Monday, September 23, 2019

Southern Poverty Law Center's "hate group" designation isn't false advertising, false association

Coral Ridge Ministries Media, Inc. v., Inc., No. 17cv566-MHT, 2019 WL 4547064 (M.D. Ala. Sept. 19, 2019)

Coral Ridge sued the Southern Poverty Law Center (SPLC),, and the AmazonSmile Foundation. It alleged that, “because of its religious opposition to homosexual conduct, SPLC has designated it as a ‘hate group’ and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.” This allegedly constituted defamation, false association [!] and false advertising under the Lanham Act; Coral Ridge also alleged that it had been excluded from the AmazonSmile charitable-giving program based on religion, in violation of Title II of the Civil Rights Act of 1964.  The court granted defendants’ motion to dismiss.

The court considered whether “anti-LGBT hate group” was defamatory—the “anti-LGBT” part wasn’t contested, but the court considered it as an inseparable part of SPLC’s use of “hate group” and thus it mattered to whether “hate group” was defamatory: SPLC made clear that Coral Ridge’s designation was with respect to LGBT people specifically. Coral Ridge was a public figure.

Coral Ridge pled that “A hate group is legally and commonly understood as one that engages [in] or advocates crime or violence against others based on their characteristics.” Whether the categorization was false/falsifiable thus depended on whether a required trait of “hate groups” is engaging in or advocating crime or violence.  Here, the allegation was conclusory and not supported by any facts, e.g. dictionary or other definitions.  “If courts considering motions to dismiss were obligated to accept as true plaintiffs’ factually unsupported definitions of words, concepts, and terms, it would make a mockery of Federal Rule of Civil Procedure 12(b)(6)’s pleading standard. Requiring courts to accept as true plaintiffs’ pleaded definitions of words would be particularly inappropriate in public-figure defamation suits such as this one, where ‘there is a powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending against expensive yet groundless litigation.’”

In addition, Coral Ridge’s definition was contradicted by other facts that it pled/cited/sought judicial notice of.  The variety of uses of the term from judicial opinions, the FBI, and the Anti-Defamation League directly contradicted Coral Ridge’s allegation limiting the term to advocates/committers of violence. The FBI defines “hate group” as, “An organization whose primary purpose is to promote animosity, hostility, and malice against persons of or with a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity which differs from that of the members or the organization, e.g., the Ku Klux Klan, American Nazi Party.” The ADL defines a “hate group” as “an organization whose goals and activities are primarily or substantially based on a shared antipathy towards people of one or more different races, religions, ethnicities/nationalities/national origins, genders, and/or sexual identities. ... “  Neither required crime or violence.

The SPLC itself defines “hate groups” as those groups that “have beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics.” This itself undermined Coral Ridge’s conclusory allegation about how “hate group” is “commonly understood,” given that Coral Ridge also pled that, “[a]s a result of SPLC’s position as the alleged ‘premier U.S. nonprofit organization monitoring the activities of domestic hate groups and other extremists,’ ... SPLC’s Hate Map [and other ‘hate group’ materials, goods, and services] reach a large number of people in every state in the United States and beyond.” This prominence made it less plausible that some other definition of “hate group” was controlling. 

And Coral Ridge’s definition was inconsistent with common sense.  The FBI and ADL definitions also showed that there wasn’t a single, commonly understood meaning.  The ADL, for example, didn’t require promotion of the views at issue, while the FBI did.

For related reasons, Coral Ridge couldn’t plausibly allege that “hate group” was falsifiable; was actually false; or that SPLC made the designation with “actual malice.” “Similar to the terms ‘fascism,’ ‘radical right,’ and ‘political Marxist,’ the term ‘hate group’ also suffers from a ‘tremendous imprecision of the meaning and usage ... in the realm of political debate.’”  It might be possible to falsify in some circumstances—if aimed at “a middle-school chess team with no views on anything other than chess strategy”—but not here, where Coral Ridge loudly touts its opposition to recognizing LGBT equality.

For the same reasons of openness in definition, the facts pled didn’t allow the court to draw the reasonable inference that the defendant, “instead of acting in good faith, actually entertained serious doubts as to the veracity of the published account, or was highly aware that the account was probably false.” Even if the court accepted that there was a single, commonly understood meaning of “hate group” requiring that the group engage in or advocate crime or violence, creating a significant discrepancy between the commonly understood meaning and SPLC’s definition, that still wouldn’t be enough, given that Coral Ridge also pled that SPLC held itself out as an expert on hate groups and widely disseminated its own definition. That was far more consistent with sincere belief than with actual malice.  “[E]ven if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of ‘hate group’ would be akin to punishing a speaker for advocating new conceptions of terms like ‘terrorist,’ ‘extremist,’ ‘sexist,’ ‘racist,’ ‘radical left wing,’ ‘radical right wing,’ ‘liberal,’ or ‘conservative.’ Punishing speakers to preserve status quo ideas would be anathema to the First Amendment.”

