Brimelow v. N.Y. Times Co.

21-66-cv
Brimelow v. N.Y. Times Co.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of October, two thousand twenty-one.

PRESENT:
JOHN M. WALKER, JR.,
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________

Peter Brimelow,

Plaintiff-Appellant,

v. 21-66-cv

The New York Times Company,

Defendant-Appellee. ∗
_____________________________________

FOR PLAINTIFF-APPELLANT: FREDERICK C. KELLY, Goshen, NY.

FOR DEFENDANT-APPELLEE: DANA R. GREEN (David E. McCraw, on the
brief), The New York Times Company, New
York, NY.

∗
The Clerk of Court is respectfully directed to amend the caption as above.
 Appeal from an order and judgment of the United States District Court for the Southern

District of New York (Failla, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the December 16, 2020 order and January 6, 2021 judgment of the district court

are AFFIRMED.

Plaintiff-Appellant Peter Brimelow appeals from a December 16, 2020 order and January

6, 2021 judgment of the United States District Court for the Southern District of New York (Failla,

J.), granting Defendant-Appellee The New York Times Company’s (the “Times”) motion to

dismiss the Second Amended Complaint (the “Complaint”) pursuant to Federal Rule of Civil

Procedure 12(b)(6). In the Complaint, Brimelow brought state law claims alleging that the Times

had defamed him in five published articles between January 2019 and May 2020 by characterizing

him directly and indirectly (by referencing the content on the website that he operates, VDARE)

as being “animated by race hatred,” including accusations that he is an “open white nationalist”

and “anti-Semitic.” Joint App’x at 20–21, 30–31, 36, 39–40, 42–44 (Compl. ¶¶ 50, 110, 135,

153, 166, 171).

The district court dismissed these claims on the ground that the Complaint had failed to

state a claim upon which relief could be granted because, among other reasons, it did not plausibly

allege the necessary elements of a defamation claim under New York law with respect to any of

the five articles. Brimelow timely appealed. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal, which we reference only as necessary

to explain our decision to affirm.

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 * * *

Brimelow argues on appeal that the district court erred in concluding that the Complaint

failed to state a claim under New York law and therefore granting the Times’s motion to dismiss

his defamation claims. “We review de novo the grant of a motion to dismiss under Rule 12(b)(6)

. . . , accepting as true the factual allegations in the complaint and drawing all inferences in the

plaintiff’s favor.” Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). To survive a motion

to dismiss, “a complaint must contain ‘enough facts to state a claim to relief that is plausible on its

face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under New York

law, a complaint asserting defamation claims must plausibly allege five elements: “(1) a written

defamatory statement of and concerning the plaintiff, (2) publication to a third party, (3) fault, (4)

falsity of the defamatory statement, and (5) special damages or per se actionability.” Palin v. N.Y.

Times Co., 940 F.3d 804, 809 (2d Cir. 2019). When a defamation claim is brought by a public

figure, the First Amendment independently requires a showing that the defendant acted with actual

malice. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 283 (1964).

For the reasons discussed below, we conclude that the Complaint has failed to state a claim

because it does not plausibly allege that the Times acted with actual malice and thus did not

plausibly allege all the elements of a claim for defamation necessary to survive a motion to dismiss.

See Biro, 807 F.3d at 546 (“[A] public-figure plaintiff must plead plausible grounds to infer actual

malice by alleging enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence of actual malice.” (second alteration in original) (internal quotation marks omitted)); see

also Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012) (“The bottom

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line, then, is that [plaintiff] has not nudged his actual-malice claim across the line from conceivable

to plausible, so the [district court] rightly dismissed the complaint. . . . [Actual] malice is not a

matter that requires particularity in pleading—like other states of mind, it may be alleged

generally. But, to make out a plausible malice claim, a plaintiff must still lay out enough facts

from which malice might reasonably be inferred . . . .” (internal quotation marks and citations

omitted)); accord Michel v. NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016) (“[E]very

circuit that has considered the matter has applied the Iqbal/Twombly standard and held that a

defamation suit may be dismissed for failure to state a claim where the plaintiff has not pled facts

sufficient to give rise to a reasonable inference of actual malice. Joining that chorus, we hold that

the plausibility pleading standard applies to the actual malice standard in defamation proceedings.”

(citations omitted)).

