NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1408
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ASLAN T. SOOBZOKOV,
Tscherim Soobzokov,
Appellant
v.
ERIC LICHTBLAU; HOUGHTON, MIFFLIN AND HARCOURT;
JOHN DOE; JANE DOE; ABC CORPORATIONS
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-15-cv-06831)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit L.A.R. 34.1(a)
November 3, 2016
Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges.
(Filed: November 4, 2016)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Aslan Soobzokov appeals an order of the District Court dismissing his claims
against publisher Houghton Mifflin Harcourt and author Eric Lichtblau. We will affirm.
I
In 2014, Houghton Mifflin published Lichtblau’s book, The Nazis Next Door:
How America Became a Safe Haven for Hitler’s Men. In that work, Lichtblau argues that
the United States government brought Nazis here after World War II for strategic
purposes. Among these alleged Nazis was Soobzokov’s father, Tscherim. According to
Lichtblau, Tscherim agreed to provide intelligence on the Soviet Union in exchange for
clemency and residency in the United States.
The Nazis Next Door also describes the challenges faced by the children of
accused Nazis. In researching this aspect of his book, Lichtblau spent “nearly seven full
days” with Soobzokov and later communicated with him by email and telephone. App.
151. Soobzokov makes a handful of appearances in the book—all of which emphasize his
unwavering belief in his father’s innocence.
After the book’s publication, Soobzokov sued Lichtblau and Houghton Mifflin for
defamation, invasion of privacy, and intentional infliction of emotional distress. The
District Court dismissed Soobzokov’s suit under Federal Rule of Procedure Rule 12(b)(6)
for failure to state a claim. Soobzokov now appeals.
2
II 1
We review the District Court’s order de novo. Fowler v. UPMC Shadyside, 578
F.3d 203, 206 (3d Cir. 2009). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
Soobzokov argues that the references to him in Nazis Next Door are defamatory. A
defamatory statement is “false and injurious to the reputation of another or exposes
another person to hatred, contempt or ridicule or subjects another person to a loss of the
good will and confidence in which he or she is held by others.” Romaine v. Kallinger,
537 A.2d 284, 287 (N.J. 1988) (internal citations omitted). In making this determination,
“the court must evaluate the criticized language according to the fair and natural meaning
which it would be given by persons of ordinary intelligence.” Decker v. Princeton
Packet, Inc., 561 A.2d 1122, 1125 (N.J. 1989) (internal citations omitted).
At the outset, we must distinguish Soobzokov’s legal claims from his general
grievances about the book. Soobzokov does not—and could not—assert a defamation
claim on behalf of his deceased father. 2 Rather, Soobzokov makes two claims in his own
1
The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291.
2
Given Soobzokov’s continuing belief in his father’s innocence, we understand
how his arguments could be read as being brought on behalf of Tscherim. See, e.g., App.
151 (alleging that “Lichtblau had written a horrendous defamatory book that was devoid
of truth and was clearly written to destroy Tscherim’s reputation”); Soobzokov Br. 5
(“Lichtblau falsely and brutally accused Tscherim of being a Nazi War Criminal during
World War II.”). But Soobzokov properly disclaims that theory, Soobzokov Resp. 2, and,
3
right: (1) that the descriptions of him are defamatory; and (2) that the descriptions of him,
in combination with the negative comments about his father, are defamatory.
A
Soobzokov claims that three references to him are defamatory under New Jersey
law. We agree with the District Court that these references do not constitute defamation. 3
The first references to Soobzokov appear in a chapter entitled “The Sins of the
Father,” which chronicles the experiences of the “sons and daughters of accused Nazis.”
Supp. App. 153. In that chapter, Lichtblau notes that Soobzokov believed “fervently in
his own father’s innocence” and that Soobzokov’s “years-long defense of his father
became an obsession.” Supp. App. 155. For example, the book explains that when rumors
of Tscherim’s Nazi affiliations swirled at Soobzokov’s high school, Soobzokov “felt as if
everyone’s eyes were on him . . . , [the] ‘son of the Nazi.’” Supp. App. 155–56. Lichtblau
also describes how Soobzokov would “angrily” confront protestors in front of his family
home. Supp. App. 156. Finally, Lichtblau recounts Soobzokov’s “solitary trek to avenge
his father’s honor”: an episode where Soobzokov drove four hours to a book signing and
confronted an author who had accused Tscherim of war crimes. Id.
regardless, any such claim is not actionable. See Fasching v. Kallinger, 510 A.2d 694,
701 (N.J. Super. Ct. App. Div. 1986) (“Because the allegedly defamatory statements in
this case were published subsequent to [the subject's] death, the action did not accrue
during her lifetime and cannot be maintained by an administrator of her estate.”).
3
On appeal, Soobzokov now challenges certain excerpts that were not cited in his
complaint. Because we “will not consider issues raised for the first time on appeal,” those
arguments are forfeited. See Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d
Cir. 2006).
4
While Soobzokov admits that these incidents took place, he argues that the
passages make him appear “bizarre, obsessive, and mentally unstable.” Soobzokov Br.
