Cheung v. Neumann: Defamation Suit by Epoch Group Against Media Group Dismissed

Now that we’re several months into it—indictments have been issued, defendants have been tried and/or pleaded guilty, and appeals taken– we’re beginning to see circuit courts of appeal begin to address what will certainly be an avalanche of legal issues emanating from the January 6, 2021 events at the Capitol.  It will be interesting to follow these opinions as they’re decided and assess how our courts will now, in this moment of our country’s history, interpret certain fundamental rights that have long been recognized in our historical legal canon.  I’m personally particularly interested in some of the First Amendment issues, so this case caught my attention.

The First Circuit Court of Appeals issued this decision in Cheung v. Neumann, 51 F.4th 438 (2022). Dana Cheng and Epoch Group sued Maine People’s Alliance and Dan Neumann for defamation, false light invasion of privacy, and intentional and negligent infliction of emotional distress. The suit stems from an article written by Neumann and published by Maine People’s Alliance that covered a presentation given by Cheng. The article referenced Cheng’s presence at the US Capitol on January 6, 2021, and her claims that the violence that day was perpetrated by anti-fascist infiltrators. The article also mentioned that Cheng’s newspaper, Epoch Times, has promoted anti-vaccine misinformation and QAnon conspiracy theories. The district court dismissed the suit on First Amendment grounds, and Cheng and Epoch Group appealed to the First Circuit Court of Appeals.

The Court of Appeals affirmed the dismissal, holding:

• The article’s statements were factually true or substantially true.
• References to Cheng as “right-wing,” “far-right,” and “conspiracy theorist” were protected by the First Amendment, and
• The statement that Epoch Times “has promoted anti-vaccine misinformation and QAnon” was an opinion protected by the First Amendment.

The Court of Appeals further held that the plaintiffs could not recycle their failed defamation claim as a tort claim for emotional distress.

The Court focused on two First Amendment principles: (1) that statements published by media defendants involving matters of public concern cannot be liable unless they are false, and (2) statements of opinion relating to matters of public concern are protected by the First Amendment.  “As to the other First Amendment principle, “a statement of opinion relating to matters of concern which does not contain a provably false factual connotation… receive[s] full constitutional protection,” as does “imaginative expression” and “rhetorical hyperbole.”  Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (citing Phila. Newspapers, Inc. v.  Hepps, 475 U.S. 767 (1986); Hustler Mag. Inc. v. Falwell, 485 U.S. 46, 53-55 (1988). The Court found the Article was published by Maine People’s Alliance concerned matters of public concern. The Court further concluded the plaintiffs failed to plausibly allege defamation, both as to the Article as a whole and as to each of the individual challenged statements. The Court further rejected the Cheng’s argument that the Article conveyed a defamatory inference that she participated in the violence on January 6. The Court held the plaintiffs’ claims of falsity were plainly refuted by the materials that were offered as exhibits to the complaint. The Court held the Article’s headline was factually true, and that the phrase “present at Jan. 6 Capitol assault” did not falsely place Cheng in the middle of the violent breach. The Court also found the third statement in the Article was also substantially true, as Cheng’s statements during the interview strongly suggested that individuals associated with antifa were involved in the violence. The remaining statements were not actionable because they were expressions of opinion and were unprovable as false. Further, the Court dismissed plaintiffs’ claims for false light invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

As far as I can tell (and I think I’m pretty good at finding cases), this is the first First Amendment case with some connection to the events of that day. I have no doubt more will be forthcoming.