UNITED STATES DISTRICT COUR T FOR THE DISTRICT OF NEW HAMPSHIRE

Ro bert Patric k Lew is et al.

v. Case No. 22-cv-126-PB Opinion No.

Seth Ab ramso n

MEMOR ANDUM AND OR DER

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 Attac k o n the Capito l

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.

1 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,

, 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,

, at *5 &

n.83 (Del. Super. Ct. Mar. 31, 2023); Eastman v. Thompson, No. 8:22-cv-

00099-DOC-DFM,

, 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,

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

2 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

1 The complaint denies that Luelsdorff is the “Director of Business Development” for 1AP but does not dispute that he is a member of 1AP. See Doc. 16 at 20.

3 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. Abramso n’s R epo rting

Abramson is an attorney and journalist who publishes a substack 2

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.

2 Substack is a subscription email newsletter platform “which allows writers to send digital newsletters directly to their readers and monetize their work by putting it behind a paywall[.]” See Fatemi, The Rise of Substack—And What’s Behind It, Forbes (Jan. 20, 2021), https://www.forbes.com/sites/falonfatemi/2021/01/20/the-rise-of-substack-and- whats-behind-it/?sh=353c26a4159f; see also Doc. 22 at 4 n.2.

4 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

5 “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

6 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

7 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.” See Doc. 20-8 at 2, 15, 18, 36. A

number of other Twitter users also posted about the plaintiffs, asserting, for

example, that they were part of “Flynn’s QAnon militia group” and were

“standing by with weapons on Jan. 6th” to “cheer[] on the overthrow of the

[United States Government] in real-time.” 3 Doc. 16 at 8, 11, 13. According to

the plaintiffs, those statements were posted pursuant to a conspiracy led by

Abramson to defame the plaintiffs. Id. at 14-16.

As a result of the damaging statements published by Abramson and his

co-conspirators, the plaintiffs suffered significant personal and economic

harm. Id. at 17. The plaintiffs were subjected to “public scorn, ridicule and

contempt,” to the point that “Luelsdorff’s oldest son [considered] changing his

name.” Id. As a result, Lewis and Luelsdorff have suffered “embarrassment,”

“mental anguish,” and “fear of bodily injury and death.” Id. at 32. Moreover,

3 One of the challenged co-conspirator statements was posted by an individual identified as David Crosse on a website other than Twitter. See Doc. 16 at 12, 14 (Statement 33). Nonetheless, because the vast majority of the co-conspirator statements were posted to Twitter and many of the co- conspirators are identified only by their Twitter accounts, I occasionally refer to the alleged co-conspirators as “other Twitter users” for ease of reference.

8 Lewis and Luelsdorff have lost clients for their respective businesses, and

1AP has lost donors. Id. at 31-32.

D. The Co mplaint

Invoking this court’s diversity jurisdiction, the plaintiffs filed a

complaint against Abramson alleging defamation (Count I), defamation by

implication (Count II), false light invasion of privacy (Count III), and common

law conspiracy (Count IV). Id. at 19-37. Each count challenges 41 different

statements published by either Abramson or one of his alleged co-

conspirators. Id. at 4-14. Abramson now moves to dismiss the complaint in its

entirety, arguing that it fails to state a claim under any of the four causes of

action.

II. STANDARD OF R EVIEW

To survive a motion to dismiss for failure to state a claim, a plaintiff

must allege facts sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp.

v. Twombly,

(2007)). A claim is facially plausible if it pleads

“factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.”

On a motion to

dismiss, I consider only the allegations in the complaint and any documents

incorporated therein, including “the relevant entirety of a document integral

to or explicitly relied upon in the complaint, even though not attached to the

9 complaint[.]” See Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,

(1st Cir. 2000) (quoting Shaw v. Dig. Equip. Corp.,

(1st Cir. 1996)); see also Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,

(1st Cir. 2008).

In testing a complaint’s sufficiency, I employ a two-step approach. See

Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011). First, I

screen the complaint for statements that “merely offer legal conclusions

couched as fact or threadbare recitals of the elements of a cause of action.”

(cleaned up). A claim consisting of little more than “allegations that merely

parrot the elements of the cause of action” may be dismissed.

Second, I

credit as true all of the plaintiff’s non-conclusory factual allegations and the

reasonable inferences drawn from those allegations, and then determine if

the claim is plausible.