17. But as the District Court explained, nothing therein “is injurious to [Soobzokov’s]
reputation or would subject him to ridicule, contempt or hatred.” App. 7; see also
O’Brien v. Lerman, 498 N.Y.S.2d 395, 396 (N.Y. App. 1986) (“The words ‘went crazy’ .
. . indicating plaintiff’s extremely angry reaction, cannot reasonably be understood by the
mind of the ordinary intelligent reader as imputing to plaintiff insanity or mental
instability.”). Rather, these excerpts show “an understandable pattern of behavior seen in
first-generation children of accused Nazis who believe in their fathers and their
innocence.” App. 7 (opinion of District Court, citations and alterations omitted).
Second, Lichtblau describes Soobzokov’s determination to revive the investigation
into his father’s brutal murder—which had gone unsolved for nearly 25 years.
Specifically, Lichtblau wrote that Soobzokov “pressed authorities to reopen the
investigation” and alleged that “prosecutors failed to bring charges against [the suspected
Jewish militants] because of his father’s notoriety as a Nazi.” Supp. App. 253–54.
The District Court explained that “rather than defaming [Soobzokov], this section
evidences a son’s devotion to his father and desire to obtain answers about his murder.”
App. 8. We agree. Soobzokov argues that the passage implies that he called Tscherim a
Nazi while relaying the story to Lichtblau. While such an interpretation is theoretically
possible, it is not the natural interpretation of the passage—particularly considering the
book’s repeated references to Soobzokov’s firm belief in his father’s innocence. See
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Decker, 561 A.2d at 1125 (explaining that the “allegedly defamatory statement must be
taken in context and the publication considered as a whole”).
Third, Soobzokov is listed in the “Acknowledgments” section of the book. Supp.
App. 258. Lichtblau writes that he is “grateful” to Soobzokov and two other children of
accused Nazis “for their cooperation.” Id.
Soobzokov argues that any implication that he assisted Lichtblau’s book “lends
Soobzokov to be considered as a traitor to his father before the entire world.” Soobzokov
Br. 51. But we agree with the District Court that Lichtblau’s brief and benign
acknowledgement cannot fairly be read to carry such an extreme reading. And because
Soobzokov was interviewed by Lichtblau for an entire week and provided volumes of
documents, App. 151, the District Court did not err when it concluded that “[Soobzokov]
did cooperate with Lichtblau.” App. 8. Given the truth of that conclusion, the
acknowledgment cannot be defamatory. Ditzel v. Univ. of Med. & Dentistry of N.J., 962
F. Supp. 595, 605 (D.N.J. 1997) (“[T]ruth is an absolute defense to defamation.”).
B
We next consider Soobzokov’s claim that the aforementioned references, in
combination with Lichtblau’s description of Tscherim as a Nazi war criminal, are
defamatory. 4 Though Houghton Mifflin and Lichtblau portray this argument as an “effort
4
See, e.g., Soobzokov Br. 3 (“The defendants wrote a book where they called the
plaintiff . . . the son of a Nazi war criminal.”); id. at 42–43 (“[P]eople will believe that
Soobzokov is the son of a Nazi war criminal. One could assume that Soobzokov had Nazi
sympathies.”).
6
to circumvent th[e] well-established rule barring surviving relatives from bringing libel
claims relating to statements about the dead,” Resp. Br. 19, we understand Soobzokov’s
distinction. It’s one thing to call a deceased person a Nazi; it’s a very different thing to
call a living person the child of a Nazi. Assuming arguendo the falsity of Lichtblau’s
book, we now consider whether falsely labeling someone the son of a Nazi states a claim
under New Jersey law.
Because the New Jersey Supreme Court has not decided whether an individual can
be defamed by being linked to an infamous relative, we must predict how it would decide
that question. See McGowan v. Univ. of Scranton, 759 F.2d 287, 291 (3d Cir. 1985).
Other states are split on the issue. Compare Van Wiginton v. Pulitzer Pub. Co., 218 F.
795, 797 (8th Cir. 1914) (“The social standing of a young woman may be affected to an
appreciable degree by the evil repute of her parents. At any rate, it cannot be said as
matter of law that she suffers no injury.”), and Merrill v. Post Pub. Co., 83 N.E. 419, 422
(Mass. 1908) (“To write of a man that he is the brother of a sister arrested for larceny
might well be thought by a jury to impair his standing in the community.” (internal
quotations omitted)), with Sarwer v. Conde Nast Publ’ns, Inc., 237 A.D.2d 191, 191
(N.Y. App. 1997) (denying a defamation claim based on an article describing plaintiff’s
abuse at the hand of her father because “New York does not recognize the tort of libel by
relation”), and Ritzmann v. Weekly World News, Inc., 614 F. Supp. 1336, 1339 (N.D.
Tex. 1985) (explaining that although plaintiff was described as the wife of a criminal, “a
7
marital relation to the alleged perpetrator does not extend a cause of action for libel to
her”).
