Federal Court Dismisses “Kung Flu” Lawsuit Against Trump – JONATHAN TURLEY

The Chinese American Civil Rights Coalition garnered national attention in the media where former President Donald Trump is being sued for his use of such terms as the “Chinese Virus,” “China Virus,” “Wuhan Flu,” and “Kung Flu.” I wrote earlier that the lawsuit was so clearly barred under the First Amendment that Rule 11 sanctions might be sought after a dismissal.

While Southern District of New York Judge John Koeltl does not mention sanctions, he does categorically dismiss the actions on various grounds. First, he notes that, as a matter of jurisdiction, “[t]he complaint does not allege that any statement was made in New York, although it alleges that many statements were made in tweets or press conferences.” It found that it lacked personal jurisdiction.

The court then found that the filing could not maintain a group libel theory. We have previously discussed this tort theory. Such lawsuits are very difficult to maintain.  In Neiman-Marcus v. Lait (1952), a New York federal district court addressed a defamation claim arising from the publication of the book “U.S.A. Confidential.” The author wrote that “some” models and “all” saleswomen at the Neiman-Marcus department store in Dallas were “call girls.” It also claimed that “most” of the salesmen in the men’s store were “faggots.” The store had nine models, 382 saleswomen and 25 salesmen. The court found the size of the group of women was too big to satisfy a group libel standard. However, the size of the group of salesmen was viewed as sufficiently small to go to trial.

In this case, Judge Koeltl wrote:

To state a claim for defamation under New York law, a plaintiff must allege, among other elements, a statement that is “of and concerning” the plaintiff. However, “[u]nder the group libel doctrine, when a reference is made to a large group of people, no individual within that group can fairly say that the statement is about him, nor can the ‘group’ as a whole state a claim for defamation.” The group libel doctrine thus defeats the “of and concerning” element of a defamation claim. The group libel doctrine can be overcome only by a showing that the “the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference to the member.”

In this case, the plaintiff alleges that the defendant described the SARS-CoV-2 virus as the “Chinese virus,” among other names. On the plaintiff’s own allegations, the phrase refers to at least 22.9 million individuals. It is thus “a reference … to a large group of people,” and the plaintiff has made no showing that “the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference” to any particular member. The plaintiff’s allegations therefore cannot support a claim for defamation [on behalf of its members] under the group libel doctrine.

The plaintiff organization also plainly does not allege a defamation claim on its own behalf, given that the complaint contains no allegations that the defendant made any statements about the plaintiff organization, and indeed the plaintiff organization was founded after all of the statements in the complaint were allegedly made. Accordingly, the complaint fails to state a claim for defamation of the plaintiff or of the plaintiff’s members….

[T]he plaintiff has [also] failed to state a claim for either intentional or negligent infliction of emotional distress. The elements of intentional infliction of emotional distress are “(l) extreme and outrageous conduct; (2) the intentional or reckless nature of such conduct; (3) a causal relationship between the conduct and the resulting injury; and (4) severe emotional distress.” The same test of extreme and outrageous conduct has also been applied to causes of action for negligent infliction of emotional distress. Negligent infliction of emotional distress also may be alleged on a “bystander” theory when a person is “threatened with physical harm as a result of defendant’s negligence[,] and consequently … suffers emotional injury from witnessing the death or serious bodily injury of a member of her immediate family”; or on a “direct duty” theory when a plaintiff “suffers an emotional injury from defendant’s breach of a duty which unreasonably endangered her own physical safety.” …

As an initial matter, the plaintiff’s claims for intentional and negligent infliction of emotional distress fail because they are based on the same alleged statements that give rise to the claim for defamation. They are therefore duplicative of the claim for defamation, and should be dismissed on that basis….

The claim for intentional infliction of emotional distress fails for the additional reason that the conduct alleged by the plaintiff is not so extreme or outrageous as to be covered by the tort of intentional infliction of emotional distress. The remarks at issue referred to the geographical origin of the virus rather than the responsibility of the millions of Asian Americans who had nothing to do with the virus. To fall within the ambit of the tort, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The comments in this case fall well short even of the language that courts have found insufficiently extreme or offensive to support an infliction of emotional distress claim….

The claim for negligent infliction of emotional distress fails because the conduct alleged does not rise to the level of extreme and outrageous conduct that has been found sufficient to justify liability, and the plaintiff has failed to assert sufficient allegations to assert a claim under the “bystander’ theory or the “direct duty” theory….

The Court also holds that this is all protected speech under the First Amendment:

Finally, the plaintiff’s claims for intentional or negligent infliction of emotional distress fail for the additional reason that imposing liability for the alleged statements would violate the First Amendment. In Snyder v. Phelps (2011), the Supreme Court held that even where extreme and outrageous speech on a matter of public concern causes emotional distress to another, the First Amendment bars recovery in a civil damages action for the intentional infliction of emotional distress. “In public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” No matter how deplorable the plaintiff finds the defendant’s remarks, the First Amendment precludes civil liability for the remarks in order to protect the right to free and robust debate on matters of public concern, which the origin of the SARS-CoV-2 virus plainly is….

I am still concerned about the filing of such lawsuits as press releases with legal captions attached. This lawsuit was jurisdictionally and constitutionally flawed from the outset.

jonathanturley

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