Daniel Richards v. Union Leader Corporation et al.

The Court should formally recognize the tort of false light invasion of privacy. Appellees argue that doing so would chill the exercise of First Amendment rights. They are incorrect. The Second Amended Complaint in this matter rebuts any such argument by alleging that the defendants violated the Times v. Sullivan standard. Recognition of this tort is particularly appropriate in New Hampshire due to the unique nature of our state government and the culture that has grown up around it. ARGUMENT I. This Case Involves Defamation and Was Dismissed Prematurely A. The fact that Azzi’s editorial addressed a matter of public concern does not afford protection to his false and damaging statements of fact Appellees’ briefs devote significant space to extolling the importance of unfettered free speech, particularly as it pertains to matters of political and social concern. This Court should not be distracted by Appellees’ efforts to hide behind this lofty free speech language. Appellant does not dispute that Appellee Azzi’s editorial was speech on a matter of public concern. But the publication of false and damaging statements of fact is unprotected whether or not the subject is a matter of public concern. Defamation is not constitutionally protected speech, period. See Doyle v. Comm’r, N.H. Dep’t of Resources and Economic Dev., 163 N.H. 215, 220 (2012) (“Only narrow categories of speech, such as defamation, incitement and pornography produced with real children, fall outside the ambit of the right to free speech.”)

Contrary to Appellees’ insinuations, Appellant has not challenged their right to publish insulting invective about him. Appellee Azzi’s editorial includes numerous vituperative statements that Appellant agrees are well within the scope of his right to free speech. Appellant has never, for example, challenged Azzi’s right to claim that he espouses “anti-American excresence, ” that he is an “unreconstructed White apologist, ” that he is part of a “coven of mendacious White men, ” or that he is “bias[ed]” and “repugnant.” (Appendix 0012-0013). The only thing Appellant has challenged is Azzi’s right to make false and damaging statements of fact about him. B. A ruling on Appellant’s public figure status would be premature Appellees ask this Court to find that Dan Richards is a public figure for the purposes of this case. In so doing, Appellees dramatically overstate the extent of Richards’ participation in the debate over New Hampshire HB 544. But regardless of whether Richards’ involvement in the debate over HB 544 would ultimately be found sufficient to render him a limited-purpose public figure, such a determination would be premature at this stage. That is because in New Hampshire, “the determination of public official or public figure status is a jury question.” Nash v. Keene Publishing Corp., 127 N.H. 214, 222 (1985). So while Appellee Union Leader cites Nash for the proposition that Richards is a public figure, that case actually makes clear that the question is not one for the Court to resolve at this juncture. The other case that Appellee Union Leader cites in support of its public-figure argument is not actually a public figure case where the actual malice standard was invoked, but one in which the court — after finding the statements in question to be no more than unflattering opinions — noted that the plaintiff had placed himself into the arena by inviting media into his home, and could not then complain about the unflattering opinions the media expressed about him. Catalfo v. Jensen, 657 F. Supp. 463, 468-69 (D.N.H. 1987). It has no bearing on the present case. Further, even if this Court were to rule that Appellant was a public figure, it would still be premature to determine whether Appellees acted with actual malice, which occurs when “the defendant acted either with knowledge of the falsity or with a reckless disregard for truth or falsity.” Nash, 127 N.H. at 222. That is because this Court has held that the question of whether a defendant displayed a “reckless disregard” for the truth is also a question of fact that “depends on an assessment of the defendant’s credibility, ” making it difficult even to address on summary judgment, let alone on a motion to dismiss. Nash, 127 N.H. at 223. It is clear, therefore, that even if courts should dismiss defamation claims at the earliest stage possible, dismissal was not yet appropriate here because there are questions of fact that must be addressed before the case can be resolved. II. The Challenged Statements Imply Undisclosed Defamatory Facts A. The challenged allegations are defamatory 1. This Court has not decided whether allegations of racism and white supremacy are statements of fact or opinion Appellees argue that it is “well established law” that allegations of racism and