The most relevant precedent is the New Jersey Supreme Court’s decision in
Romaine v. Kallinger, 537 A.2d 284 (N.J. 1988), where the court rejected an analogous
theory of defamation by association. At issue was a book passage that loosely linked the
two plaintiffs with “a junkie they both knew who was doing time in prison.” Id. at 288–
89. The court explained that “only the most contorted reading of the offending language
could lead to the conclusion that it accuses plaintiff of illegal drug use or criminal
associations” and that “absent exceptional circumstances, the mere allegation that
plaintiff knows a criminal is not defamatory as a matter of law.” Id. at 292. Moreover, the
context of the statement showed that plaintiffs’ “interest in the ‘junkie’ stemmed from
sympathy and compassion, not from any predilection toward or involvement in criminal
drug activity.” Id. at 292–93. In reaching its decision, the New Jersey Supreme Court
cited approvingly to a federal case applying New York law and holding that the “mere
imputation of [a] family relationship with [a] Mafia leader” was not defamatory, but the
“characterization of plaintiff as a political contributor with alleged mob ties” could be
defamatory. Id. at 292 (citing Bufalino v. Associated Press, 692 F.2d 266 (2d Cir. 1982),
cert. denied, 462 U.S. 1111 (1983)).
Given the reasoning in Romaine, we predict that the New Jersey Supreme Court
would reject Soobzokov’s claim. New Jersey requires that the offending statement do
more than merely associate the plaintiff with a disreputable individual; it must indicate
8
that the plaintiff participated in disreputable behavior. See Romaine, 537 A.2d at 292
(rejecting the defamation claim because the offending passage did “not suggest either
direct or indirect involvement” by the plaintiffs in the illegal behavior). Here, Lichtblau
does not insinuate that Soobzokov was involved in Nazi activities. And like the plaintiffs
in Romaine, Soobzokov’s devotion to his father “stemmed from sympathy and
compassion” and not from “predilections toward or involvement in” Nazi causes. See id.
at 292–93. Finally, the Romaine court’s citation to Bufalino—that “mere imputation of
family relationship” without more cannot be defamatory—supports our decision. See id.
at 292.
C
Even if The Nazis Next Door were defamatory under New Jersey law,
Soobzokov’s claim would still fail because the book dealt with a matter of public concern
and the complaint does not allege actual malice. See, e.g., Durando v. Nutley Sun, 37
A.3d 449, 457 (N.J. 2012). Tacitly admitting that he failed to plead actual malice,
Soobzokov argues that his claims do not implicate a matter of public concern. We
disagree.
“Speech deals with matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to the community, or when it is
a subject of legitimate news interest; that is, a subject of general interest and of value and
concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations omitted).
“Discourse on political subjects and critiques of the government will always fall within
9
the category of protected speech that implicates the actual-malice standard.” Senna v.
Florimont, 958 A.2d 427, 444 (N.J. 2008).
The Nazis Next Door implicates matters of public concern. The book—which
uncovers controversial matters of international relations and geopolitics following a
world war—clearly relates to a “political subject.” See Florimont, 958 A.2d at 444.
Moreover, Lichtblau offers a structural and moral “critique[] of the government.” See id.;
see also, e.g., Supp. App. 27 (explaining that Nazis received “help from the American
government coming in the form of an inept immigration system that made it easy for
them to bury their pasts”); id. at 26 (“The fact that a number of [Nazi immigrants] had
built rockets on the backs of slave laborers at concentration camps, or performed hideous
medical experiments on concentration camp prisoners, was of little concern [to the
United States government].”).
Moreover, Soobzokov cannot separate his individual story from this broader
narrative. Almost any historical account will include details of individuals. If each person
could object to the inclusion of his own story, then important speech could be stifled.
Such a rule would “threat[en] the free and robust debate of public issues” and “interfere[]
with a meaningful dialogue of ideas.” Snyder, 562 U.S. at 452 (quotations omitted). For
that reason, the Supreme Court has recognized that even if the speech “contain[s]
messages related to [a named private citizen] specifically, that would not change the fact
that the overall thrust and dominant theme of [the speech] spoke to broader public
issues.” Snyder, 562 U.S. at 454.
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III
Our decision regarding Soobzokov’s defamation claim dooms his causes of action
for false light and intentional infliction of emotional distress. See G.D. v. Kenny, 15 A.3d
300, 318-19 (N.J. 2011) (explaining that a plaintiff cannot claim false light or intentional
infliction of emotional distress based on speech that is not defamatory). This is doubly
true when the offending speech addresses a matter of public concern, as New Jersey
extends the same constitutional protection to false light and emotional distress claims as
it does to defamation claims. Durando, 37 A.3d at 458 (“[A] false-light claim parallels
the requirements of the actual-malice standard in First Amendment jurisprudence and our
own common law.”); Decker, 561 A.2d at 1129 (“[T]he [F]irst [A]mendment requires
that plaintiff establish at least the same level of intent to recover for the infliction of
emotional harm as is necessary to find defamation.”).
Because we have already found that the cited passages do not constitute
defamation and deserve constitutional protection, Soobzokov’s false light and emotional
distress claims also fail.
* * *
For the reasons stated, we will affirm the District Court’s judgment.
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