Cheng v. Neumann ( 2022 )

United States Court of Appeals
For the First Circuit
No. 22-1124
DANA CHENG; EPOCH GROUP, INC., d/b/a Epoch Media Group,
Plaintiffs, Appellants,
v.
DAN NEUMANN; MAINE PEOPLE'S ALLIANCE, d/b/a Beacon,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Christopher J. Bakes, with whom Kip Joseph Adams, Bryan Paul
Sugar, Lann G. McIntyre, and Lewis Brisbois Bisgaard & Smith LLP
were on brief, for appellants.
John-Mark Turner, with whom Christopher Cole, Sheehan,
Phinney, Bass & Green, P.A., Tracy D. Hill, and Drummond Woodsum
were on brief, for appellees.
Carol J. Garvan, Zachary L. Heiden, Anahita Sotoohi, and Brian
Hauss on brief for American Civil Liberties Union and American
Civil Liberties Union of Maine, amici curiae.
October 25, 2022
LYNCH, Circuit Judge. Dana Cheng and Epoch Group sued
Maine People's Alliance and Dan Neumann, its reporter, in the U.S.
District Court for the District of Maine. The suit asserted that
the defendants' coverage of a presentation given by Cheng on a
panel at a Windham, Maine forum co-sponsored by the Maine
Republican Party and the Christian Civic League was defamatory and
constituted false light invasion of privacy and intentional and
negligent infliction of emotional distress. The defendants moved
to dismiss, asserting First Amendment and various state-law
defenses. The district court granted the motion to dismiss in a
thoughtful opinion. See Cheng v. Neumann, No. 21-cv-00181, 2022
WL 326785 (D. Me. Feb. 3, 2022). Because the plaintiffs have not
plausibly alleged defamation under First Amendment principles, we
affirm.
I.
We draw the facts from the plaintiffs' complaint,
"documents attached to or fairly incorporated into the complaint,"
"facts susceptible to judicial notice," and "concessions in
plaintiff[s'] response to the motion to dismiss." Lemelson v.
Bloomberg L.P., 903 F.3d 19, 21 (1st Cir. 2018) (quoting Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir.
2012)).
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Dana Cheng, a New York resident, is the vice president
and co-founder of The Epoch Times, a print and online newspaper,
also in New York.
Maine People's Alliance, a Maine non-profit corporation,
publishes an online media outlet named Beacon. On June 16, 2021,
Beacon published an article written by Dan Neumann titled "Maine
GOP hosts speaker present at Jan. 6 Capitol assault" (the
"Article"). The Article stated, in relevant part:
The Maine Republican Party co-sponsored a
community forum in Windham on Monday evening
that included as a panelist a far-right media
personality and conspiracy theorist who has
said she was among the supporters of former
President Donald Trump who were present at the
riot at the U.S. Capitol on Jan. 6.
. . .
Dana Cheng, vice-president of the right-wing
multi-language newspaper and media company
Epoch Times, was invited by the Gray
Republicans to brief their members about the
threats posed to Americans by the Chinese
government.
. . .
The day after the insurrection that left five
people dead, Cheng said on a Denver radio
program that she was present at the Capitol
when it was breached, but was not at the front
of the crowd and did not enter the building.
Cheng alleged during the radio interview that
the violence that day was perpetrated by anti-
fascist infiltrators -- a false refrain echoed
throughout conservative media in the days
after the insurrection.
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"We have got photos from our readers that
there were some antifa people," she said.
"They have seen a few people try to push into
the building, some got into the building.
They were the same people that were in the
antifa movement."
Since Trump's loss to President Joe Biden,
Cheng's Epoch Times has consistently
questioned the election results. The news
outlet is partially funded by far-right media
financier Robert Mercer and has promoted anti-
vaccine misinformation and an array of pro-
Trump conspiracy theories such as QAnon,
leading the New York Times to call the outlet
a "global-scale misinformation machine."
The Article included a link to a recording of Cheng's appearance
on The Kim Monson Show, a Denver radio show and podcast. That
link provided access to the statements actually made during that
show. The Article also referred to statements made by the chair
of the Maine Republican Party regarding the Capitol assault. The
Article and a transcript of Cheng's radio appearance are attached
in their entirety as Exhibits A and B hereto.
