Lawsuit Against New York AG Letitia James over Letter Alleging Group's Event Was Connected to "White Nationalist Ideals" …

From Magistrate Judge Kenneth Schroeder’s Report and Recommendation Sept. 22 in Doyle v. James, affirmed Wednesday by Judge John Sinatra (W.D.N.Y.), plaintiff’s allegations:

Plaintiff Paul Doyle (“Doyle”) is the Senior Pastor at Cornerstone Church in Batavia, New York. Cornerstone is a small, rural church with a history of service and community outreach. Cornerstone has worked to build relationships with communities of color and was aggressive in their assistance to victims of the mass shooting in Buffalo.

Plaintiff Clay Clark (“Clark”) is the owner and operator of The Thrive Time Show, a highly successful business podcast. Clark has twice been named the US Small Business Association Entrepreneur of the Year and is the recipient of other business awards.

“ReAwaken America” is a conservative political movement that hosts events throughout the country. The ReAwaken America Tour (“the Tour”) was scheduled to host an event in Rochester, New York on August 12, 2022 at the Main Street Armory. However, after community members and local politicians spoke out against the event, the Armory cancelled it.

The Tour then reached out to Doyle to see if Cornerstone would be willing to host the event. Doyle met with groups from Rochester to try to understand their concerns and concluded that “the Tour was not what was being portrayed in the media and by government officials.” Doyle thus agreed to host the event at Cornerstone “due to his strong belief that free speech should not be restricted and those who attempt to exercise it should not be intimidated, particularly by government officials.” The event was scheduled for August 11-13, 2022.

On August 3, 2022, New York Attorney General Letitia James sent a letter addressed to Clark and General Michael Flynn—a co-organizer of the Tour—to Doyle’s home address “c/o Cornerstone Church.” Plaintiffs allege that the letter was “nothing less than an attempt to covertly intimidate and threaten the Plaintiffs into shutting down the event.”

James’s letter stated, in part:

As New York’s top law enforcement officer, I have significant concerns that the ReAwaken America Tour’s upcoming event at the Cornerstone Church in Batavia, New York on August 12 and 13 could spur extremist or racially motivated violence. These concerns center around the event’s proposed dates, which coincide with the five-year anniversary of the deadly Unite the Right rally in Charlottesville, Virginia, and past extremist statements made by yourselves and the other featured speakers on the tour.

I am especially concerned about featured speakers’ regular allusions to white nationalist ideals connected to the “Great Replacement Theory,” a conspiracy theory that warns of white genocide and efforts to replace native born Americans with immigrants. The theory is frequently linked to violent actions, including the racially motivated mass shooting that killed 10 people at a Tops Friendly Markets store in Buffalo. Especially in light of this racist mass shooting, and other recent episodes of racially motivated violence in New York and throughout the country, the Office of the Attorney General is concerned that such rhetoric could contribute to violent or unlawful conduct at the ReAwaken America Tour’s upcoming event….

The Office of the Attorney General writes to remind you that New York law prohibits racially motivated violence, harassment, or interference with another person in the exercise of their civil rights. New York Civil Rights Law § 79-n empowers the Office of the Attorney General to investigate acts of violence, intimidation, threats, or harassment directed at people based on a belief or perception regarding an individual’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation. In addition to actual damages, any person who violates this statute can be held liable for $5,000 in penalties for each violation.

Additionally, New York Civil Rights Law § 40-c prohibits discriminating against another person in the exercise of their civil rights—including their right to peacefully protest—based on similar protected characteristics. Finally, New York Executive Law § 63(12) empowers the Office of the Attorney General to take action against any business engaged in significant fraud or illegality—including the violation of New York’s civil rights laws.

The Office of the Attorney General has a duty to protect New Yorkers from extremist and racially motivated violence. We stand ready to investigate any violation of the laws above and, if necessary, to enforce them to the fullest extent available. You are therefore instructed to take all necessary steps to ensure that the event complies fully with the requirements of New York’s civil rights laws and all other applicable state and federal statutes.

Your cooperation in ensuring a peaceful and law-abiding event will be greatly appreciated.