The plausibility requirement “simply calls for

enough fact to raise a reasonable expectation that discovery will reveal

evidence” of illegal conduct. Twombly,

. The “make-or-break

standard” is that those allegations and inferences, “taken as true, must state

a plausible, not a merely conceivable, case for relief.” Sepúlveda-Villarini v.

Dep’t of Educ. of P.R.,

(1st Cir. 2010).

III. ANALYSIS

The plaintiffs’ claims arise out of 41 different statements, 28 of which

were made by Abramson on either substack or Twitter, and 13 of which were

10 made by Abramson’s alleged co-conspirators. The plaintiffs argue that

Abramson is liable for conspiracy, defamation, defamation by implication,

and false light invasion of privacy for both his own statements and those of

his co-conspirators. 4 Abramson moves to dismiss all four of the plaintiffs’

claims. Abramson first argues that the plaintiffs have failed to plausibly

allege that he agreed with others to commit a tort, and therefore cannot state

a claim for conspiracy or otherwise hold him liable for the statements of his

alleged co-conspirators. As to his own statements, Abramson argues that the

challenged statements are not actionable under any of the plaintiffs’ theories

because they are either constitutionally protected opinions or are

substantially true. Finally, Abramson argues that, even if some of the

statements are actionable, the plaintiffs’ defamation claim must nonetheless

be dismissed because they have failed to allege that the statements were

made with actual malice. I consider each argument in turn. 5

4 Both parties cite exclusively to New Hampshire common law as the controlling substantive law. I therefore assume that New Hampshire law applies without engaging in a choice-of-law analysis. See Hershey v. Donaldson, Lufkin & Jenrette Sec. Corp.,

(1st Cir. 2003).

5 Each challenged statement is reproduced in the attached appendix. I refer to the challenged statements by the numbers assigned to them in the plaintiffs’ complaint. The complaint sometimes quotes from the relevant publications directly and at other times rephrases statements to support the plaintiffs’ claim that the statements are defamatory by implication. Where the language quoted in the complaint diverges from the language of the statement it purports to describe, I credit the language as it appears in the record. See Clorox Co. P.R.,

. For purposes of analysis,

11 A. Co nspirac y Liability

A civil conspiracy is “a combination of two or more persons by concerted

action to accomplish an unlawful purpose, or to accomplish some purpose not

in itself unlawful by unlawful means.” Jay Edwards, Inc. v. Baker,

(1987) (quoting 15A C.J.S. Conspiracy § 1(1), at 596 (1967)). “The

elements of a cause of action for civil conspiracy are ‘(1) two or more persons

(including corporations); (2) an object to be accomplished (i.e. an unlawful

object to be achieved by lawful or unlawful means or a lawful object to be

achieved by unlawful means); (3) an agreement on the object or course of

action; (4) one or more unlawful overt acts; and (5) damages as the proximate

result thereof.’” Sykes v. RBS Citizens, N.A., 2 F. Supp.3d 128, 138 (D.N.H.

2014) (quoting Jay Edwards, Inc.,

). “It is a core principle of

conspiracy that the activities of each are attributable to all.” O’Hara v. City of

New York, 568 F. Supp.3d 241, 252 (E.D.N.Y. 2021). Thus, once a conspiracy

is established, each conspirator may be held liable for the actions of his co-

conspirators in furtherance of the shared conspiracy. See McFarland v.

McFarland,

(N.D. Iowa 2010); see also 15A C.J.S.

Conspiracy § 18 (2023) (cited favorably in Jay Edwards, Inc.,

).

however, I will assume that each statement that the complaint rephrases can be read to imply what the plaintiffs claim it implies.

12 The plaintiffs allege that Abramson conspired with several other

Twitter users to defame the plaintiffs, and therefore should be held liable for

the defamatory statements made by his co-conspirators. 6 To support their

conspiracy claim, the plaintiffs allege that Abramson and his co-conspirators

(1) communicated with one another; (2) shared information and “proudly

admitted that they were engaged in a ‘collaborative effort’” to gather “intel;”

and (3) republished or otherwise repeated one another’s statements. Doc. 1 at

14. The complaint was later amended to add that, after the plaintiffs filed

their initial complaint, at least some of Abramson’s co-conspirators “locked

down their Twitter accounts and almost overnight ceased publication of any

statements of or concerning Plaintiffs,” which the plaintiffs claim constitutes

“circumstantial evidence of the existence of a conspiracy to defame” them.

Doc. 16 at 36 (emphasis in original).