On January 7, 2021, the day after the attack on the U.S.
Capitol, Cheng had appeared on The Kim Monson Show as a repeat
guest. When asked about the events of January 6, Cheng stated:
Yesterday I was at a rally in the morning. I
went to a -- a lot of people, people, people
were very peaceful relatively and then people
were excited and when Trump was speaking. So
later on at the Capitol, I was there but I was
not on the right front, so I did not see with
my own eyes what happened when some people
broke into the building. I was -- most people
there, to my eyes, had been very peaceful. So
those on the front, I -- we have got photos
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from our readers that there's a -- there were
some antifa people infiltrating in, and they
have seen a few people trying to push, push
into the building and some got into the
building and some photos that they could see
they are the same people that were in the
antifa movement. We got some photos sent by
readers.
So no matter who was involved, to us, we're
very fully aware with the communism strategy
-- and it happened in China, it happened in
Hong Kong. The easiest way to ruin a movement
or a protest is to lead a few people to go
extreme. That's the fastest way to ruin a
protest or movement. So I don't think if it's
random and it's like, it's not planned. I
think some people planned it. Who was
involved and who tried to plot this, it's not
clear yet.
Pressed by Monson on whether she could say "for sure" that anti-
fascist ("antifa") infiltrators were involved in breaching the
Capitol, Cheng replied: "We are in the process of confirming those.
And that is a familiar strategy from communists." Cheng also
stated that "it [was her] opinion that China has been deeply
involved in this election fraud."
Cheng and Epoch Group (publisher of The Epoch Times)
sued Neumann and Maine People's Alliance in federal court in Maine
under diversity jurisdiction, alleging defamation based on the
statements in the Article. Cheng also asserted the other claims
previously described.
As relief, the plaintiffs sought a retraction of the
Article in its entirety, an injunction enjoining the defendants
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"from further publication of any false, malicious, defamatory or
materially misleading comments regarding Plaintiff[s]," money
damages, punitive damages, and other relief.
The defendants moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) and New York's anti-SLAPP statute. The
district court granted the motion. This timely appeal followed.
II.
We review a district court's grant of a motion to dismiss
a defamation suit de novo. McKee v. Cosby, 874 F.3d 54, 59 (1st
Cir. 2017); see also Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 499 (1984) (stating general principle that, in First
Amendment cases, appellate courts have "an obligation to 'make an
independent examination of the whole record' in order to make sure
that 'the judgment does not constitute a forbidden intrusion on
the field of free expression'" (quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 284-86 (1964))). We "accept as true the
complaint's well-pleaded factual allegations" and "draw all
reasonable inferences in favor of the non-moving party." McKee,
874 F.3d at 59. We do not credit legal labels or conclusory
statements, but rather focus on the complaint's non-conclusory,
non-speculative factual allegations and ask whether they plausibly
narrate a claim for relief. Lemelson, 903 F.3d at 23.
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A.
We first consider the plaintiffs' defamation claims.
"Modern defamation law is a complex mixture of common-law rules
and constitutional doctrines." McKee, 874 F.3d at 60 (quoting Pan
Am Sys., Inc. v. Atl. Ne. Rails & Ports, Inc., 804 F.3d 59, 64
(1st Cir. 2015)). Here, we bypass the parties' choice-of-law
disputes as to whether Maine or New York law (including either
state's anti-SLAPP statute) applies. Rather, we look to
dispositive First Amendment principles. See Lemelson, 903 F.3d at
23 (taking a similar approach); Schatz, 669 F.3d at 56 (same).
We focus on two such principles. We have no need to
reach further First Amendment principles concerning public figures
and the pleading requirements for actual malice.
As to the first principle, where challenged statements
are published by a media defendant and involve matters of public
concern, there can be no liability unless the statements are false.
