[1.] Today's decision by Judge Morrison England (E.D. Cal.) in Crowley v. Faison allows a lawsuit against Black Lives Matter Sacramento and codefendants to proceed, based on "BLM's posting of racist emails purportedly sent to BLM" by plaintiff—plaintiff claims, apparently with some evidence, that they were actually sent by someone impersonating her (who was later identified, as a result of a search warrant based on a criminal complaint, as likely to have been plaintiff's ex-tenant). Here's the factual backstory:
On or about April 25, 2021, an email address purportedly assigned to Karra Crowley (crowleykarra64@gmail.com) sent the following email to BLM via its general (info@blacklivesmattersacramento.com) address.
To whom it may concern,
I am sick and tired of hearing about you guys on the news. You guys are nothing but a bunch of domestic terrorists. Crying because you can't have your way about something. Why don't you just give up, your [sic] never going to be able to change the world. EVER!!!! GROW THE FUCK UP. White lives matter!!!!
Karra Crowley
Crowley Properties
Defendant Faisson responded later that same day on behalf of BLM, using an email address, tanya@blacklivesmattersacramento.com, that apparently belongs to her:
Yet you took the time out to email us and we don't know or care who you are or what you feel like. If you are tired of hearing about BLM stop contacting us.
That prompted the following retort from "Karra Crowley" the next day, April 26, 2021:
My husband and I are pillars in this community. We have always taught our children to fear African Americans!!!! You are nothing but thugs and low life's (sic). Seriously why don't you guys just stop with the bullshit, your (sic) never going to change the world, so give up. White people are kings!!!! You are peasants!!!!
A minute later, another email was sent with the single sentence "Let's bring slavery back!!!!"
Defendants then proceeded to post the above emails to BLM's Facebook page on April 26, 2021, at approximately 3:57 p.m. with the following explanatory note:
So this woman Karra Crowley has been emailing us and we figured she needs to be famous. She actually owns a business called Crowley Properties in Roseville but she lives in Loomis.
Karra Crowley states that just 18 minutes later, at approximately 4:15 p.m. she received a phone call from her assistant and was advised to look at both BLM's and Crowley Properties' Facebook pages because they were "blowing up" with hateful comments and threats. Ms. Crowley states that she subsequently looked at the pages and was horrified to read the statements attributed to her. Ms. Crowley states she proceeded to send the following response directly to Tanya Faison by email at 4:36 p.m.:
Tanya,
I do not know who sent you those hateful emails, but it was not me! That is not my email address and I have no idea who is behind this. Anyone who knows me knows I would NEVER EVER say those things nor would I use that filthy language. I would greatly appreciate it if you would remove your posts containing false information about me immediately.
Respectfully, Karra Crowley
While Ms. Crowley states she never received a response from Ms. Faison to this request, Defendants did add the following to BLM Facebook page less than an hour later, at 5:11 p.m:
HER [Karra Crowley's] INFORMATION HAS BEEN VERIFIED. I AM NOT GOING TO BE RESPONSIBLE FOR SHARING ADDRESSES AND PHONE NUMBERS BUT FOLKS … ESPECIALLY YOU LIGHTER HUED FOLKS COMING AND BEING DISRESPECTFUL … YOU NEED TO GET YOUR DUCKS IN A ROW BEFORE YOU COME HERE MAKING ACCUSATIONS
WE KNOW HER BUSINESS ADDRESS WE KNOW HER PO BOX
WE KNOW HER AND HER HUSBANDS HOME ADD (sic) SHE HAS BEEN VERIFIED
ROSEVILLE AND LOOMIS
Plaintiffs claim that almost immediately after Defendants' Facebook posts, they received a barrage of hateful comments both through phone calls, voicemail, and postings on Crowley Property's Facebook page. Those comments included accusations that Karra Crowley was "a sick racist freak" and "a garbage human." Other posts called on people "not to rent from her" or "support [a] business" run by this "disgusting human."
In addition, Defendants' posting themselves had, within just two days (by April 28, 2021), prompted 284 "Reactions," 120 "Comments," and 183 "Shares." Fox 40 News, a local television channel in Sacramento, contacted Mr. Crowley who "felt compelled to do an interview to try to mitigate the damage." Karra Crowley was also contacted by and gave interviews to the Sacramento Bee newspaper and three other news stations.
Karra Crowley herself posted a comment on Defendants' Facebook page which directly responded to the posts. Her response of April 27, 2021, the day after the postings were first made, stated as follows:
My name is Karra Crowley and I am NOT the person who wrote those despicable emails. The email crowleykarra64@gmail.com does not belong to me nor do I have any affiliation with it. I absolutely do not share the views expressed in those emails and anyone who knows me would confirm that. If you truly want to get to the bottom of this, you need to find out who created that email.