The plaintiffs’ allegations do not provide an adequate basis from which

to plausibly infer that Abramson and the alleged co-conspirators had an

agreement to spread false and damaging information about the plaintiffs. At

6 In his motion to dismiss, Abramson argues that, pursuant to Section 230 of the Communications Decency Act,

(c)(1), he cannot be held liable for “retweeting” content by other users. Doc. 20-1 at 20. At the motion hearing, however, the plaintiffs clarified that they were not claiming that Abramson was liable for “retweeting” the co-conspirators statements, but rather they were seeking to hold Abramson liable for the statements of his co-conspirators pursuant to a theory of conspiracy liability. Accordingly, I need not consider Abramson’s argument under the Communications Decency Act.

13 most, the allegations show that the alleged co-conspirators and Abramson

interacted with one another and committed similar torts. But such actions

cannot form the basis for conspiracy liability unless they were carried out

pursuant to an agreement to commit a tort. See 15A C.J.S. Conspiracy § 12

(2023) (“Without a meeting of the minds, the independent acts of multiple

wrongdoers do not amount to a conspiracy.”). And here, there are no factual

allegations that plausibly support the plaintiffs’ assertion of a tortious

agreement. See Censabella v. Town of Weare,

,

, at *6 (D.N.H. 2017) (concluding that a conspiracy claim must be

dismissed where there is “nothing in the complaint to support a plausible

inference that [the defendant] ever entered into an agreement with anyone

else to inflict some wrong against [the plaintiff]”).

The plaintiffs argue that the close temporal proximity between the

initiation of their suit and the co-conspirators’ efforts to “lock[] down their

Twitter accounts” supports an inference that they were all participants in a

conspiracy. See Doc. 16 at 36. While the timing of the co-conspirators’ actions

may support an inference that the plaintiffs’ suit spurred the “lock down,” it

is a bridge too far to claim that the “lock down” supports te plaintiffs’

conspiracy claim. Rather, it seems far more likely that those Twitter users

ceased their actions, not because they had conspired with Abramson, but

because the suit alleged that their statements were defamatory and they

14 feared for their own liability. See Iqbal,

(noting that

allegations of behavior “consistent with an unlawful agreement . . . d[o] not

plausibly suggest an illicit accord” where it is “more likely explained by[]

lawful . . . behavior”).

Accordingly, the plaintiffs have failed to plausibly allege the existence

of a conspiracy, and Count IV must be dismissed. Without a properly pled

conspiracy, Abramson cannot be held liable for the statements of others.

Therefore, the remaining claims must also be dismissed to the extent they

challenge statements made by others. 7

7 Statements 3, 7, 15, 21, 22, 23, 27, 28, 30, 31, 32, 33, 36. See Doc. 16 at 4-14. The complaint alleges that Statement 3 was published by another Twitter user and repeated by Abramson in his June 30 substack. Id. at 4. The challenged statement does not appear in the June 30 substack provided to the court, and therefore I do not credit the allegation that Abramson repeated the statement. See Clorox Co. P.R.,

. The record does show, however, that Abramson provided a link to the challenged tweet in his substack. To the extent the plaintiffs claim that Abramson is liable for hyperlinking to the tweet, this argument is foreclosed by New Hampshire’s “single publication rule,” which prohibits independent actions based on the subsequent dissemination of a publication. See Keeton v. Hustler Magazine, Inc.,

(1988). “Although the republication exception to the single publication rule provides that any future republication of the alleged false statements could form the basis for a new cause of action against the republisher, it appears that the majority of courts that have squarely addressed whether a hyperlink constitutes republication have concluded that it does not.” See Landino v. Mass. Teachers Ass’n, No. 20-cv-11392-DJC,

, at *5 n.2 (D. Mass. Aug. 9, 2022) (cleaned up); see also Lokhova v. Halper,

, 142 (4th Cir. 2021) (“persuasive case law suggests, although creating hypertext links to previously published statements may technically direct audiences’ attention to the prior dissemination of those statements, such links do not constitute republication.”) (cleaned up); Brimelow v. N.Y. Times Co., No. 20 civ. 222 (KPF),

, at *7

15 B. Defamatio n, Defamatio n b y Imp lic atio n, and False Light

I next consider whether the statements published by Abramson state a

claim under the plaintiffs’ remaining theories. I begin by outlining the

elements of each cause of action before turning to Abramson’s arguments that

the statements are nonactionable because they either are constitutionally

protected statements of opinion or are substantially true.

