Lewis v. Abramson

673 F.Supp.3d 72

2023 DNH 046

Robert Patrick LEWIS et al. v. Seth ABRAMSON

Case No. 22-cv-126-PB

United States District Court, D. New Hampshire

Signed May 9, 2023

Steven S. Biss, Law Office of Steven S. Biss, Charlottesville, VA, Morgan Tanafon, Bryan K. Gould, Cleveland Waters & Bass PA, Concord, NH, for Robert Patrick Lewis et al.

Christian Hinrichsen, Stephanie Bendeck, Melick & Porter LLP, Boston, MA, Timothy John McLaughlin, William E. Christie, Shaheen & Gordon, Concord, NH, for Seth Abramson.

MEMORANDUM AND ORDER

Paul J. Barbadoro, United States District Judge

Seth Abramson, an attorney and journalist, published a series of articles and tweets alleging that the 1st Amendment Praetorians ("1AP"), its founder, Robert Patrick Lewis, and one of its members, Philip Luelsdorff, were militant extremists involved in the January 6, 2021, attack on the Capitol. Lewis, Luelsdorff, and 1AP brought a defamation, conspiracy, and false light invasion of privacy action against Abramson, challenging 41 statements published by Abramson or his alleged co-conspirators. Abramson now moves to dismiss the complaint in its entirety for failure to state a claim. For the reasons that follow, I grant Abramson's motion in part and deny it in part.

I. BACKGROUND

A. January 6 Attack on the Capitol

Because the events of January 6, 2021, form the backdrop of this case, I recount them briefly here as necessary to provide relevant context for the plaintiffs' claims.

Following the 2020 election of Joseph Biden to President of the United States, then-President Trump "refused to concede, claiming that the election was 'rigged' and characterized by 'tremendous voter fraud and irregularities.' " Trump v. Thompson, 20 F.4th 10, 17 (D.C. Cir. 2021) (cleaned up). President Trump retained attorneys Rudy Giuliani and John Eastman to investigate allegations of voter fraud and develop legal strategies to challenge the results of the election. See U.S. Dominion, Inc. v. Fox News Network, LLC, Nos. N21C-03-257 EMD, N21C-11-082 EMD, 2023 WL 2730567, at *5 & n.83 (Del. Super. Ct. Mar. 31, 2023); Eastman v. Thompson, No. 8:22-cv-00099-DOC-DFM, 2022 WL 1407965, at *1-2 (C.D. Cal. Jan. 25, 2022). Leading up to the certification of the election results, Eastman, Giuliani, and other supporters of President Trump convened in a so-called "war room" at the Willard Hotel (the Willard room) to explore legal strategies for "delaying or blocking the certification of the election." See Eastman, 2022 WL 1407965 at *2. Cf. Doc. 16 at 20.

On January 6, 2021, Congress began proceedings to certify the results of the election. See Thompson, 20 F.4th at 17. That same day, President Trump held a rally for his supporters on the Ellipse, where he reiterated his claims of a "stolen" election and urged then-Vice President Pence to reject certain States' electors. See id. at 18. Following the speech at the Ellipse, "a large crowd of President Trump's supporters—including some armed with weapons and wearing full tactical gear—marched to the Capitol and violently broke into the building to try and prevent Congress's certification of the election results." Id. Law enforcement was unable to contain the crowd, who "scaled walls, smashed through barricades, and shattered windows to gain access to the interior of the Capitol." Id.

B. The Plaintiffs

1AP is an organization that "provide[s] pro bono security and protective services at grassroots events." Doc. 16 at 1. The organization was founded by plaintiff Lewis and includes a number of volunteer members, including Luelsdorff.¹ Id. at 1-2; see also Doc. 20-2 at 4.

Lewis, Luelsdorff, and 1AP were in Washington, D.C., in the days leading up to the certification of the 2020 election results. Doc. 16 at 20, 24. On January 5, 1AP volunteers provided security for an event. Id. at 24. Then, on January 6, 1AP volunteers provided "personal security" for unidentified members of the press. Id. Lewis did not provide security services on January 6, but rather attended President Trump's speech at the Ellipse, then spent the remainder of the day at the Willard Hotel. Id. Luelsdorff was also at the Willard Hotel for some period of time on January 6, although it is unclear whether he was there in a purely personal capacity or to provide security services through 1AP. See id. at 20. While at the Willard Hotel, Luelsdorff momentarily entered the Willard room, where he was photographed standing near Eastman, Giuliani, and other individuals associated with President Trump. Id. at 20, 30.

C. Abramson's Reporting

Abramson is an attorney and journalist who publishes a substack² entitled "Proof." Id. at 18. Abramson's substack focuses largely on the Trump presidency and, in particular, the events of January 6. See generally Doc. 20-3 through 20-7.