Lanham Act claims: SPLC allegedly engaged in false advertising by falsely designating Coral Ridge a “hate group” on its Hate Map, disseminating the Map and “hate group” designation in connection with reports and trainings, and engaging in fundraising focused on the Hate Map and “hate group” designations. And Coral Ridge alleged that the use of its trademarked name on the Hate Map was likely to cause confusion as to Coral Ridge’s “association” with other hate groups on the Map, such as the Ku Klux Klan and the American Nazi Party. Unsurprisingly, neither of these worked.

The court’s treatment of Coral Ridge as a public figure and this dispute as involving a matter of serious public interest structured its Lanham Act analysis. “[W]hen Coral Ridge, as a public figure, entered the public debate about gay rights, it took on the risk that it and its goods and services would be adversely affected.” And simply because a public figure sells goods or services shouldn’t give it an advantage over public figures that don’t. Thus, even in asserting Lanham Act claims, Coral Ridge would have to show actual malice. [This reasoning conflicts with the Third Circuit’s Blue Cross/Blue Shield case, which says that the substantive limits on the Lanham Act—specifically the commercial speech part—are sufficient to protect the speech interests of those targeting public figures, but the result is perfectly consistent.]

Coral Ridge argued that SPLC used the Hate Map and “hate group” designations to promote and make money from Hate-Map-related “goods and services.” But reports, trainings, and other informational services aren’t commercial speech, even if they are sold. Nor did use of the Hate Map and “hate group” designations in fundraising mean that SPLC’s designations should receive a lesser level of First Amendment protection. The Supreme Court has often treated fundraising speech as deserving of the highest level of protection, based on “the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech ..., and ... that without solicitation the flow of such information and advocacy would likely cease.”

The legislative history behind requiring both “commercial advertising and promotion” and false or misleading representations “of fact” further supported these conclusions. As one representative said, the categories of speech excluded from the coverage of the Act “are the type which raise free speech concerns, such as a Consumer Report which reviews and may disparage the quality of stereo speakers or other products, misrepresentations made by interested groups which may arguably disparage a company and its products because of the company’s failure to divest its South African holdings, and disparaging statements made by commentators concerning corporate product liability and injuries to the public (e.g., A.H. Robins and the Dalkon shield cases, or the Manville Corporation asbestos cases). All of these would be judged by first amendment law (including New York Times v. Sullivan) and not section 43(a) law ....”  [Note that none of this required actual malice, which is a really bad idea to require just because the target of false advertising is a public figure; the commercial advertising/promotion limit is far better.]

Anyway, regardless of constitutional limits, the false advertising and false association claims weren’t even plausible. False advertising: not falsifiable; not in commercial advertising or promotion because not commercial speech.  Neither the Hate Map nor the “hate group” designations plausibly propose a commercial transaction. Nor were they plausibly “expression related solely to the economic interest of the speaker and its audience.” Even if the Hate Map is a “fundraising tool,” the complaint alleged that SPLC wanted to shut “hate groups” down, which isn’t an economic interest. The complaint also alleged that the audience for the Hate Map includes government agencies that seek information about “hate groups,” presumably not solely or even primarily for economic reasons but instead for law enforcement.  Even assuming there was an “economic element” related to SPLC’s fundraising, that wasn’t enough.  Charitable fundraising is often highly protected because it’s inextricably intertwined with fully protected speech, and so it was here. Likewise, even assuming that SPLC generates fees from trainings and has sold the contents of the Hate Map to other organizations, that still wasn’t commercial speech.

Nor was the “hate group” designation plausibly made for the purpose of influencing consumers to buy defendant’s goods or services, which is an additional part of the Lanham Act test for commercial advertising or promotion. Rather, the complaint alleged that SPLC’s “very purpose for placing the Ministry on the Hate Map was to harm the reputation of the Ministry as to lower it in the estimation of the community and to deter third persons from associating or dealing with the Ministry.”  Coral Ridge conclusorily alleged that the purpose of using Coral Ridge’s mark was “to influence the relevant consumers to buy SPLC’s goods and services, in advancement of SPLC’s publicly stated goal of destroying the Ministry and the other organizations that SPLC has placed on its Hate Map.” But that wasn’t enough; it contained its own refutation.