1. Elements

To state a claim for defamation, a plaintiff must allege that the

defendant “publish[ed] a false and defamatory statement of fact about the

plaintiff[] to a third party.” See Boyle v. Dwyer,

, 553 (2019)

(cleaned up). Because falsity is a required element, a statement is not

actionable if it is “substantially true,” meaning “the gist or sting of the

remark” is justified notwithstanding any minor inaccuracies. See Thomas v.

Tel. Publ’g Co.,

, 335 (2007) (quoting Faigin v. Kelly,

(D.N.H. 1997)). A statement is defamatory if it exposes the

plaintiff “to contempt, hatred, scorn or ridicule, or tend[s] to impair [the

plaintiff’s] standing in the community.” See id. at 338. On a motion to

dismiss, the court is charged with determining “whether the language in

question could reasonably have been read to defame the plaintiff.” See

(S.D.N.Y. Dec. 16, 2020) (“Courts have concluded that merely hyperlinking to an existing publication does not . . . give rise to liability.”). The plaintiffs do not present an argument as to why I should conclude otherwise.

16 Duchesnaye v. Munro Enters., Inc.,

(1984). In making

this determination, “a court must read the statement ‘in the context of the

publication taken as a whole.’” Collins v. Univ. of N.H.,

(D.N.H. 2010) (quoting Duchesnaye,

).

Defamation by implication is a particular theory of defamation whereby

a defendant may be held liable for making a statement that, while literally

true, is presented in a way that conveys a false and defamatory implication.

See Howard v. Antilla,

, 44 & n.6 (D.N.H. 1999); see also

Duchesnaye,

(recognizing that a defamation claim could be

premised on a defamatory implication). For example, courts have recognized

a cause of action for defamation by implication where “the defendant

juxtaposes a series of facts so as to imply a defamatory connection between

them, or creates a defamatory implication by omitting facts.” See Jews For

Jesus, Inc. v. Rapp,

(Fla. 2008); Stevens v. Iowa

Newspapers, Inc.,

(Iowa 2007); see also Smolla, Law of

Defamation § 4:16 (2d ed. 2023) (collecting cases). Where a claim is based on

a defamatory inference, that “inference, once defined, is treated like a claim

for direct defamation and is subject to the same constitutional guardrails.”

See Cheng v. Neumann,

, 444 (1st Cir. 2022).

Whereas “private plaintiffs can succeed in defamation actions on a

state-set standard of proof (typically, negligence) . . . the Constitution

17 imposes a higher hurdle for public figures[.]” See Pendleton v. City of

Haverhill,

(1st Cir. 1998). Public figures cannot recover in

defamation actions unless they demonstrate that the defendant made the

challenged statements with “‘actual malice’—that is, with knowledge that it

was false or with reckless disregard of whether it was false or not.” See N.Y.

Times Co. v. Sullivan,

(1964). The Supreme Court

recognizes two kinds of public figures: general-purpose and limited-purpose.

See Trotter v. Jack Anderson Enters., Inc.,

(5th Cir. 1987).

A general-purpose public figure is marked by “general fame or notoriety in

the community, and pervasive involvement in the affairs of society[.]” Gertz

v. Robert Welch, Inc.,

(1974). A limited-purpose public

figure is someone who may not be known in general, but has “thrust

themselves to the forefront of particular public controversies in order to

influence the resolution of the issues involved.”

. Whether an

individual is a private or public figure presents a question of law for the

court’s determination. See Pendleton,

.

“The New Hampshire Supreme Court has never explicitly recognized

the viability of a claim for false light.” Howard v. Antilla,

(1st Cir. 2002). Nonetheless, “[t]his court has predicted that New Hampshire

law would apply the elements of the tort which are provided in the

18 Restatement (Second) of Torts § 652 (1977), as have other jurisdictions.” 8

O’Neill v. Valley Reg’l Health Care, Inc.,

,

, at

*2 (D.N.H. 2001); see, e.g., Wentworth-Douglass Hosp. v. Young & Novis

Prof’l Ass’n,

,

, at *6 (D.N.H. 2011); Philbrick

v. eNom, Inc.,

(D.N.H. 2009); Douglas v. Pratt,

,

, at *5 (D.N.H. 2000). Under § 652E of the

Restatement (Second) of Torts, a defendant is liable for false light invasion of

privacy if (1) the defendant “gives publicity to a matter concerning [the

plaintiff] that places [the plaintiff] before the public in a false light,” (2) that

