VDARE’s Libel Case Against N.Y. Times Thrown Out

From N.Y. trial court judge Lisa Headley in VDARE Found., Inc. v. N.Y. Times Co., decided July 20:

In this action, the plaintiff asserts claims for defamation arising from four articles. The plaintiff is seeking $700,000 in actual damages with punitive damages and costs.

First, in August 2019, the plaintiff alleges, inter alia, that the defendant, in a Times article “quoted the associate director of the Anti-Defamation League opining that while the term ‘kritarch’ has historically been used in a non-pejorative way to describe ‘rule by judges,’ more recently it has been ‘co-opted’ by extremists and taken on a different meaning.” The plaintiff argues that it was false and defamatory to report that the term, “kritarchy” had “suddenly been transformed into an anti-Semitic code word.”

Second, in September 2019, plaintiff alleges, inter alia, that the defendant published a story that referenced and included an underlined text hyperlink to the August 2019 article, and that it was defamatory to say that “a post on the plaintiff’s website used an anti-Semitic reference.”

Thirdly, in November 2019, plaintiff alleges, inter alia, that the defendant published an article about Stephen Miller, who cited “Peter Brimelow, the founder of the anti-immigration website VDARE, [who] believes that diversity has weakened the United States[.]” Further, the November article 2019 reported that “the SPLC ‘has labeled VDARE a ‘hate website’ for its ties to white nationalists[.]” The plaintiffs asserts that such statements about VDARE were false and defamed it.

Lastly, in May 2020, the plaintiff alleges that the defendant published a wire article from Reuters, and defamed the plaintiff when it reported, inter alia, that VDARE is accused of “race hatred,” “manipulating on-line readers by utilizing a ‘bot-farm’ of fake accounts,” and violating VDARE’s “501(c) status.”

The court granted the Times’ anti-SLAPP motion and dismissed the case; note that New York law requires “actual malice” (i.e., knowing or reckless falsehood) as to all statements on matters of public concern, whether brought by public figures or not:

This court finds that the plaintiff has not alleged actual malice, and fails to prove that terms such as “racist,” and “white supremacist” are not “non-actionable opinion.” This court further finds that such terms are considered to be non-actionable opinion, and cannot be shown as evidence of actual malice. Plaintiff sets forth no evidence to contradict the legal notion that such terms are non-actionable opinion, but merely states a public policy argument and cites to ambiguous case law, neither of which can defeat defendant’s motion to dismiss.

Specifically, the court finds that the plaintiff failed to submit persuasive evidence that defendant has acted with actual malice, and any evidence set forth by plaintiff merely illustrates, at most, journalistic negligence. Plaintiff argues that there is evidence that defendant had doubts about the truth of its statements regarding the articles about plaintiff, but sets forth no evidence to prove that allegation. Plaintiff’s arguments are conclusory in nature, and fail to provide factual evidence that defendant was “purposefully” avoiding the truth or had “ill will” towards plaintiff, or had “reckless disregard” in publishing articles about plaintiff….

This court further finds that the plaintiff failed to meet the heightened pleading standard required pursuant to the amended Anti-SLAPP law…. A plaintiff is … required to establish by “clear and convincing evidence” that there is a substantial basis in fact and law for its claim…. [P]laintiff has not met the heightened pleading standard required by law because plaintiff failed to establish by “clear and convincing evidence” that a claim for defamation exists….

Under the anti-SLAPP law, the Times “is entitled to recover its reasonable attorneys’ fees.”