The following day, April 28, 2021, Karra Crowley received a death threat on her home phone number. On April 30, 2021, a sign on white poster board and suspended on shovels inserted into the ground (which Crowley interpreted as a threat to bury her) was placed across the street on a property facing the Crowleys' driveway. The sign read:
KARRA --- FUCK YOU, YOU RACIST CUNT!
*Be a decent person, it's not that hard just like it's not that hard to find someones (sic) address*
Even a month later, Christopher Crowley received texts containing utterly vile threats. The following May 25, 2021, message is illustrative:
You fucked with the wrong people old man. So what's going to happen is I'm first going to kill your ugly wife. I'm going to cut her from her smelly cunt all the way up to her throat then carefully take out her intestines and tack them to the wall. Then I'm going after your daughter. I am going to cut her stomach open and then pull her intestines out and shove them down her throat. I know where everyone lives. Oh yes. And if you think of calling the cops I don't believe they'll be able to help you before I get to everyone.
Other texts, sent the same day, indicated that Crowley's attorney was "a dead man and so are you and your cunt wife and daughter," promised that there would "be a mass shooting at your lawyers [sic] office tomorrow [with] multiple dead", and stated that "I may even kill your grandchild. You won't see it coming either."
According to Plaintiffs, Defendants still refuse to remove the offensive posts from BLM's Facebook page. Plaintiffs filed the present lawsuit on April 30, 2021, just four days after Defendants' postings to that page….
[2.] The court begins by concluding that plaintiffs had to show "actual malice" on defendants' part; I think that's not right, since under Gertz v. Robert Welch, Inc. (1974), private-figure plaintiffs—as plaintiffs here are likely to be—only have to show negligence to recover proven compensatory damages (including identifiable business losses as well as emotional distress damages). Metabolife, the case the court cites, did broadly say, "Because the defendants' speech addressed a matter of 'public concern,' Metabolife must show that the statements were false and made with 'actual malice'"; but in context I assume that this stems from Metabolife's indubitably having been a public figure. Still, the court concludes that plaintiffs introduced enough evidence to satisfy even the higher "actual malice" standard:
Defendants correctly point out that Plaintiffs must ultimately show that the challenged statements were both false and that they were made with "actual malice." Metabolife Int'l, Inc. v. Wornick (9th Cir. 2001)…. "[T]he actual malice standard is not satisfied merely through a showing of ill will or 'malice' in the ordinary sense of the term…. instead, [it] requires … that the statements were made with a reckless disregard for the truth." Consequently, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." As the Solano court went on to observe, whether or not the defendant "in fact entertained serious doubts as to the truth of the statement may be proved by inference, as it would be rare for a defendant to admit such doubts. A court typically will infer actual malice from objective facts."
Plaintiffs' Complaint avers that they neither "wrote [n]or sent the emails posted by Defendants" and that Defendants' statements that Karra Crowley sent the emails were false…. Less than an hour after BLM's posting of the messages and its "call-out" to make Crowley "famous," Karra Crowley wrote to Defendant Tanya Faison directly and explained that she had not written the emails and that an address not belonging to her had been used. Ms. Crowley asked that Faison "remove your posts containing false information about me immediately."
Defendants not only refused to do so, they also made yet another posting 35 minutes after Karra Crowley's email, at 5:11 p.m., stating that Crowley's information had "been verified, with Defendants knowing her home and business addresses and post office box number." Karra Crowley also made a posting herself on BLM's Facebook page the following day again disavowing the statements and identifying the specific email address used to make them as not belonging to her, but again Defendants refused to even respond, let alone take down the offensive posts.
Plaintiffs argue that this series of emails and postings, which are described in Plaintiffs' Complaint and further attached as exhibits by both parties to their motion papers, infer that Defendants knew or acted with reckless disregard as to the probable falsity of the emails allegedly sent by Ms. Crowley. As Plaintiffs point out, the inherent improbability of anyone actually sending such vile emails and attaching their name and business identification thereto made it necessary for Tanya Faison to report that Plaintiffs' identities and contact information had "been verified."
Moreover, those alleged "assurances" came only a matter of minutes after Karra Crowley had emailed Ms. Faison directly asking her to remove the false postings on grounds that she was not the author of the emails and they had not been sent from her address. And, the fact that Defendants posted the emails less than two hours after the last of three emails purporting to be from Ms. Crowley had been sent supports the not improbable inference that no verification whatsoever had been done beforehand despite Defendants' request that its followers make Plaintiffs "famous." The timing of these events supports an inference that Defendants acted with reckless disregard for the truth.
Finally, as Plaintiffs point out, "[w]hy would Defendants command their friends to make Plaintiffs famous" in the first place? Plaintiffs describe the only reasonable inference as follows:
The patently obvious reason is to harm Ms. Crowley, her husband and their business. In other words, Defendants intentionally incited their friends to do harmful things to Plaintiffs by Defendants' defamatory posts—which shows Defendants' ill will/or hatred towards Plaintiffs.