See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986);
see also, e.g., Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517
(1991) (reiterating this principle); Milkovich v. Lorain J. Co.,
497 U.S. 1, 19-20 (1990) (same); Veilleux v. Nat'l Broad. Co., 206
F.3d 92, 108 (1st Cir. 2000) (same). The district court correctly
held that the Article was published by media defendants and
concerned matters of public concern. See Cheng, 2022 WL 326785,
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at *4, *6.1 Such a falsity must be material, not merely a minor
inaccuracy. See Pan Am, 804 F.3d at 66; Veilleux, 206 F.3d at
108; see also Air Wisc. Airlines Corp. v. Hoeper, 571 U.S. 237,
247 (2014) ("A 'statement is not considered false unless it would
have a different effect on the mind of the reader from that which
the pleaded truth would have produced.'" (internal quotation marks
omitted) (quoting Masson, 501 U.S. at 517)).
As to the other First Amendment principle, "a statement
of opinion relating to matters of public concern which does not
contain a provably false factual connotation . . . receive[s] full
constitutional protection," as does "imaginative expression" and
"rhetorical hyperbole." Milkovich, 497 U.S. at 20 (first citing
Hepps, 475 U.S. 767; and then citing Hustler Mag., Inc. v. Falwell,
485 U.S. 46, 53-55 (1988)); see also Pan Am, 804 F.3d at 65;
Veilleux, 206 F.3d at 108. "[I]f it is plain that the speaker is
expressing a subjective view, an interpretation, a theory,
conjecture, or surmise, rather than claiming to be in possession
of objectively verifiable facts, the statement is not actionable."
Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000)
(alteration in original) (quoting Haynes v. Alfred A. Knopf, Inc.,
8 F.3d 1222, 1227 (7th Cir. 1993) (Posner, J.)). "The vaguer a
1 The plaintiffs have not developed any contrary argument
on this point and so have waived any challenge to this ruling.
See United States v. Valdez, 975 F.3d 63, 68 (1st Cir. 2020).
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term, or the more meanings it reasonably can convey, the less
likely it is to be actionable." Levinsky's, Inc. v. Wal-Mart
Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997).
We conclude that the plaintiffs have failed to plausibly
allege defamation both as to the Article as a whole and as to each
of the individual challenged statements.
The plaintiffs have, on appeal, largely focused on the
statements in combination to support an allegedly defamatory
inference.2 The plaintiffs argue that all of the challenged
statements, taken together, combine to convey a defamatory
inference as to the nature of Cheng's conduct. Such an inference,
once defined, is treated like a claim for direct defamation and is
subject to the same constitutional guardrails. See White v.
Fraternal Ord. of Police, 909 F.2d 512, 523 (D.C. Cir. 1990). We
conclude that the argued inference is not plausible.
The plaintiffs do not argue that the defamatory
inference purportedly at issue is that Cheng was present at the
Capitol as a protestor rather than as a journalist. Nor do they
argue that the inference reasonably drawn by readers is that Cheng
shared similar views as the protestors and that inference is
2 The plaintiffs have not challenged the district court's
conclusion that a statement regarding The Epoch Times' funding was
non-actionable because it was a minor inaccuracy that was
subsequently corrected. See Cheng, 2022 WL 326785, at *8 n.4.
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defamatory.3 Rather, the plaintiffs contend that the defamatory
inference at issue is that Cheng was a "full, enthusiastic, and
partisan participant in the violence of January 6, 2021" and/or
that she "was present as a violent participant in the January 6
violent assault on the Capitol." The defamatory inference on which
the plaintiffs stake their claim is that Cheng participated in the
violence on January 6.4
We reject the argument. The Article states that Cheng
was "present at [the] Jan. 6 Capitol assault" and "present at the
riot at the U.S. Capitol on Jan. 6." As discussed infra, these
statements are substantially true on their face because they
accurately place Cheng at the Capitol during the events of January
6. The passive language of these statements suggests mere
"presen[ce]" rather than active participation. Indeed, the
Article contains the explicit statement that Cheng "was not at the
front of the crowd and did not enter the [Capitol] building."
3 Cheng professed her belief in "election fraud" during
her appearance on The Kim Monson Show, and the plaintiffs have not
challenged as defamatory the Article's statement that The Epoch
Times "has consistently questioned the [2020] election results."
