Protestor, accused of conspiracy, could sue for defamation

An individual accused of being part of a deep state conspiracy to orchestrate violence in Charlottesville after he posted a video recording showing someone driving a vehicle into a crowd of protesters had a valid defamation claim against defendants who authored and published those accusations for defamation, but he did not suffer sufficient harm to support a claim for intentional infliction of emotional distress.

Background

On Aug. 12, 2017, plaintiff Brennan Gilmore joined hundreds of other individuals to protest various white supremacist and neo-Nazi groups participating in the “Unite the Right” rally in Charlottesville. That afternoon, he captured a video recording of the incident in which James Alex Fields Jr. drove his vehicle into a crowd of pedestrians, killing Heather Heyer and injuring 36 others. Gilmore posted the video to his twitter account to rebut a burgeoning narrative that suggested the incident was unintentional and convince people to stay away from the area to protect their personal safety. Gilmore’s video quickly went viral and he provided his eyewitness account of the events to multiple new outlets.

In the days that followed, defendants Scott Creighton, James Hoft, Lee Stranahan, Lee Ann McAdoo, Alex Jones, InfoWars LLC, Free Speech Systems LLC, Allen B. West, Derrick Wilburn, Michele Hickford and Words-N-Ideas LLC published various articles and videos that falsely portrayed Gilmore as a deep state operative who conspired to orchestrate violence in Charlottesville for political purposes. Following the publication of these articles and videos, Gilmore faced multiple hacking attempts and a barrage of harassing and threatening messages. In addition, his parents’ address was posted online, and an unknown chemical substance was sent to their home.

Gilmore filed a complaint against defendants for defamation and intentional infliction of emotional distress. Defendants now move to dismiss the complaint on various grounds including lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state claims upon which relief can be granted.

Analysis

Gilmore invokes this court’s subject matter jurisdiction under 28 U.S.C. § 1332(a), which requires complete diversity between the parties and an amount in controversy exceeding $75,000. As Gilmore is a citizen of Virginia, complete diversity of the parties is lacking if any other defendant was a citizen of Virginia when the action was filed.

While defendant Stranahan claims he is a citizen of Virginia because he rents an apartment there, residency alone is not sufficient to establish citizenship. In addition, Stranahan’s self-serving statement that he intends to remain in Virginia for the foreseeable future is entitled to little weight in light of the contradictory facts presented.

The most compelling evidence of Stranahan’s domicile is his place of voter registration and records from the Secretary of State of Texas show that Stranahan remained actively registered to vote in Texas following a change/audit date of Dec. 5, 2017. This evidence is particularly compelling because if Stranahan was not capable of receiving mail at a Texas address in December 2017, he would have been removed from the active list and placed on the suspense list at that time.

As such, Gilmore has established that Stranahan was domiciled in Texas at the time the action was filed by a preponderance of evidence. As no other defendant alleges Virginia citizenship, the requirement of complete diversity is satisfied. Gilmore has also satisfied the amount in controversy requirement by assessing damages exceeding $75,000 against each defendant for defamation and, separately, for intentional infliction of emotional distress. Defendants fail to shoulder the heavy burden of establishing the legal impossibility of Gilmore’s claimed recovery.

This court also has specific personal jurisdiction against all defendants except West. While the websites publishing the videos and articles are not Virginia-specific, the subject publications are exclusively focused on a Virginia event and a Virginia citizen, making the publications of particular interest to a Virginia audience. Under these circumstances, the defendants should have reasonably anticipated having to defend their statements in the courts of Virginia. Moreover, the harm suffered by Gilmore as a result of the publications occurred in Virginia.

As the focal point of the publications, and the harm suffered as a result, both occurred in Virginia, the exercise of personal jurisdiction in Virginia is reasonable. Importantly, for all defendants besides West, Gilmore has sufficiently demonstrated that they played a specific role in creating, developing, editing or publishing the specific, Virginia-targeted content at issue.

With respect to West, however, Gilmore has failed to allege sufficient facts connecting West to any role in authoring or publishing the subject article on his website. West’s mere ownership of the website on which the content was published is insufficient to provide a basis for exercising specific personal jurisdiction, as the website itself is not targeted to a Virginia-specific audience. As the basis for exercising specific personal jurisdiction arises from the fact that the content of the publications can be said to have targeted a Virginia audience, Gilmore is required to demonstrate that West played a role in authoring, editing, developing or publishing that specific content in order for his court to have specific personal jurisdiction over him. Gilmore has failed to do so.

The events that took place in Charlottesville, and the meaning to be given to those events, plainly constituted a public controversy. Gilmore’s interviews with prominent news outlets and other writings qualify him as a limited public figure with respect to this controversy. As such, to state a claim for defamation Gilmore must demonstrate that defendants published false and defamatory statements with actual malice. Gilmore has satisfied this burden.

The subject publications contained factual allegations that were clearly capable of being proven false, including Creighton’s claim that Gilmore had foreknowledge of the attack and claims by Hoft, McAdoo, Stranahan, Jones and Wilburn that Gilmore was working on behalf of George Soros, the State Department, the CIA or the government to stage or orchestrate the violence in Charlottesville. These statements are precisely the type of factual assertions that would tend to harm the reputation of another. In addition, the evidence that the defendants were attempting to promote a preconceived narrative and failed to reach out to Gilmore for comment before publication is sufficient, at this stage of the proceedings, to support an inference that they were acting with actual malice.

Defendants’ false portrayal of Gilmore as part of a deep state conspiracy to orchestrate the violence in Charlottesville is sufficient to demonstrate that defendants engaged in outrageous and intolerable conduct. Gilmore has also sufficiently alleged that this conduct was the proximate cause of the emotional distress he suffered. However, the emotional distress alleged is not sufficiently severe to support a claim for intentional infliction of emotional distress as it did not render him functionally incapable of carrying out any of his work or social responsibilities.

Motions granted in part and denied in part.

Gilmore v. Jones, Case No. 3:18-cv-17, March 29, 2019. WDVA at Charlottesville (Moon). VLW 019-3-166. 68 pp.