false light “would be highly offensive to a reasonable person,” and (3) the

defendant “had knowledge of or acted in reckless disregard as to the falsity of

the publicized matter and the false light in which the other would be

placed.” 9 “[I]t is essential . . . that the matter published concerning the

8 Abramson cites to Mansfield v. Arsenault, No. 2020-0100,

(N.H. Jan. 8, 2021) and Thomas, 151 N.H. at 440, for the proposition that New Hampshire does not recognize false light invasion of privacy as a cause of action. In those cases, however, the New Hampshire Supreme Court merely declined to consider whether the tort is recognized in the state, without foreclosing the possibility. See Mansfield,

at *2; Thomas, 151 N.H. at 440. Abramson does not provide any argument as to why I should abandon this court’s consistent position that the New Hampshire Supreme Court would recognize a cause of action for false light invasion of privacy.

9 Although the Restatement appears to require proof of actual malice in all cases, the authors included a “Caveat,” which notes that “[t]he Institute takes no position” on whether recovery may be obtained based on a showing of mere negligence. See Restatement (Second) of Torts § 652E. This

19 plaintiff is not true.” Id. at cmt. A. Thus, “the false light tort parallels the

substantial truth rules that govern defamation.” Smolla, Law of Defamation §

10:23 (2d ed. 2023).

2. Actionability of Statements

Abramson argues that the challenged statements are not actionable

under any of the plaintiffs’ theories because they either constitute

formulation is based on Time, Inc. v. Hill,

(1967), where the Supreme Court held that the Constitution required plaintiffs in a false light action to “pro[ve] that the defendant published the [statement] with knowledge of its falsity or in reckless disregard of the truth.” The continuing viability of Hill, however, has been called into question following Gertz, where the Court concluded that the Constitution requires proof of actual malice in defamation actions only where the plaintiff is a public figure. See

; see also Restatement (Second) of Torts § 652E cmt. D (discussing the effect of Gertz on the holding in Hill). Given this uncertain landscape, some courts have required proof of actual malice in all false light actions, see, e.g., Goodrich v. Waterbury Republican-American, Inc.,

(Conn. 1982); McCall v. Courier-Journal & Louisville Times Co.,

(Ky. 1981); whereas others have held that proof of negligence is sufficient where the plaintiff is a private figure, see, e.g., West v. Media Gen. Convergence, Inc.,

(Tenn. 2001); Crump v. Beckley Newspapers, Inc.,

(W. Va. 1983). I need not resolve the necessary standard of proof at the present time because it has not been raised by the parties. Both parties discuss actual malice only with regards to the defamation claims, and seem to assume that proof of actual malice is not required if the plaintiffs are private figures. See Doc. 20-1 at 16-18; Doc. 22 at 17-18. Indeed, while Abramson’s motion to dismiss could be read to argue that the false light claim should be dismissed for failure to plead actual malice if the plaintiffs are public figures, it does not assert that the same result follows even if the plaintiffs are private figures. See Doc. 20-1 at 22. Accordingly, I express no opinion on whether the plaintiffs must prove actual malice in order to sustain their false light claim if it is determined that the plaintiffs are private figures.

20 constitutionally protected opinions or are not adequately alleged to be false. I

consider each of Abramson’s arguments in turn.

a. Co nstitutio nally Pro tec ted Op inio ns

Although actions for defamation and false light are primarily governed

by state tort law, “[t]he Supreme Court has recognized ‘constitutional limits

on the type of speech which may be the subject of state [tort] actions.’”

Piccone v. Bartels,

(1st Cir. 2015) (quoting Milkovich v.

Lorain Journal Co.,

(1990) (emphasis in original)); see also

Weyrich v. New Republic, Inc.,

(D.C. Cir. 2001) (“Though

invasion of privacy false light is distinct from the tort of defamation, the

same First Amendment protections apply.”). Of principal importance here is

the First Amendment’s protection for speech that offers an opinion but does

not declare or imply provably false facts. See Gray v. St. Martins Press Inc.,

(1st Cir. 2000).

The extent of the First Amendment’s protection for statements of

opinion was first examined by the Supreme Court in Milkovich,

. In that case, the Supreme Court considered whether an editorial article

that accused the plaintiff of perjury was nonactionable under the First

Amendment because it was framed as the author’s opinion.