4 To the extent the plaintiffs are alleging that the
omission of information on Cheng's own past as a "political refugee
bound for America, fleeing violence and persecution" contributes
to this inference, this argument is misplaced for two reasons.
First, this was not a material omission sufficient to make anything
else in the Article defamatory. Second, this information was in
fact conveyed by the Article, which linked to the radio interview
in which Cheng discussed her past.
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Further, the photograph of Cheng in the Article shows her dressed
in business attire in what appears to be a library. Beyond that,
the Article provides a link to Cheng's own statements in the radio
appearance. Taking the Article as a whole, the argued inference
is implausible.
If considered individually, the challenged statements
are not actionable. Three of the challenged statements are not
actionable because they are substantially true. These are the
Article's headline and the statements that Cheng was "among the
supporters of former President Donald Trump who were present at
the riot at the U.S. Capitol on Jan. 6" and that she "alleged
during [her appearance on The Kim Monson Show] that the violence
that day was perpetrated by anti-fascist infiltrators."
A complaint cannot plausibly allege falsity where, as
here, materials incorporated into the complaint refute that very
assertion. "It is a well-settled rule that when a written
instrument contradicts allegations in the complaint to which it is
attached, the exhibit trumps the allegations." Clorox Co. P.R. v.
Proctor & Gamble Com. Co., 228 F.3d 24, 32 (1st Cir. 2000) (quoting
N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d
449, 454 (7th Cir. 1998)); see also Schatz, 669 F.3d at 55 n.3
(similar).
The Article's headline states: "Maine GOP hosts speaker
present at Jan. 6 Capitol assault." That statement is factually
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true. Cheng made clear in her radio show appearance, a transcript
of which is attached to the complaint, that she was present at the
Capitol on January 6 when the building was breached. The
plaintiffs instead argue that the phrase "present at Jan. 6 Capitol
assault" falsely placed Cheng in the middle of the violent breach
of the building rather than merely present on the Capitol grounds.
The headline merely states that she was "present" and is not
defamatory. Indeed, both parties agree that publishers are
afforded leeway in crafting attention-grabbing headlines.
The second statement -- that Cheng was "among the
supporters of former President Donald Trump who were present at
the riot at the U.S. Capitol on Jan. 6" -- is non-actionable for
the same reasons: Cheng stated as much during the interview.5
The third statement -- that Cheng "alleged during [her
appearance on The Kim Monson Show] that the violence [on January
6] was perpetrated by anti-fascist infiltrators" -- is also
substantially true. The plaintiffs argue that Cheng did not allege
antifa involvement in the Capitol assault but rather "merely stated
that certain people that submitted information to The Epoch Times
made such claims and that the information had not been verified."
5 The complaint does not allege that the "Trump supporter"
label is itself defamatory. Nor does it allege that Cheng is not
a supporter of former President Trump. Rather, the complaint
alleges that Cheng was not "'among the supporters of former
President Donald Trump' that day." (Emphasis added.)
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Cheng's statements during the interview strongly suggest to any
reader that individuals associated with antifa were involved in
the violence of January 6. Cheng's own statements were that:
[T]hose on the front, I -- we have got photos
from our readers that there's a -- there were
some antifa people infiltrating in, and they
have seen a few people trying to push, push
into the building and some got into the
building and some photos that they could see
they are the same people that were in the
antifa movement.
Cheng also stated that this was a "communism strategy" intended to
"ruin a movement . . . [by] lead[ing] a few people to go extreme"
and later expressed her belief in "election fraud." Pressed on
whether she could say definitively that antifa was involved, Cheng
responded that The Epoch Times was confirming the photographs and
reiterated that this was a "familiar strategy from communists."
The challenged statement does not permit an inference of falsity
because "it 'would [not] have a different effect on the mind of
the reader from that which the pleaded truth [or here, the truth
as evident from the source material] would have produced.'" Air
Wisc. Airlines Corp., 571 U.S. at 247 (quoting Masson, 501 U.S. at
517). The statement is substantially true.