white supremacy are not capable of defamatory meaning, and that the definition of white supremacy is “hotly contested.” (Brief of Appellee Union Leader p. 24; Brief of Appellee Azzi p. 38). This simply is not the case. As set forth in Appellant’s opening brief, there are numerous cases finding that accusations of racism and white supremacy are susceptible of defamatory meaning. As set forth in Appellee Union Leader’s brief, there are also numerous cases finding that they are not. All of those cases have one thing in common: they were not decided in New Hampshire. And as set forth in greater detail in Appellant’s brief, the term “white supremacist” has a widely understood meaning that can be found in any dictionary. (Opening Brief of Appellant p.11). It is not, as Appellee Union Leader argues, akin to calling someone “sleazy, ” or a “patent troll” (Brief of Appellee Union Leader p. 27) — and this Court should hold as much. 2. The challenged statements imply the existence of undisclosed facts i. The white supremacy statement As much as Appellees try to pretend that Dan Richards is suing purely over being called a white supremacist, that is not the case. This Court will note, for example, that Azzi also called Richards part of a “coven of mendacious White men” and that Richards has never challenged his right to do so. What Richards has challenged is Azzi’s highly specific allegation that he disseminated white supremacist ideology across multiple media platforms — an allegation that any reasonable reader would understand to mean that he had published multiple pieces of content espousing his belief in the superiority of the white race. Had Azzi cited or linked to any of Dan Richards’ limited public comments on critical race theory as the foundation for his allegation, perhaps readers could have judged for themselves. But he did not. It is only now, in the context of his attempt to evade liability for his false statements, that Azzi cites to materials that he claims support that allegation. (Appendix at 0039-0042). ii. The suppression of rights, suppression of franchise, and lying statements Robert Azzi’s editorial also contained not a single piece of information about Dan Richards from which a reasonable reader could conclude that he is a proven liar who supports suppressing the vote as well as the rights and grievances of people who look different from him. Rather, Azzi’s editorial links to a prior article by Newt Gingrich in which Gingrich briefly describes Richards as a father of two elementary-age students in the New Hampshire public school system who was silenced by an administrator after he questioned the school’s critical race theory curriculum at a PTO meeting. Assuming readers even followed that link — which was connected in the editorial to Gingrich’s name, not Richards’ — that is all they would know about Dan Richards. Appellees now attempt, after the fact, to write lengthy discourses on the supposed connection between opposition to critical race theory and these other evils. For example, Appellee Union Leader argues that suppression of the franchise is a “pernicious effect of systemic racism.” Opponents of critical race theory, they argue, seek to deny the existence of systemic racism. Therefore, “[t]here is a rational, reasonable relationship” between opposition to teaching critical race theory and support for suppressing the franchise. (Brief of Appellee Union Leader pp. 33-34). Appellee Azzi, meanwhile, attempts to claim that in her 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, author Michelle Alexander links “Richards’ platform” to discrimination in voting, housing, employment, etc. (Brief of Appellee Azzi pp. 23-24). But Alexander’s book has nothing whatsoever to do with the teaching of critical race theory in schools, something that was not even an issue in 2010. Alexander was not writing about “Richards’ platform” at all. Appellees ask this Court to accept that this discourse was somehow implicit in Azzi’s short editorial, and that any reasonable reader would have understood that. Perhaps if Azzi had published a long-form article explaining why he draws a connection between these two unrelated things, we would not be here today. But instead, he wrote a 797-word editorial, an unsourced hit piece that makes false and damaging allegations about a local businessman without providing readers with a single fact from which they could reasonably draw their own conclusions about those allegations. Appellee Union Leader also attempts to argue that when Azzi accused Dan Richards of seeking to suppress “the grievances and rights of Americans unlike” himself, Azzi was referring not to people of color, but rather to the “educators and administrators” who seek to teach critical race theory. (Brief of Appellee Union Leader p. 35). Since Appellant supported a bill limiting schools’ ability to teach critical race theory, Appellee claims, Azzi’s statement is clearly true. But the idea that Azzi was referring to “educators and administrators” does not pass the laugh test. Any reasonable reader would assume that the rights the “white supremacist” in question wanted to suppress were the rights of minorities, not teachers. Once again, Appellees are simply trying to plug the glaring holes in Azzi’s editorial after the fact to avoid the obvious conclusion that Azzi made false statements about Dan Richards without disclosing any of the facts on which he based those statements. Appellee Union Leader further argues — from this Court’s statement in Riley v. Harr that it is permissible to speculate about a person’s motives from the known facts of their behavior — that “what is favored or unfavored is a subjective opinion incapable of being verified.” (Brief of Appellee Union Leader p. 34, emphasis added). Their argument seems to be that if a particular individual believes — however unreasonably — that Position A and Position B are linked, then that belief alone is sufficient to publicly accuse someone of supporting Position B. But it is difficult to imagine that even the Union Leader actually believes this. Would it be permissible to state, for example, that because Robert Azzi supports the teaching of critical race theory in schools, he also favors legalizing sex between adults and children? Obviously not! But that is precisely what Appellee argues. Appellant submits that, instead, whether support for Position A can serve as the factual basis for an accusation of support for Position B depends upon whether there is some reasonable relationship between the two positions. While Appellees have, in their briefs, attempted to lay out some tortured reasoning connecting Dan Richards’ position on teaching critical race theory to children and opposition to the franchise, that is not a connection that any reasonable reader would draw without a lengthy explanation — an explanation that Robert Azzi did not provide. III. The Challenged Statements Were “Of and Concerning” Dan Richards In addition to contesting Dan Richards’ appeal, the Union Leader also appeals the lower court’s finding that the contested statements about “those who favor whitewashing history” are “of and concerning” Richards such that they could give rise to defamation liability. (Appendix 0023-0024). Appellee’s argument that these statements were about a group that is “numerous beyond measure” depends upon Appellee’s obscuring of one critical line from Azzi’s editorial — a line so important that Azzi gives it its own paragraph: Those who favor whitewashing history – favor suppressing the grievances and rights of Americans unlike themselves – favor suppressing the franchise of citizens who don’t look like them – have shown they’ll lie, go to any lengths, propose any laws, to protect their privilege and power over others. Most repugnant are those who distort, decontextualize, and misrepresent truth-tellers like MLK and Kendi when they talk about race and oppression. Today, we know who they are. It is clear as day that when Azzi says that “we know who they are, ” he is referring to the five individuals he identifies by name in his article: Richards, Gingrich, Edelblut, Moffett, and Mendola. In light of this explicit statement, it borders on absurd to argue that Azzi’s allegations about “those who favor whitewashing history” are not of and concerning those five individuals. This Court, like the lower court, should reject this argument. IV. The Trial Court Properly Rejected the Union Leader Corporation’s Request That It Take Judicial Notice of Certain “Facts.” Appellee Union Leader Corporation asserts that it was error for the trial court to decline to take judicial notice of the following: (1) a Merriam-Webster Dictionary reflecting two entries for “white supremacy”; (Brief of Appellee Union Leader p. 40); (2) that there is currently “extensive debate and disagreement about what is meant by white supremacist or white supremacy, with no uniform, objectively understood definition”; (Brief of Appellee Union Leader, p. 40) (emphasis added)); and (3) “the fact of raging local and national debate and public commentary surrounding Critical Race Theory and HB544….” (Brief of Appellee Union Leader p. 42 (emphasis added)). Appellee Union Leader Corporation is not entitled to relief on its judicial notice claim for three reasons. First, the trial court’s decision to decline to reach the issue is not a judgment on the merits. Second, a decision by this Court on the judicial notice issue would amount to an advisory opinion on remand. Third, as a matter of substantive law, the Appellee Union Leader Corporation has not provided this Court with a sufficient record to support its claim of entitlement to the reversal of the trial court’s decision.