On June 21, 2021, Abramson posted a substack that discussed the Willard room, its suspected "participants," and its alleged role in the events of January 6. Doc. 20-3 at 6-10. The substack included the picture of Luelsdorff standing in the Willard room near Eastman and Giuliani. Id. at 9. When the substack was first posted, Abramson did not know that the man in the picture was Luelsdorff and referred to him only as "WhiteTee," a "Known But Unidentified Participant[ ]" in the Willard room. Id. at 7, 9.

Abramson later posted an "update" to his June 21 substack that identified the man in the picture as Luelsdorff. Id. at 9. He stated that Luelsdorff was "the Director of Business Development for the militant extremist 1st Amendment Praetorian group run by Robert Patrick Lewis." Id. The update linked to another of Abramson's substacks, published on June 30, 2021, entitled "Far-Right Militants Were in Trump's Insurrection Week Command Center." Doc. 20-5 at 2.

The June 30 substack discussed 1AP, Lewis, and Luelsdorff at length. Id. at 2-10. The centerpiece of the substack was an interview with Lewis on a podcast called Patriot Transition Voice, which Abramson linked to in the article. Id. at 3-7. In that interview, recorded the day after the attack on the Capitol, Lewis stated that he had spent the past week with "very well known, very high profile people on the conservative side" and "a lot of very well-known constitutional scholars." Doc. 20-10 at 39, 84; see also Doc. 20-5 at 4. Lewis also expressed his belief that the attack on the Capitol was the work of Antifa; that the election was fraudulent and that China, Pakistan, Venezuela, Russia, and Iran were involved in perpetrating the fraud; and that "culture Marxists" will "ensure they never lose power again unless we have a full blown revolution." Doc. 20-10 at 30, 38, 46, 49.

Quoting from the interview extensively, Abramson asserted that Lewis harbored "extremely dangerous, even seditious views" and labeled 1AP as "radical militant extremists." Doc. 20-5 at 3, 10. After analyzing several of Lewis's statements in the interview, Abramson concluded that the interview indicated that Lewis was inside the Willard room. Id. at 4-7. Abramson asserted that this, in conjunction with the aforementioned photograph of Luelsdorff in the Willard room, proved that 1AP was involved in the Willard room, which Abramson described as "Team Trump's Insurrection Week command center." Id. at 5, 7-8.

A few weeks later, on July 12, Abramson posted another substack discussing Lewis and 1AP at length. Doc. 20-6 at 2, 8-11. The July 12 substack was a compilation of "January 6 data" that Abramson viewed as important but had not yet written about. Id. at 2. One portion of the substack linked to and discussed an interview with Lewis on a podcast called After Dark with Rob and Andrew. Id. at 8. In that interview, Lewis stated that he had "met with Professor Eastman several times" and "got to hear him talk about . . . ways that we could do things and ways that we could rectify the [election fraud]." Doc. 20-11 at 13. Lewis also stated that he "had a protected detail on General Flynn and Sidney Powell and Patrick Byrne in D.C. from about mid-November through January," and that, as a result, Lewis "was around all those [election fraud] investigations in many ways throughout that time." Id. at 43. Lewis went on to question whether the videos from the attack on the Capitol may have been "staged," asserting that "[a] lot of Marxists have infiltrated [the country's] Intelligence services" and are "try[ing] to cleanse the United States of people who don't align with them politically." Id. at 24, 31, 34-35.

In analyzing the interview, Abramson emphasized that the interview further confirmed that Lewis and 1AP were involved in the Willard room, and classified some of Lewis's statements on the podcast as "conspiracy theor[ies]." Doc. 20-6 at 9-10. Abramson went on to state: "I believe that a federal judge would—and may yet—order a psychiatric evaluation for [Lewis], who acted as a high-level advisor to Trump's legal team pre-, mid-, and post-insurrection." Id. at 10.

Abramson referenced the plaintiffs, albeit in passing, in at least two other substacks focused on the events of January 6. In one substack, posted on June 28, Abramson stated that 1AP "act[ed] as security for top agents of Team Trump." Doc. 20-4 at 3. In another substack, posted on September 23, Abramson stated that both Luelsdorff and Lewis were inside the Willard room, and that "Lewis had been running a private intelligence operation for Team Trump to try to establish that the 2020 election was stolen by a multinational cabal of pro-communist interests," which Abramson described as a "preposterous" "conspiracy theory." Doc. 20-7 at 4.

Abramson, a relatively prolific Twitter user with a large base of followers, also referenced the plaintiffs in a number of his tweets. See Doc. 16 at 22. The tweets largely focused on the plaintiffs' alleged role in the Willard room and classified the plaintiffs as, among other things, "domestic extremist[s]," "far-right . . . militants," "insurrectionist[s]," "deranged," and "a legitimate danger to national security." S...