As a threshold matter, we recognize that the degree of fault the Complaint must plead with

respect to the Times’s alleged defamation depends upon whether Brimelow is a public or private

figure. See generally Gertz v. Robert Welch, Inc., 418 U.S. 323, 333–35, 347 (1974); accord

Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001). The Complaint alleges that

Brimelow “has had a long and distinguished career as a writer and journalist,” having written,

among other things, the “bestselling book, Alien Nation: Common Sense About America’s

Immigration Disaster,” and he is “widely known in his capacity as both the creator and editor of

[the website] VDARE.” Joint App’x at 8, 32 (Compl. ¶¶ 6, 112, 117). Therefore, Brimelow is

a public figure. See Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000) (“Those

who have voluntarily sought and attained influence or prominence in matters of social concern are

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generally considered public figures. Whether a plaintiff is a public figure is a question of law for

the court.” (citations omitted)). Brimelow does not argue otherwise.

Because Brimelow is a public figure, the First Amendment requires that the Complaint

plausibly plead that the Times acted with “actual malice” in publishing defamatory material about

Brimelow. Id. Actual malice requires that the Complaint plausibly allege that the Times

published the defamatory statements that form the basis of Brimelow’s claims “with knowledge

that [they were] false or with reckless disregard of whether [they were] false or not.” Palin, 940

F.3d at 809 (internal quotation marks omitted). “The reckless conduct needed to show actual

malice is not measured by whether a reasonably prudent man would have published, or would have

investigated before publishing, but by whether there is sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts as to the truth of his publication[.]” Church

of Scientology Int’l v. Behar, 238 F.3d 168, 174 (2d Cir. 2001) (internal quotation marks and

citations omitted). Actual malice can be established “[t]hrough the defendant’s own actions or

statements, the dubious nature of his sources, [and] the inherent improbability of the story [among]

other circumstantial evidence.” Celle, 209 F.3d at 183 (alterations in original) (internal quotation

marks omitted). We have emphasized that the actual malice standard imposes on a plaintiff “a

heavy burden of proof, a burden that is designed to assure to the freedoms of speech and press that

breathing space essential to their fruitful exercise.” Contemp. Mission, Inc. v. N.Y. Times Co.,

842 F.2d 612, 621 (2d Cir. 1988) (internal quotation marks and citation omitted).

Brimelow’s principal argument regarding the actual malice element relies upon the

Complaint’s allegation that the Times published the alleged defamatory statements about him

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being a “white nationalist” and an “open white nationalist” (and similar statements about VDARE

being a “[w]hite [n]ationalist [w]ebsite[]”), Joint App’x at 20–21, 30–31, 36, 39–40, 43–44

(Compl. ¶¶ 50, 67, 110, 135, 151, 153, 171), despite the existence of contrary evidence—in

particular, Brimelow’s alleged “repeated and persistent denials” as to the truth of such statements,

which, according to Brimelow, show that the Times acted with knowledge that the statements were

false or with reckless disregard as to whether they were false, Joint App’x at 22–23, 26, 28–29,

34, 37–38, 41, 45–46 (Compl. ¶¶ 57(f), 59–61, 85, 100, 124(h), 126, 142(g), 144, 156(g), 158,

178(g), 180). To demonstrate Brimelow’s purported “repeated and persistent denials,” Joint

App’x at 22 (Compl. ¶ 57(f)), the Complaint heavily relies upon a “February 23, 2018 interview

with Slate’s Osita Nwanevu, [in which Brimelow] stated [that] ‘Personally, I would regard myself

as a civic nationalist,’” Joint App’x at 22–23 (Compl. ¶¶ 60–61). That statement does not

establish actual malice on the part of the Times. Brimelow does not show that the Times was or

should have been aware of that statement and purposefully avoided it.

In any event, to the extent that Brimelow relies on this alleged denial during the 2018

interview or similar denials contained in his letters to the Times during the period when these five

articles about him and the VDARE website were being published, it is well settled that denials

without more do not support a plausible claim of actual malice. See Edwards v. Nat’l Audubon

Soc’y, Inc., 556 F.2d 113, 121 (2d Cir. 1977) (asserting that the actual malice “standard . . . cannot

be predicated on mere denials, however vehement; such denials are so commonplace in the world

of polemical charge and countercharge that, in themselves, they hardly alert the conscientious

reporter to the likelihood of error”); see also Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d

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Cir. 2006) (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions

will not suffice to [defeat] a motion to dismiss.” (second alteration in original) (internal quotation

marks omitted)). Nor are we persuaded by Brimelow’s attempts to find additional support in the

Complaint’s references to the Times’s alleged departure from “accepted newsgathering standards”

and its “own commitment to fairness and impartiality,” Joint App’x at 22, 34, 37, 41, 45 (Compl.

