rejected Reid's defense of immunity under section 230 of the Communications Decency Act, see 47 U.S.C. § 230(c)(1) (" Section 230"), but nevertheless dismissed La Liberte's defamation claim as to both of Reid's posts. The court deemed La Liberte to be a limited purpose public figure and held that she failed to allege actual malice as to the first post, and rejected the claim as to the second post on the ground that it was nonactionable opinion. Moreover, the court "struck" La Liberte's defamation claim--and imposed attorneys’ fees (to be assessed)--under California's Anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute for failure to establish "a probability that the plaintiff will prevail." Cal. Civ. Proc. Code § 425.16(b)(1), (c)(1). La Liberte appeals on the grounds that she was not a limited purpose public figure, that both posts were defamatory, and that California's anti-SLAPP statute is inapplicable in federal court. Reid argues that the court erroneously denied Section 230 immunity as to her first post.

As a matter of first impression in this Circuit, we hold that California's anti-SLAPP statute is inapplicable in federal court because it increases a plaintiff's burden to overcome pretrial dismissal, and thus conflicts with Federal Rules of Civil Procedure 12 and 56 (Point I).

As to the merits, we agree with the district court that Reid cannot claim immunity under Section 230 of the Communications Decency Act (Point II). This lawsuit does not treat Reid as "the publisher or speaker of any information provided by another information content provider ." 47 U.S.C. § 230(c)(1) (emphasis added). To the contrary, she is the sole author of both allegedly defamatory posts.

We disagree with the rest of the district court's analysis under Rule 12(b)(6). La Liberte was not a public figure on the matter in controversy, primarily because she lacked the regular and continuing media access that is a hallmark of public-figure status. (Point III). Accordingly, she was not required to allege that Reid acted with actual malice as to either post. Moreover, the court erred by characterizing Reid's second post as nonactionable opinion (Point IV). That post could be interpreted as accusing La Liberte of engaging in specific racist conduct, which is a provable assertion of fact and therefore actionable.

BACKGROUND

The facts are plentiful but straightforward. Roslyn La Liberte is a California citizen who avows that she is "passionate about this country's immigration policies." (App. at 13.) She took a particular interest in California Senate Bill 54 ("SB 54"), a controversial 2017 law that limits cooperation between local law enforcement and federal immigration authorities. One provision is that state and local law enforcement officers are barred from disclosing (inter alia ) an alien's address and date of release from prison. Cal. Gov't Code § 7284.6(a)(1). To register her opposition, La Liberte attended city council meetings in several cities, speaking out at some of them to urge resistance. On June 25th, 2018, La Liberte attended one such meeting in Simi Valley, California, along with hundreds of other people, where she spoke for about two minutes (the "Council Meeting").

At some point during the Council Meeting, La Liberte was photographed interacting with a fourteen-year-old teenager who appears to be (and is) Hispanic (the "Photograph"). (See App. at 265.) The Photograph showed La Liberte with her mouth open and her hand at her throat in a gagging gesture. On June 28th, a social media activist named Alan Vargas tweeted the Photograph along with the following caption:

"You are going to be the first deported" [and] "dirty Mexican" [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast.

(App. at 67.) The Photograph went viral. The next day, Joy Reid, a personality on the MSNBC cable station, retweeted (i.e., shared) the Vargas tweet to her approximately 1.24 million followers. (La Liberte is not alleging defamation by Reid as to that communication.)

Later that same day (June 29), Reid posted the Photograph on her Instagram with the following caption:

He showed up to a rally to defend immigrants .... She showed up too, in her MAGA hat, and screamed, "You are going to be the first deported" ... "dirty Mexican!" He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y'all. It hasn't even really gone away.

(the "June 29 Post") (App. at 84.) Meanwhile, the teenager in the Photograph stated during an interview with Fox 11 Los Angeles that La Liberte did not yell any racial slurs and that their discussion was "civil." (App. at 38, 47.) Still, La Liberte began receiving hate mail, including threats of mutilation and recommendations that she commit suicide.

Two days later (July 1), Reid published another post about La Liberte, this time on Instagram and Facebook. This post juxtaposed the Photograph of La Liberte with the 1957 photograph showing one of the Little Rock Nine walking past a screaming white woman. Reid added the following caption:

It was inevitable that this [juxtaposition] would be made. It's also easy to look at old black and white photos and think: I can't believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove

(the "July 1 Post") (App. at 87.) La Liberte hired a lawyer, who contacted Reid on July 2 to demand that she take down the posts and apologize. Reid responded that evening by removing them from her accounts and issuing the following statement: "It appears I got this wrong. My apologies to Mrs. La Liberte and [the teenager]." (App. at 116.)

La Liberte sued Reid for defamation in the Eastern District of New York, claiming that Reid's June 29 and July 1 posts falsely accused her of yelling racist slurs at the teenager in the Photograph. Applying California law by agreement of the parties, the district court dismissed La Liberte's claim under Rule 12(b)(6) and struck it under California's anti-SLAPP statute. And since that statute mandates fee shifting, the court "granted [Reid] leave to seek attorneys’ fees and costs." (App. at 279.)

DISCUSSION

We review de novo a district court's grant of a motion to dismiss, "constru[ing] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (quoting Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) ). Likewise, whether California's anti-SLAPP statute can be applied in federal court raises a question of law, which we review de novo . Knight v. State Univ. of N.Y. at Stony Brook, 880 F.3d 636, 640 (2d Cir. 2018) ; Adelson v. Harris, 774 F.3d 803, 807, 809 (2d Cir. 2014).

I

We begin with the procedural issue posed by the court's decision to strike La Liberte's defamation claim under California's anti-SLAPP statute. For a category of cases related to a defendant's speech, that statute subjects any claim to dismissal "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Cal. Civ. Proc. Code § 425.16(b)(1). Many states have enacted "anti-SLAPP statutes" with the idea that they provide breathing space for free speech on contentious public issues. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir. 2015). The aim is "to decrease the ‘chilling effect’ of certain kinds of libel litigation and other speech-restrictive litigation ... by making it easier to dismiss defamation suits at an early stage of the litigation." Id. (internal quotation marks omitted) (quoting Eugene Volokh, The First Amendment and Related Statutes 118 (5th ed. 2014)).

Specifically, California's anti-SLAPP statute was enacted to provide "an efficient...