Plaintiffs allege that James’s “inferences towards racial discrimination and fraud associated with the church and the event were publicized in numerous media outlets … which injured Pastor Doyle’s reputation, that of his church, and the reputation of Mr. Clark as well.” They further allege that James made no reasonable inquiry to verify her alleged concerns and that, had she done so, she would have learned “about the generous history of Cornerstone Church, the upstanding reputation of both Plaintiffs, and the fact that the Reawaken America Tour had not a single publicized act of violence at any of their events, nor has the tour been legitimately accused of any crimes, illicit behavior, or the violation of any laws or ordinances.” Plaintiffs also allege that they had “reached out to law enforcement and local government officials to ensure the safety of the event and that all local rules, laws, and ordinances would be followed.”

Plaintiffs further allege that no ReAwaken America event has ever been associated with the racial theories or violence with which James’s letter purported to connect them, and her statements were “negligent, reckless and a dereliction of her duty to exercise due diligence in her representation as Attorney General and in doing so, is an abuse of power.”

Plaintiffs allege that James’s politically motivated letter created a “smear” on their names and damaged their community relationships. The publicity surrounding James’s letter resulted in “numerous cancellations of ticket sales by patrons who originally planned to attend the event prior to hearing the derisive false reports.”

Finally, plaintiffs allege that, as a result, they were forced to hire additional security to ensure the safety of the participants and attendees. Ultimately, the event “went off without a single issue.” …

The court held that plaintiffs had adequately alleged the letter was unconstitutionally coercive:

To state a claim that the government violated the First Amendment through coercion, “a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.” …

Here, after linking plaintiffs and the event’s speakers to racist theories and past incidents of racist violence, defendant listed various state anti-discrimination laws and their penalties, concluding that her office “stand[s] ready to investigate any violation of the laws above and, if necessary, to enforce them to the fullest extent available.” Plaintiffs allege that they perceived this letter as a thinly veiled threat meant to cause them to cancel the event, accompanied by the specter of prosecution.

As this Court stated in its prior RR&O [Report, Recommendations & Order]:

Here, defendant’s letter has a heavy-handed, ominous tone and tells plaintiffs that: (1) she considers their own past statements concerning and “extremist,” (2) she believes that “such rhetoric” could lead to “violent or unlawful conduct” at the upcoming event; and (3) she “stands ready” to investigate and enforce violations of New York laws, whose penalties she enumerates.

Such statements might reasonably be understood as threats as opposed to a government official’s speech that is “nothing more than a well-reasoned and sincere entreaty in support of his own political perspective.” …

[D]efendant’s assertion that her letter can only be construed to convey a request to avoid or prevent unlawful conduct is unavailing at the pleading stage. In NRA v. Vullo (2024), the Supreme Court rejected such an argument:

For the same reasons, this Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law …is an obvious alternative explanation” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns… Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.

Given this context, the fact that defendant’s letter did not cause plaintiffs to cancel their event does not preclude a finding that defendant’s letter was an unlawful attempt to coerce them to do so. See Okwedy v. Molinari (2d Cir. 2003) (“A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights.”)…. Therefore, construing the allegations of the complaint in plaintiffs’ favor, and considering the above authorities, the Court concludes that plaintiffs have plausibly alleged that they “reasonably understood” defendant’s letter to be an attempt to suppress the exercise of their First Amendment rights. Bantam Books, Inc. v. Sullivan (1963).

The court also held that plaintiffs had adequately alleged the letter was unconstitutionally retaliatory:

“Where a private plaintiff sues public officials, the Second Circuit states the elements [of a retaliation claim] as follows: (1) Plaintiffs have a right protected by the First Amendment; (2) Defendants’ actions were motivated or substantially caused by Plaintiffs’ exercise of that right; and (3) Defendants’ actions caused Plaintiffs some injury.” … [D]efendant does not contest that plaintiffs satisfy the first element of a retaliation claim…. [And] plaintiffs’ complaint alleges facts which, construed as true, would allow a reasonable person to infer that defendant was motivated to send her letter due to the political content of plaintiffs’ speech ….

