Nat'l Coal. on Black Civic Participation v. Wohl

• Decision Date: 12 January 2021
• Docket Number: 20 Civ. 8668 (VM)
• Citation: 512 F.Supp.3d 500
• Parties: NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, et al., Plaintiffs, v. Jacob WOHL, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

512 F.Supp.3d 500

NATIONAL COALITION ON BLACK CIVIC PARTICIPATION, et al., Plaintiffs,

v.Jacob WOHL, et al., Defendants.

20 Civ. 8668 (VM)

United States District Court, S.D. New York.

Signed January 12, 2021

Aaron Joshua Gold, Amy Lynn Walsh, Rachelle Marie Navarro, Julie Gorchkova, Rene Kathawala, Orrick, Herrington & Sutcliffe LLP, New York, NY, David Brody, Lawyers' Committee for Civil Rights Under Law, Washington, DC, John Frederick Libby, Manatt, Phelps & Phillips, Los Angeles, CA, Michael Maruca, Orrick Herrington & Sutcliffe LLP, Washington D.C., DC, for Plaintiffs.

David Marc Schwartz, Gerstman Schwartz LLP, Garden City, NY, Randy Edward Kleinman, Law Offices of Gus Michael Farinella, PC, New York, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiffs National Coalition on Black Civic Participation ("NCBCP") and Mary Winter, Gene Steinberg, Nancy Hart, Sarah Wolff, Karen Slaven, Kate Kennedy, Eda Daniel, and Andrea Sferes (collectively, the "Individual Plaintiffs," and with NCBCP, "Plaintiffs") filed this action against defendants Jacob Wohl ("Wohl"), Jack Burkman ("Burkman"), J.M. Burkman & Associates, LLC ("J.M. Burkman & Associates"), Project 1599, and John and Jane Does 1 through 10 (collectively, "Defendants"). (See Complaint, Dkt. No. 11.) Plaintiffs allege that Defendants sent robocalls containing false information intended to prevent recipients from voting by mail through threats and intimidation in violation of Section 11(b) of the Voting Rights Act of 1965 ("VRA"), 52 U.S.C. § 10307(b), and Section 2 of the Ku Klux Klan Act of 1870 ("KKK Act"), 42 U.S.C. § 1985(3).

Now before the Court is Defendants’ letter motion requesting a pre-motion conference and seeking leave to file a motion to dismiss the Complaint. The Court construes the letter as a motion to dismiss¹ pursuant to Federal Rule of Civil Procedure ("Federal Rule") 12(b)(6) (the "Motion," Dkt. No. 58). For the reasons discussed below, the Motion is DENIED.

I. BACKGROUND

A. FACTS AND PROCEDURAL BACKGROUND ²

This Order assumes familiarity with the Court's prior Order granting Plaintiffs’ motion for a temporary restraining order, including the factual recitation contained therein. See "TRO Decision," Dkt. No. 38; see also Nat'l Coal. of Black Civic Participation v. Wohl, No. 20 Civ. 8668, 498 F.Supp.3d 457 (S.D.N.Y. Oct. 28, 2020).

In brief, Plaintiffs allege that in late August 2020, thousands of voters in the United States, including voters in Illinois, Ohio, New York, and Pennsylvania, received robocalls that conveyed the following message:

Hi, this is Tamika Taylor from Project 1599, the civil rights organization founded by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records for mail-in voting to track people for mandatory vaccines. Don't be finessed into giving your private information to the man, stay safe and beware of vote by mail.

Complaint ¶ 29.³

Plaintiffs allege that this robocall message contains various false statements, including: (1) the claim that police will use vote-by-mail information to track persons with outstanding warrants; (2) the assertion that vote-by-mail information will be used by debt collectors; and (3) the claim that the Centers for Disease Control and Prevention ("CDC") is seeking access to vote-by-mail information to conduct mandatory vaccinations.

Plaintiffs further allege that the robocalls were specifically designed to intimidate Black voters. Plaintiffs estimate that approximately 85,000 robocalls conveying this message were placed as of the filing of the Complaint. According to Plaintiffs, the calls targeted areas with large populations of Black voters, such as Detroit, Michigan, as well as urban areas with significant minority populations, such as New York City. Plaintiffs contend that the particular messages conveyed in the robocalls sought "to exploit racially charged stereotypes and false information" in order to dissuade Black voters from participating in the November 3, 2020 election. (Complaint ¶ 4.) Moreover, Plaintiffs allege that the purported speaker on the calls, Tamika Taylor, could be confused by call recipients with the mother of Breonna Taylor -- whose actual name is Tamika Palmer. Given the prominence of Breonna Taylor's name and story, Plaintiffs allege that this reference lent further apparent legitimacy, and therefore duplicitousness, to the robocalls.