The trial court did not reach the merits of Appellee Union Leader’s claim. The Union Leader styled its cross-appeal as a Rule 7 Appeal from Trial Court Decision on the Merits. Supreme Court Rules define a “decision on the merits” to include an “order, verdict, opinion, decree, or sentence following a hearing on the merits or trial on the merits and the decision on motions made after such order, verdict, opinion, decree or sentence.” Sup. Ct. R. 3. However, the trial court did not make a decision on the merits of the judicial notice issue raised in the Appellee’s cross-appeal. Rather, it specifically and consciously did not reach that question, writing that, “the Court declines to take judicial notice at this stage, concluding that it does not need to take judicial notice in order to make its decision.” (Appendix at 0021). By declining to reach the issue, and deciding the case on alternative grounds, the trial court, for purposes of the order presently under appeal, rendered Union Leader’s evidentiary question moot. “The doctrine of mootness is designed to avoid deciding issues that have become academic.” Bleiler v. Chief, Dover Police Dept., 155 N.H. 693, 695 (2007). “The question of mootness is not subject to rigid rules; it is regarded as one of convenience and discretion.” Id. Under some circumstances, “[a] decision upon the merits may be justified where there is a pressing public interest involved, or future litigation may be avoided.” Id. Likewise, standing requirements require parties to “claim a concrete, personal injury.” Carnigan v. New Hampshire Dept. of Health and Human Svcs., 174 N.H. 362, 368 (2021). In this appeal, Appellee Union Leader Corporation has not claimed a concrete, personal injury sufficient to provide standing to challenge the trial court’s ruling and “the convenience and discretion” of this Court militate against reaching the question on appeal. On remand, Appellee Union Leader will have another opportunity to supplement the record and submit additional evidence to support its argument regarding the contemporary context in which public discussions concerning the meaning of “white supremacy” and “white supremacist” are occurring. At that time, the trial court may, or may not, decide to take judicial notice of facts asserted by Appellee Union Leader. Given that it is not foreclosed from asking the trial court to make a finding of judicial notice in the future, Appellee Union Leader has clearly not suffered any concrete or personal injury. There is simply no reason for this Court to reach an issue that will remain alive and subject to further consideration on remand. Should that occur, a decision from this Court would effectively serve as an impermissible advisory opinion. “Our constitutional republic confines the judiciary to deciding cases and not serving as a ‘super law firm.’” Duncan v. State, 166 N.H. 630, 641 (2014). Any decision by this Court concerning the taking of judicial notice would only serve to provide Appellee Union Leader with guidance and advice concerning its future actions in this case on remand. Whether for prudential mootness reasons or because Appellee’s lack standing, the Court should not address the issue. This Court should also decline Appellee’s request to reach the question not decided by the trial court because it failed to provide a sufficient record to decide the issue in its favor. “It is the burden of the appealing party to provide the court with a sufficient record to decide her issues on appeal, as well as to demonstrate that she raised her issues before the trial court.” Bean v. Red Oak Prop. Mgmt., Inc., 151 N.H. 248, 250 (2004). Here, Appellee has failed to provide the Court with a record sufficient to provide the relief requested. In support of this request, Appellee’s brief cites articles from popular news sources. It cites one sentence from a Forbes magazine piece by Janice Gassam, which it claims states that “[c]onversations about white supremacy, what it is, and how it manifests have intensified.” (Appellee’s Brief at 41). It also cites one paragraph from a Bloomberg Opinion piece written by Megan McArdle asserting that “[l]ooser use of ‘white supremacy, ’ to describe something considerably less explicit than advocating a race war, has become increasingly common.” (Appellee’s Brief at 41). Finally, Appellee quotes a short paragraph from a book titled White Fragility” by Robin DiAngelo, that includes the following quote: [f]or sociologists and those involved in the current racial justice movement, white supremacy is a descriptive and useful term to capture the all-encompassing centrality and assumed superiority of people defined and perceived as white and the practices based on this assumption. White supremacy in this context does not refer to individual white people and their individual intentions or actions but an overarching political, economic and social system of domination. (Appellee’s Brief at 41). In each of these instances, Appellee has provided this Court with limited excerpts of popular publications, rather than with the complete titles or information that goes beyond the brief quoted portions. Further, there is no indication in the form of broad survey data or other such sources that these published statements are widely accepted or even true.