[D]efendant argues that plaintiffs fail to adequately plead that defendant’s actions caused them legally cognizable harm. The Court discussed the issue of harm in its prior RR&O in the context of standing, noting that “[v]arious non-speech related harms are sufficient to give a plaintiff standing” for purposes of a First Amendment retaliation claim. In particular, the Court reviewed authority holding that “reputational harms” may constitute such an injury. The Court observed:

Here, plaintiffs’ complaint is replete with allegations that defendant’s letter falsely associated them with racist, “white nationalist ideals;” the “Great Replacement Theory;” a racially motivated shooting in Buffalo, New York; and other “racially motivated violence.” Plaintiffs allege specific damages flowing from defendant’s statements: injury to plaintiffs’ reputations; harm to Doyle’s community relationships, and specifically with communities of color; and an increased likelihood of violence towards plaintiffs….

Thus, construing the above allegations in plaintiffs’ favor, the Court concludes that they have sufficiently alleged injury for purposes of their retaliation claim….

The magistrate judge also concluded that the law was sufficiently well-established that it recommended denying qualified immunity to the defendants. An excerpt:

[I]t has long been clearly established that “implied threats to employ coercive state power to stifle protected speech” violate the First Amendment. Hammerhead Enters., Inc. v. Brezenoff (2d Cir. 1983).

In 2003, the Court of Appeals reversed the dismissal of a complaint filed by plaintiffs against the Borough President of Staten Island who sent a letter to a billboard company with whom plaintiffs had contracted to produce and display billboards conveying plaintiffs’ beliefs that, under biblical teachings, homosexuality is a sin. Okwedy v. Molinari (2d Cir. 2003). The letter stated that defendant and many community members found the billboards offensive, noting that the company “derives substantial economic benefits” from billboards on Staten Island and asking the company to contact defendant’s legal counsel to discuss the matter. The billboard company took the signs down the same day.

The Court of Appeals held that plaintiffs had adequately pled a First Amendment claim; that a jury could find that the defendant’s letter contained “an implicit threat of retaliation;” and that a “public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights.” …

And the court held that plaintiffs had adequately alleged defamation, despite defendant’s claim of absolute privilege:

“… [A]n executive official is absolutely privileged to publish false and defamatory matter of another in the exercise of his executive function if the matter has some relation to the executive proceeding in which the official is acting.” … In determining whether absolute privilege applies, the court considers two factors: (1) the personal position or status of the speaker, and (2) the subject matter of the statement and the forum in which it is made in light of the speaker’s public duties. Under the second prong, it is not sufficient that the subject matter of defendant’s speech merely “relate to” his public duties. Rather, the speech must be made “during his performance of an essential part of his public duties.”

Under this authority, defendant is not entitled to dismissal of plaintiffs’ defamation claims based on absolute immunity. The general duties of the New York Attorney General are set forth in New York Executive Law § 63. As relevant here, they include: the prosecution and defense of all proceedings in which the state is interested; the investigation, upon the request of the governor or other state officials, of certain indictable offenses; upon the request of the commissioner of labor or the state division of human rights, the prosecution of civil actions for discrimination; the prosecution of criminal offenses; and application to state courts for orders enjoining fraudulent or illegal acts.

In her current papers, defendant also cites N.Y. Exec. Law § 79-n(3), which provides that the attorney general may apply in the name of the state to a court to enjoin unlawful bias-related violence of intimidation. She also cites a penalty provision of an equal rights law that states that notice of any action under that section must be served on the attorney general.

However, the letter to plaintiffs was not written to fulfill any of these duties because defendant had initiated no investigation, prosecution, or any other governmental process against plaintiffs. In fact, defendant does not argue that plaintiffs had engaged in any actual or suspected acts that would fall within the scope of her law-enforcement authority…. Absent some factual predicate for a government official to believe that a citizen may have engaged in conduct that warrants the scrutiny of his or her office, that official is performing no duties that the doctrine of absolute privilege is meant to protect….

Tricia Sophia Lindsay represents plaintiff.

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