The remaining statements are not actionable because they
are expressions of opinion and are unprovable as false. "Right-
wing," "far-right," and "conspiracy theorist" are vague,
judgement-based terms that "admit[] of numerous interpretations"
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and are not objectively provable as false.6 Levinsky's, 127 F.3d
at 130; see also Pan Am, 804 F.3d at 65 ("[C]ourts are 'likely' to
stamp as 'opinion' statements involving 'expressions of personal
judgment, especially as the judgments become more vague and
subjective in character.'" (quoting Gray, 221 F.3d at 248)). These
statements are also the sort of "rhetorical hyperbole," Pan Am,
804 F.3d at 65, common in much political discourse.7 Further, to
the extent these opinions are based on Cheng's statements in the
radio interview (e.g., about election fraud), they are not
actionable because the Article provides a link to the source
material, which, in the context of the Article, enables readers to
draw their own conclusions "based on facts accessible to everyone."
McKee, 874 F.3d at 63 (quoting Phantom Touring, Inc. v. Affiliated
Publ'ns, 953 F.2d 724, 730 (1st Cir. 1992)); see also id. at 61,
63-64 (finding defendant immunized from defamation liability on
6 Indeed, the complaint expresses the plaintiffs' opinion
that "Beacon, and its readers, are to the extreme political left."
7 See, e.g., M. Graham, Sununu: Bolduc a 'Conspiracy
Theorist Extremist;' Will Make it Harder for GOP to Win, NH
Journal, https://nhjournal.com/sununu-bolduc-a-conspiracy-
theorist-extremist-will-make-it-harder-for-gop-to-win (last
accessed Oct. 20, 2022) (reporting that New Hampshire GOP Governor
Chris Sununu described GOP Senate candidate Don Bolduc as a
"conspiracy-theory extremist"); E. Bradner, G. Krieg & D. Merica,
Four Takeaways from New Hampshire and Rhode Island Primaries, CNN,
https://www.cnn.com/2022/09/13/politics/new-hampshire-rhode-
island-primary-election-takeaways/index.html (last accessed Oct.
20, 2022) (reporting that Bolduc called Sununu a "Chinese communist
sympathizer").
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this basis). Finally, to the extent that the plaintiffs allege
that the statement that Cheng is a "far-right media personality"
is defamatory based on the "media personality" label, that
statement is substantially true. The materials incorporated into
the complaint reference a number of media appearances by Cheng.
The plaintiffs argue that the statements that The Epoch
Times "has promoted anti-vaccine misinformation and . . . QAnon"
are defamatory. The Epoch Times has in fact published articles
that include discussions of theories which in the opinions of
others could be called "anti-vaccine" and/or favorable to QAnon.8
The allegedly defamatory statements are opinions which reflect
subjective judgments about the nature of The Epoch Times' coverage.
See Pan Am, 804 F.3d at 65; Gray, 221 F.3d at 248. Indeed, the
subjective nature of these judgments is evident from the face of
the complaint. The complaint does not dispute that The Epoch Times
covers these two topics. The complaint instead attempts to build
a defamation claim on the argument that The Epoch Times "has never
promoted anti-vaccine misinformation" and has "reported on QAnon
but [has] never promoted the organization or its theories."
(Emphasis in original.) The challenged statements are non-
actionable opinions.
8 There is no challenge to the district court's decision
to take judicial notice of articles by The Epoch Times on these
topics under Rule 12(b)(6), see Cheng, 2022 WL 326785, at *7, so
we consider them.
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B.
On appeal, Cheng references in passing her claims for
false light invasion of privacy, intentional infliction of
emotional distress, and negligent infliction of emotional distress
but does not develop any argument as to these claims. Accordingly,
any challenge has been waived. See United States v. Valdez, 975
F.3d 63, 68 (1st Cir. 2020). The latter two claims also fail for
the independent reason that "a failed defamation claim cannot be
recycled as a tort claim for negligent or intentional infliction
of emotional distress." Shay v. Walters, 702 F.3d 76, 83 (1st
Cir. 2012).
III.
For the foregoing reasons, we affirm the dismissal of
the plaintiffs' complaint.
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EXHIBIT A
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EXHIBIT B
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