Nor did the complaint allege sufficient dissemination to the relevant purchasing public. [This holding, like the actual malice holding, makes me itch. It can and will be cited by ordinary defendants in ordinary false advertising cases.]  Coral Ridge alleged that the “relevant purchasing public” was “those people and those organizations that engage in charitable giving to tax-exempt organizations.” But that was too high a level of generality, given the variety in the nonprofit world “just as it would make no sense to consider the relevant purchasing public the same for a subway-car manufacturer and a health-food store simply because they are both for-profit organizations.” Given the allegations of the complaint, Coral Ridge’s industry was Christian television and media. There was no allegation of sufficient dissemination through that relevant purchasing public, or of explicit targeting of that public.

False association: Coral Ridge didn’t plausibly plead likely confusion as to association.  Coral Ridge’s argument is a little different here, because it’s not claiming false association with SPLC—the usual false association claim.  Still, the same First Amendment concerns weighed heavily on the court. “The Lanham Act must be construed narrowly to avoid impinging on speech protected by the First Amendment.” Furthermore, citing the Radiance Foundation v. NAACP case, the court noted that § 1125(a)(1)(A) “is not designed to protect mark holders from consumer confusion about their positions on political or social issues…. Actual confusion as to a non-profit’s mission, tenets, and beliefs is commonplace, but that does not transform the Lanham Act into an instrument for chilling or silencing the speech of those who disagree with or misunderstand a mark holder’s positions or views.”

Thus, the proper meaning of the Lanham Act’s requirement of likelihood of confusion as to the “association of a person with another” means “confusion as to whether the seller or the trademark holder is associated with another person or organization by virtue of a legal or other relationship—not whether the trademark holder belongs in the same category as, or might be associated in some other vague sense with, another person or organization.”  Not just any “mental association” is enough. For example, we don’t want a health food producer to be able to sue for false association “because a supermarket advertised the health food company’s products next to those of a company that produces junk food on the theory that consumers might falsely ‘associate’ the junk food with the health food company’s trademark. Furthermore, such a broad interpretation of ‘association’ could be applied to a wide range of protected speech, and would allow companies to shield themselves from valid criticism.”

Thus, Coral Ridge didn’t plausibly plead that the public was likely to be confused into believing, based on SPLC’s use of Coral Ridge’s trademark on the Hate Map and in its “hate group” designation, that Coral Ridge had an actual relationship any other group on the Map.

Title II discrimination claim against Amazon: These are public accommodation claims.  Even assuming that the Amazon defendants were places of public accommodation, Coral Ridge didn’t plausibly plead that admission to AmazonSmile was protected by the statute, or that it was subject to discrimination on the basis of religion.  Specifically, the AmazonSmile program wasn’t a service, privilege, etc. that “serves the public” and thus covered by Title II; among other things, it excluded all natural persons and allowed in only approved 501(c)(3) entities. Constitutional avoidance also supported this holding, since the court didn’t want to essentially force Amazon to donate to Coral Ridge. The Amazon defendants don’t want to donate money to organizations that SPLC classifies as “hate groups.” Even if it’s Amazon’s customers choosing the organization they support, they choose from among Amazon’s offerings, and it’s Amazon that sends the money.

Separately, it wasn’t plausible that Coral Ridge was discriminated against based on its religion, rather than on its anti-LGBT stances.  Coral Ridge argued a disparate impact theory; even if Title II recognizes such claims, Coral Ridge didn’t allege even an elementary statistical disparity between religious and nonreligious, or Christian and non-Christian, entities in the SPLC classifications. It was not enough to allege that 501(c)(3) groups not deemed “hate groups” by SPLC were allowed into AmazonSmile, because being deemed a hate group isn’t a protected trait.

Nor did Coral Ridge plausibly allege intentional discrimination by alleging that “Amazon specifically chose SPLC’s on-its-face religiously discriminatory hate group criteria as its eligibility standard.” This allegation was contradicted by Coral Ridge’s more specific allegation that SPLC defines a “hate group” as one that has “beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics.” That’s not “on-its-face religiously discriminatory.” It wasn’t sufficient to allege that the “SPLC placed [Coral Ridge] on the Hate Map because of [Coral Ridge’s] religious beliefs regarding LGBT issues.” “[T]he fact that Coral Ridge’s opposition to homosexual conduct happens to be rooted in its religious beliefs does not mean that SPLC targeted Coral Ridge because of its religious beliefs, as opposed to its belief, full stop, regardless of whether that belief is religiously rooted.” The Amazon defendants’ failure to let Coral Ridge in after this case began didn’t convert its exclusion into intentional discrimination.

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