The Complaint further alleges that it was Wohl's and Burkman's intent to interfere with the November 3, 2020 election. Plaintiffs contend that this intent was made clear, when, for example, according to a February 26, 2019 article in USA Today, Wohl told reporters that he and Burkman were planning "ways to discredit Democrats in the 2020 election with lies and other disinformation, using his large following on social media to cause disarray similar to what Russians did during the 2016 election."⁴ In addition, the Daily Beast published a document that Wohl later said was a draft of his business plan for the "Arlington Center for Political Intelligence."⁵ The goal of this plan was to "suppress turnout."⁶

The Individual Plaintiffs attest that the robocalls caused them to be concerned about voting by mail. For example, plaintiff Gene Steinberg, who has an eighteen-year-old nonviolent criminal conviction, described receiving the call as "particularly traumatic." (Steinberg Decl. ¶ 13.) The claim that law enforcement would use mail-in voters’ information to track persons with outstanding arrest warrants made Steinberg frightened and anxious given his criminal history.

Plaintiff Andrea Sferes also found the robocall to be distressing and "emotionally upsetting." (Sferes Decl. ¶ 9.) Having outstanding medical debt, Sferes began to doubt whether her information would be shared if she voted by mail, and she "had to try and convince [herself] that [the robocall message] was not true." (Id. ¶ 8.)

Plaintiff Nancy Hart, a journalist whose work focuses on the Black community in and around Pittsburgh, became "irate" when she received the call because she recognized it as a deceptive scheme designed to prey upon fears in the Black community about the police, predatory debt collectors, and government-mandated medical programs, and thereby scare Black voters from voting. (Hart Decl. ¶¶ 7-8.)

As a result of the robocalls, at least two Plaintiffs -- Steinberg and Winter -- decided against voting by mail, which they had originally planned to do, because of their fears of exposure to COVID-19. After receiving the call, Steinberg and Winter did not view voting by mail in the 2020 election as reliable.

Plaintiff NCBCP invests significant resources in the Black Women's Roundtable ("BWR"), an empowerment program that promotes Black participation in the Census and elections and engages in on-the-ground organizing. When the robocalls began in late August, NCBCP's BWR program in the Detroit area ("BWR Metro Detroit") learned that Detroit community members were receiving the calls. BWR Metro Detroit became concerned that the calls would intimidate Black voters from participating in the upcoming elections or scare Black voters who would have voted by mail into voting in person, thereby increasing their risk of contracting COVID-19. Accordingly, BWR Metro Detroit diverted resources allocated toward increasing Census participation to addressing the disinformation communicated in the robocalls. For example, BWR Metro Detroit's co-chair switched from assisting community members with the completion of their Census forms to responding to the robocalls’ disinformation.

B. PROCEDURAL HISTORY

Shortly after filing the Complaint, Plaintiffs moved for a temporary restraining order enjoining Defendants from engaging in any further communications in violation of the VRA or KKK Act. (See "TRO," Dkt. No. 12.) After hearing argument, the Court found that Plaintiffs had demonstrated a likelihood of success on the merits of their claims and that irreparable harm would result if a preliminary injunction was not issued. (See generally TRO Decision.) Therefore, the Court granted the motion, enjoined Defendants from engaging in communications in violation of the VRA or KKK Act, and further ordered Defendants to issue a curative robocall informing recipients of the Court's findings regarding the threatening and intimidating nature of Defendants’ original robocall. (Id. )

After the Court issued its TRO Decision, Defendants sought leave by letter to file a motion to dismiss the Complaint. (See Motion.) This Motion followed an exchange of letter correspondence between the parties in accordance with the Court's Individual Rules, which included Defendants’ letter dated November 17, 2020 (see Dkt No. 58-1), and Plaintiffs’ response dated November 24, 2020 (see Dkt No. 58-2). The Court denied leave to file a motion, finding that the pre-motion letters and material already contained in the record were sufficient for the Court to render its decision. (See Dkt. No. 61.) Nonetheless, Defendants submitted additional briefing regarding their motion to dismiss, (see Dkt No. 62), and Plaintiffs were provided an equivalent opportunity to respond (see Dkt. Nos. 63, 64). The Court has considered both the pre-motion letters and the parties’ supplemental briefing in connection with this Order.

C. THE PARTIES’ ARGUMENTS

Defendants argue that (1) the robocalls at issue do not actually violate either the VRA or KKK Act; (2) the robocalls constitute protected free speech under the First Amendment; (3) the Individual Plaintiffs have alleged no compensable harm and therefore do not have standing to bring this action; (4) the robocalls are legally compliant with Federal Communications Commission ("FCC") a...