The hateful slew of postings and messages that Defendants' conduct engendered just that response—both personal threats to Plaintiffs, some of which were chillingly violent as described above, and threats to harm their business. [Note that this particular argument seems to me largely beside the point, given the court's recognition above that "actual malice" doesn't mean "ill will or hatred," but focuses solely on what the defendants knew was false or likely to be false. -EV]
Given all of the above, in this Court's view the postings, emails, and reasonable inferences therefrom show enough of a likelihood that Plaintiffs can demonstrate "actual malice" (through Defendants' malicious/reckless behavior) to withstand the anti-SLAPP motion to strike on that basis….
[3.] The court also rejected the 47 U.S.C. § 230 defense:
The so-called Communications Decency Act, 47 U.S.C. § 230 … provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" …. "§ 230(c) provides broad immunity for publishing content provided primarily by third parties." The Act "mandates dismissal if (i) [the defendant] is a 'provider or user of an interactive computer service,' (ii) the information for which [the plaintiff] seeks to hold [the defendant] liable was 'information provided by another information content provider,' and (iii) the complaint seeks to hold [the defendant] liable as the 'publisher or speaker' of that information." "In short, a person defamed on the internet can sue the original speaker, but typically cannot sue the messenger." …
[But i]mmunity under § 230 requires that the third-party provider, here the individual masquerading as Karra Crowley, have "provided" the emails to Defendants "for use on the Internet or another interactive computer service." Batzel v. Smith (9th Cir. 2003). Here, as Plaintiffs point out, the emails were sent directly to BLM Sacramento's general email address. "[I]f the imposter intended for his/her emails to be posted on BLM Sacramento's Facebook page, the imposter could have posted the email content directly to the Facebook page," yet did not do so. Those circumstances raise a legitimate question as to whether the imposter indeed intended to post on the internet, and without a finding to that effect the Act's immunity does not apply. {The requirement that materials be provided with an intent they be posted on the internet makes sense since, as Batzel v. Smith (9th Cir. 2003) notes, otherwise "users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet." This could result in "nearly limitless immunity for speech never meant to be broadcast over the Internet."}
These concerns are further amplified by the fact that Karra Crowley notified Defendants that she did not author the emails, and they did not come from her email address within 24 hours after the last email attributed to her was posted. Defendants nonetheless refused to take down the offending posts from its Facebook page, causing the hateful and threatening messages received by Plaintiffs to continue. As set forth above, one of the most disgusting of those messages, in which the sender graphically described how he or she was going to kill Karra Crowley and her daughter, was sent nearly a month later. [Again, I don't think this particular argument is legally relevant under § 230, though the others might be. -EV]
In addition, while the Act does provide immunity for materials posted on the internet which the publisher had no role in creating, here Defendants did not simply post the emails. They went on to suggest that Karra Crowley "needs to be famous" and represented that her "information has been verified", including business and home addresses.
{While Defendants appear to argue that they never actually claimed to have verified Ms. Crowley's identity as the actual sender of the offending emails, the Court finds any such argument unpersuasive in the context of Defendants' later posting that her "information has been verified" and "she has been verified." Posting such information literally on the heels of having published the emails on Defendants' Facebook page less than two hours later creates an inference that Defendants were advancing Ms. Crowley as the author. On a motion to dismiss, the court must adopt whatever plausible interest supports a valid claim.}
It is those representations [that Crowley's information has been verified -EV] that Plaintiffs claim are libelous, particularly after Defendants persisted in allowing the postings to remain even after they had been denounced as false, a decision which caused further harassment and threats to be directed towards Plaintiffs…. Plaintiffs remain "free under section 230 to pursue the originator of a defamatory Internet publication." …
[4.] And the court allowed plaintiffs to add an intentional infliction of emotional distress claim:
As set forth above, the timing of existing Defendants' Facebook postings suggests that they immediately posted the subject emails to the internet despite the inherent probability that an individual would not only identify herself and her business but send such racial offensive emails to the local representative of an organization at the forefront of race relation issues in this country.
Moreover, not only did Defendants post the emails, in essence they urged their followers to make Ms. Crowley "famous" by assuring them that they had "verified" her "information" and addresses in Roseville and Loomis. Then, when Ms. Crowley contacted Defendant Faison directly and said that the emails were not from her or even from her email address, Defendants declined to even consider her request to take the offensive messages off their website, which resulted harassment and death threats that persisted even a month later.
Because this Court cannot rule out a reasonable jury finding all of this to be outrageous conduct, amendment to include an intentional infliction of emotional distress cause of action is proper, particularly since amendment should be permitted with extreme liberality at this stage of the proceedings….
The post Libel Lawsuit Against Black Lives Matter Sacramento Can Go Forward appeared first on Reason.com.