When the trial court held oral argument on the Appellee’s motion to dismiss, the Union Leader Corporation made arguments about the definition of critical race theory “from the legal scholars and law professors who created critical race theory, namely Derrick Bell, Kimberle Crenshaw, and Richard Delgado.” T: 6. Appellee also referenced a newspaper article published by the Concord Monitor “discussing the controversy and using [sic] language of white supremacy to describe the opposition to critical race theory, ” T: 6-7, as well as a Portsmouth Herald article “talking about what critical race theory is and its relation to white supremacist ideology.” T:7. Finally, Appellee referred to another article in the Portsmouth Herald “discussing the argument using the language, “white supremacy, ” to discuss the opposition to critical race theory.” T:7. While these news articles are referenced in the transcript, they have not been provided to the Court as part of the record and therefore cannot be considered by the Court. In light of the limited record before it, there is simply insufficient evidence for this Court to find that the trial court erred in declining to take judicial notice as requested by Appellee. Further, even if the Court does consider Appellee Union Leader’s substantive claim, it should find that it is not entitled to relief. New Hampshire Rule of Evidence 201(a) provides that: [a] court may take judicial notice of a fact. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

The first category of evidence is facts that are “generally known” as “common knowledge” within the court’s territorial jurisdiction. This Court has recognized “common knowledge” in a variety of contexts. See, e.g. Thiem v. Thomas, 119 N.H. 598, 601 (1979)(whether a well hole will produce good water subject to uncertainty regardless of skillfulness with which well drilled); Couture v. Lewis, 105 N.H. 224, 225 (1963)(it is a matter of common knowledge that distance estimates of approaching motor vehicles unreliable); Maxfield v. Maxfield, 102 N.H. 101, 104 (1959)(danger of spontaneous combustion when oily rags stored in a barrel is matter of common knowledge). This Court has also approved taking judicial notice of commonly understood laws of science and nature. See, e.g., Crowley v. New Hampshire Fire Ins. Co., 100 N.H. 477, 479 (1957)(behavior of heavy, inanimate object tightly fastened to truck bed is matter of common knowledge); Leavitt v. Bacon, 89 N.H. 383, 387 (1938)(laws of inertia, for every action there is an equal and compensating reaction). However, willingness to take judicial notice of facts does not extend to highly technical or specialized knowledge that might be more appropriate for expert testimony. See, e.g., Fitzpatrick v. Public Service Co., 101 N.H. 35, 479 (1957)(declining to recognize effect of electric service wire contacting lightning rod as matter of common knowledge). The Court has also accepted facts relating to human health and life as matters of common knowledge. See e.g. Hanlon v. Pomeroy, 102, N.H. 407, 409 (1960)(uncertainty of full recovery from surgery is matter of common knowledge). Dunbar Fuel Co. v. Cassidy, 100 N.H. 397, 403 (1957)(impairment of use of arm generally known to affect ability to engage in unskilled, manual labor); Labrie v. Labrie, 113 N.H. 255, 257 (1973)(taking judicial notice of that muscular dystrophy is a progressively debilitating disease). Finally, the Court has also approved trial courts taking judicial notice of the operation of the financial marketplace and business practices common in New Hampshire. See, Murphy v. Murphy, 116 N.H. 672, 675 (1976)(taking judicial notice that used furniture has greater value to its owner than it has on the secondhand furniture market); Farm Bureau Mut. Auto Ins. Co. v. Manson, 94 N.H. 389, 392 (1947)(accepting as common knowledge that farmers routinely use trucks to do odd jobs off farm property). The second category of facts that a court can take judicial notice of is facts not subject to reasonable dispute. This category generally includes laws and ordinances, government data, or records of predictable natural phenomena. See, e.g. Leavitt v. Maynard, 105 N.H. 447, 448 (1964)(judicial notice taken of population of congressional district by reference to census bureau publication); Winnipeseogee Lake Co. v. Young, 40 N.H. 420, 430 (1860)(taking notice of locations of towns and counties by reference to statute establishing them); Bennett v. Dupuis, 92 N.H. 265, 267 (1942)(requirement of certification of fitness before person issued driver’s license); State v. Duranleau, 99 N.H. 30, 31-32 (1954)(approving taking judicial notice that main highway out of town is a public highway and of ordinances within territory where court sits); However, the Court has declined to take judicial notice of more complicated question, such as whether the Concord fire department is the recipient of state funds. State v. Gagnon, 155 N.H. 418, 420 (2007). This is true even though this information could, with sufficient resources, be found in reliable public sources. Likewise, this Court has reversed the trial court when it found that the trial judge sought information outside the