From Bostic v. Daily Dot, LLC, decided Wednesday by Judge Robert Pitman (W.D. Tex.):
This case revolves around an article … published on February 23, 2021, by the Daily Dot—a wholly owned subsidiary of Clarion Media—which stated that Plaintiff Daniel Bostic … was a “Jan. 6 Capitol riot organizer.” Bostic claims that he “was not connected in any way with the January 6 riots, much less that he was an organizer or coordinator of riots and insurrection.” According to his complaint, Defendants knew or disregarded that Bostic was not connected with the January 6 riot and falsely attempted to portray him as an organizer by using a photo of him at an event from a different rally in November 2020.
Bostic has a background in politics but maintains that he has never been substantially involved in any attempts to overturn the 2020 election. He first interned for and later worked as a staff assistant for Congressman Tim Scott, and in 2018, volunteered with the organization “Stop the Steal,” which protested ongoing recounts in Broward County, Florida. After 2018, he maintained contact with the organizers of Stop the Steal but began to focus on promoting his filmmaking. He attended political rallies in 2020, including some following the November election results, but alleges that he did not play any part in organizing the Stop the Steal rallies planned for January 5 or 6, 2021. While Bostic does not firmly deny that Stop the Steal helped to organize parts of the January 6 protest, he says that the organization did not plan the march on the Capitol or rally at then-President Trump’s speech.
While Bostic acknowledges that he was at a protest in Washington D.C. on January 6, he maintains that he only attended a peaceful portion of the protest. Bostic walked from the White House Ellipse to the media area of the Capitol Lawn and live-streamed a portion of the walk on Twitter via Periscope with “Stop the Steal” chants in the background. He captioned one of the videos “Storming the Capitol#StopTheSteal” but argues that he was so far away from the Capitol building that it should have been obvious that he was not actually storming anything. When he reached the Capitol, Bostic saw the violent scene unfolding, deleted his Periscope stream, and left the protest. According to Bostic, that was the extent of his participation in the events of January 6.
On January 19, 2021, Salon published an article stating that Bostic could be seen on video climbing the steps of the Capitol building. On February 23, 2021, the Daily Dot—an online news organization based out of Austin, Texas—published a short article stating that Bostic would be attending an upcoming Conservative Political Action Conference (“CPAC”). The Article was written by [Zachary] Petrizzo, who Bostic describes as an investigative reporter who has published for the Daily Dot, Mediaite, Salon, and the Daily Beast….
Bostic sued for libel, and the court allowed the case to go forward as to one of Bostic’s claim. First, the court held that Bostic was a limited-purpose public figure, because he had voluntarily injected himself into debate about the legitimacy of the 2018 and 2020 elections. But the court concluded that Bostic had adequately “pled that the descriptions of him as a Jan. 6 Capitol riot organizer and coordinator of the insurrection were defamatory with the requisite level of falsity”:
The Daily Dot Defendants argue that Bostic did in fact help to organize the events of January 6. They point out that Stop the Steal’s website directed visitors to a funding page for January 6 protestors and promoted a January 6 “Petition Congress” event. In their request for judicial notice, they point to more sites and Tweets that associate Bostic with Stop the Steal. Even assuming these sites were judicially noticeable, they would not warrant a dismissal. Indeed, the Daily Dot Defendants point out that Stop the Steal’s website “[identified] Bostic as a Georgia organizer” but did not suggest a direct affiliation with organizing national or D.C. protests. Nor do Bostic’s tweets, which encourage his followers to come to D.C. on January 6, show that he “organized” the protest. Tweets encouraging attendance at an event are not necessarily the same as “organizing” an event, and it would be premature to draw such an inference against Bostic.
There are reasons to doubt Bostic’s characterization of the events. If Stop the Steal did help organize the portion of the January 6 protest that turned into the storming of the Capitol, that might show that the Article was not defamatory. But neither Bostic’s complaint nor the Daily Dot Defendants’ motion explicitly describes Stop the Steal’s role in the January 6 protests in detail. Bostic alleges that “Stop the Steal [did not] organize[ ] President Trump’s rally or the subsequent march to the Capitol lawn” but he stops short of disclaiming any organizational involvement. Elsewhere, he alleges that he “did not help Stop the Steal organize any events scheduled for January 5, 2021 or January 6, 2021 in Washington, D.C.” But Bostic never describes what events Stop the Steal did plan for January 6. If Stop the Steal did organize events that led to the January 6 insurrection, and Bostic was listed as the media contact for Stop the Steal, such evidence will likely be relevant for summary judgment. However, as such information is not before the Court on the pleadings, dismissal is premature.
Further, the Daily Dot Defendants argue that their description of Bostic as an organizer and coordinator of the January 6 cannot be actionable in defamation because they are not provably false assertions of fact…. The Daily Dot Defendants focus on the labels of the January 6 events as a “riot” or “insurrection.”
Whether this argument is correct or not, it appears to miss the thrust of Bostic’s defamation claim. Bostic alleges that he attended a peaceful portion of the January 6 protest but left once it turned violent. As Bostic states, “Even if ‘riot’ and ‘insurrection’ could be interpreted to include the peaceful events of that day—and they cannot—Defendant’s claims would still be false.” Whether Bostic organized or coordinated the January 6 insurrection does not depend on how that insurrection is classified. Accepting, for the purposes of a [motion to dismiss], that Bostic’s factual claims are true, then the allegation that he was involved with organizing the January 6 riot or insurrection is plausibly defamatory, regardless of the potential meanings of the words.
Moreover, “riot” and “insurrection” do appear capable of containing a provably false assertion of fact…. These words are not the sort of opinion or rhetorical hyperbole that courts have held lie outside the scope of defamation. Instead, it is plausible that “riot” and “insurrection” refer to provable and specific facts and events. Namely, in this context, “riot” does not just characterize the protests, but refers to the violent events on near the Capitol steps and the storming of the Capitol building. The notion that the dictionary definitions of these terms could be used to describe broader behavior does not render them unverifiable in the context of the Article.
And the court concluded that Bostic had sufficiently alleged that Petrizzo knew the statements were false or likely false (the so-called “actual malice” standard), though of course at later stages of the case Bostic would actually have to provide more concrete evidence of that:
“The actual malice inquiry focuses on the defendants’ states of mind … which may be proved by indirect or circumstantial evidence.” Bostic alleges that the evidence relied on by the Daily Dot Defendants in their Article should have alerted them to the falsity of their assertion that he organized the January 6 riot. Petrizzo’s actions after publication of the Article also suggest—at this stage—that he acted with reckless or intentional disregard. Bostic alleges that Petrizzo “contacted organizers of CPAC” and “attempted to get [Bostic] banned from the event.” He further alleges that Petrizzo “filmed [Bostic] entering a restroom.”
While this evidence may not speak to the Daily Dot Defendants’ state of mind leading up to publication, it suggests that malice is at least plausible. It is rare that a plaintiff will be able to definitively assert what a defendant knew prior to publication—and that is not the standard at a motion to dismiss. At this stage, Bostic has shown more than “scant assertions” that the Daily Dot Defendants acted with malice. Drawing inferences in favor of Bostic, both Petrizzo’s conduct and the nature of the Article’s evidence plausibly suggest that the Daily Dot Defendants knew or recklessly disregarded the fact that Bostic did not organize the January 6 riot….
Congratulations to Jason Greaves (Binnall Law Group), who represents plaintiff.