¶¶ 58, 125, 143, 157, 179), in reporting on Brimelow. These allegations, even when considered

collectively, sound in no more than journalistic negligence and thus fail to plausibly allege the

requisite higher degree of fault—actual malice. See St. Amant v. Thompson, 390 U.S. 727, 733

(1968) (“Failure to investigate does not in itself establish bad faith.” (citing Sullivan, 376 U.S. at

287–88)); see also Contemp. Mission, Inc., 842 F.2d at 621 (“[A] finding of actual malice cannot

be predicated merely on a charge that a reasonable publisher would have further investigated

before publishing . . . . Rather, a public figure defamation plaintiff must show either that the

publisher actually entertained serious doubts about the veracity of the publication, or that there are

obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” (alterations

in original) (internal quotation marks omitted)).

Finally, Brimelow contends that the Complaint sufficiently alleges actual malice by relying

on Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), which he maintains

clearly held that “ill will combined with an extreme departure from journalistic standards is

sufficient to satisfy the [actual] malice standard.” Reply Br. at 13; see, e.g., Joint App’x at 22–24

(Compl. ¶¶ 58, 68). Brimelow misreads Harte-Hanks. To be sure, the Supreme Court in Harte-

Hanks did acknowledge that “[a] newspaper’s departure from accepted standards and the evidence

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of motive” could be used as circumstantial evidence to support “[a] court’s ultimate conclusion

that the [newspaper] demonstrated a reckless disregard as to the truth or falsity of [alleged

defamatory statements].” 491 U.S. at 667–68 (internal quotation marks omitted). However, the

Court emphasized, in reviewing a judgment entered on a jury verdict in plaintiff’s favor, that the

“[newspaper defendant was] plainly correct in recognizing that a public figure plaintiff must prove

more than an extreme departure from professional standards and that a newspaper’s motive in

publishing a story. . . cannot provide a sufficient basis for finding actual malice.” Id. at 665

(emphasis added). Thus, the Court cautioned that “courts must be careful not to place too much

reliance on such factors.” Id. at 668. Indeed, actual malice was found in Harte-Hanks because

the evidence of the newspaper’s departure from accepted standards and ill will toward the plaintiff

was supported by a host of other evidence that demonstrated that the defendant was “purposeful[ly]

avoid[ing] . . . the truth,” including, as particularly relevant here, evidence that the plaintiff (and

several other witnesses) had “unambiguously denied” the alleged defamatory statements. Id. at

691–92.

Thus, the facts in Harte-Hanks stand in contrast to the allegations asserted in this case

relating to the element of actual malice. Although referencing the alleged ill will toward

Brimelow harbored by the Times, the Complaint provides no basis for plausibly inferring that the

Times had any doubts about the truth of its statements regarding Brimelow or the VDARE website.

See Behar, 238 F.3d at 174 (“Despite its name, the actual malice standard does not measure malice

in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of

the publication.”). In short, we find no combination of allegations from which one could plausibly

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infer that the Times was purposely avoiding the truth in its reporting on either Brimelow or the

VDARE website.

Accordingly, we conclude that the Complaint failed to plausibly allege that the Times

published its statements about Brimelow or the VDARE website with reckless disregard as to

whether they were true or false. Because the Complaint failed to sufficiently allege the actual

malice element of a claim for defamation under New York law, the district court properly granted

the Times’s motion to dismiss for failure to state a defamation claim upon which relief could be

granted. 1

* * *

We have considered Brimelow’s remaining arguments and find in them no basis for

reversal. Accordingly, we AFFIRM the order and judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

1
Brimelow also challenges the district court’s other grounds for dismissing his defamation
claims, including its conclusions that: (1) all but one of the statements in the articles about Brimelow and
the VDARE website were non-actionable opinions as a matter of law; (2) the statements about the VDARE
website and others were not “of and concerning” Brimelow; and (3) one of the articles in the Times about
the VDARE website was subject to the wire service defense because it was a verbatim republication of a
Reuters article. However, because we affirm the district court’s dismissal of the Complaint on the ground
that the Complaint has failed to plausibly allege the requisite element of actual malice, we need not and do
not reach these other issues.

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