record provided by the parties to determine the value of a piece of real property. In the Matter of Rokowski and Rowkowski, 168 N.H. 57, 61 (2015)(judicial notice not supported by internet website property value estimate). Appellee’s judicial notice request fits into neither the “generally known” nor the “not subject to reasonable dispute” category. On the contrary, discussions of matters such as Critical Race Theory or the changing definition of “white supremacy” are primarily the subject of high level academic debate and these topics have only just begun to seep explicitly into the popular consciousness and debate. They are the every antithesis of “common knowledge” and are far from the kind of commonly understood facts and phenomena that New Hampshire courts take judicial notice of. While it is no doubt tempting for the Appellee Union Leader Corporation, publisher of New Hampshire’s only statewide newspaper, to believe that news reports and op-ed columns published in the press contain a degree of accuracy sufficient to permit courts to take judicial notice of their contents, newspaper and magazine articles are of an entirely different character than government data publications, almanacs, and other authoritative documents. For the reasons set forth above, this Court should decline Appellee’s request to take judicial notice of these matters. V. The Court Should Recognize the Tort of False Light Invasion of Privacy Both Appellees argue that the Court should not expressly recognize the tort of false light invasion of privacy because that tort would be subject to the same First Amendment protections as defamation claims and that establishing the viability of such a claim does not allow the plaintiff to avoid First Amendment protections. (Appellee Union Leader Corporation’s Brief at 38 (plaintiff “may not bypass the strictures of the First Amendment … by seeking publication damages for non-defamation tort claims.”)(citing Allen v. Beririch, 2021 U.S. App. LEXIS 20547 (4th Cir. July 12, 2021)); (Appellee Azzi’s Brief, at 43 (urging refusal to recognize the tort of false light invasion of privacy tort “for fear that cause of action threatens speech and press rights.”)). These arguments are non-sequiturs. The plaintiff does not so much as suggest that recognition of the tort of false light invasion of privacy permits recovery in a way that lessens First Amendment protections enjoyed by speakers. Indeed, the Second Amended Complaint implicitly recognizes the full breadth of First Amendment protections by expressly alleging that Azzi and the Union Leader Corporation “made and published [the statements] with knowledge of their falsity or, at the very least, with reckless disregard for their falsity and for the false light in which they would portray Plaintiff.” (Appendix at 0009). This allegation mirrors the heightened “actual malice” standard required by New York Times v. Sullivan, 376 U.S. 254, 270 (1964), and its progeny. By definition, a claim that alleges an act by defendants that meets the heightened New York Times standard cannot at the same time pose a threat to free speech because it would supposedly permit recovery pursuant to a lesser standard. Yet that is what Appellees argue.

Likewise, Appellees fail to join Appellant’s argument concerning factors unique to New Hampshire’s political and civic traditions of open government and citizen involvement in matters of self-governance. As set forth in Appellant’s opening brief, Mr. Richards accepted the offer of participation extended to all Granite Staters, and as a consequence, he was held up to public scorn and ridicule in the form of lies and public shaming and treated by the Appellees as a public figure when he is not one. The tort of false light invasion of privacy is a good fit for New Hampshire as it protects citizens from invasions of privacy while fully protecting the Free Speech rights of fellow citizens. The Court should take this opportunity to recognize the tort of free speech invasion of privacy. CONCLUSION For the reasons set forth herein, the trial court erred in dismissing both counts set forth in the Second Amended Complaint and the Appellant therefore asks this Honorable Court to reverse. REQUEST FOR ORAL ARGUMENT The Appellant requests 15 minutes of oral argument. CERTIFICATIONS I, Richard J. Lehmann, hereby certify that on November 18, 2022, copies of the foregoing and the Appendix were forwarded to opposing counsel of record, Michael Lewis, Esq., Greg Sullivan, Esq., and Kathleen Sullivan, Esq., by electronic service.

I, Richard J. Lehmann hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains less that 9, 500 words. Counsel relied upon the word count feature of the software used to prepare this brief in gathering word count information. Respectfully Submitted DANIEL RICHARDS By his attorneys, Lehmann Major List, PLLC /s/Richard J. Lehmann November 18, 2022 __________________________ Richard J. Lehmann (Bar No. 9339) 6 Garvins Falls Road Concord, N.H. 03301 (603) 731-5435 rick@nhlawyer.com /s/Samantha Harris November 18, 2022 __________________________ Samantha Harris Allen Harris PLLC P.O. Box 673 Narberth, PA 19072 (860) 345-5310 sharris@allenharrislaw.com