. In

holding that the article was actionable, the Court rejected the argument that

the First Amendment provides a “wholesale defamation exemption for

21 anything that might be labeled ‘opinion.’”

. Afterall, the Court

observed, a statement couched as an opinion may imply the existence of

underlying defamatory facts, thereby inflicting just as much damage as

unqualified assertions of facts. See

. Accordingly, the Constitution

makes no distinction between the statements “Jones is a liar” and “In my

opinion Jones is a liar,” both of which equally imply that the speaker

possesses “knowledge of facts which lead to the conclusion that Jones told an

untruth.”

Importantly, however, the Court clarified that the First

Amendment does protect statements which “cannot reasonably be interpreted

as stating actual facts about an individual.”

(cleaned up). Therefore,

statements that constitute mere “rhetorical hyperbole” or are otherwise not

“sufficiently factual to be susceptible of being proved true or false” cannot

form the basis for tort liability. See

. In sum, the relevant inquiry

is not whether the challenged statement is one of “fact” or “opinion,” but

rather whether the statement declares or implies the existence of damaging

facts. See

Not long after Milkovich was decided, the First Circuit examined its

reach in Phantom Touring, Inc. v. Affiliated Publications,

(1st

Cir. 1992). In that case, a theatre company sued a newspaper for a series of

articles that accused the company of engaging in deliberately deceptive

marketing.

. The First Circuit ultimately concluded that the

22 challenged statements were protected by the First Amendment because the

author fully disclosed the facts upon which his accusations were based, thus

making clear that he was offering only his “personal conclusion about the

information presented” rather than stating objective facts.

. In so

holding, the court acknowledged that Milkovich did not directly address the

actionability of opinions based only on disclosed facts, but nonetheless

concluded that the Supreme Court’s holding that “a challenged statement

must be understood as stating actual facts about an individual . . .

unquestionably excludes from defamation liability . . . statements clearly

recognizable as pure opinion because their factual premises are revealed.”

at 731 n.13.

Since Phantom Touring, the First Circuit has consistently held that a

“speaker can immunize his statement from [tort] liability by fully disclosing

the non-defamatory facts on which his opinion is based.” 10 See Piccone, 785

10 The same is true as a matter of state tort law. The New Hampshire Supreme Court has held that an action for defamation requires “that the challenged statement be one ‘of fact,’” meaning it must be objectively verifiable. Automated Transactions v. Am. Bankers Ass’n,

, 532- 533 (2019) (quoting Pierson v. Hubbard,

(2002)). And, because an action for false light invasion of privacy requires that the challenged assertion be provably false, assertions that are non-falsifiable are necessarily nonactionable. Cf. Hamberger v. Eastman,

(1964). Accordingly, “when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts,” the statement cannot be considered an assertion of fact and therefore cannot form the basis for liability. See Automated Transactions, 172 N.H. at 534 (quoting Riley v. Harr,

F.3d at 772; see, e.g., Cheng, 51 F.4th at 447; McKee v. Cosby,

(1st Cir. 2017); Yohe v. Nugent,

(1st Cir. 2003); see also

Veilleux v. Nat’l Broad. Co.,

(1st Cir. 2000) (noting that

constitutional limitations on defamation actions apply equally to false light

actions). In such a case, the statement is clearly “a subjective view, an

interpretation, a theory, conjecture, or surmise” and not an assertion of

objectively verifiable fact. See Gray,

(quoting Haynes v.

Alfred A. Knopf, Inc.,

(7th Cir. 1993)); see also Partington

v. Bugliosi,

(9th Cir. 1995) (concluding that statements

are protected when, “read in context, they are not statements implying the

assertion of objective facts but are instead interpretations of the facts

available to both the writer and the reader”).

First Amendment protections for a speaker’s interpretation of disclosed

facts play an essential role in fostering the sort of “free expression and

interchange of ideas that the First Amendment is designed to promote.” See

Geary v. Renne,

(9th Cir. 1989). As the Supreme Court

has recognized, “right conclusions are more likely to be gathered out of a

multitude of tongues, than through any kind of authoritative selection.”

Sullivan,

(quoting United States v. Associated Press,

(S.D.N.Y. 1943)). In this way, the freedom of speech

282, 289 (1st Cir. 2002)).

24 guaranteed by the First Amendment “is not only an aspect of individual

liberty—and thus a good unto itself—but also is essential to the common

quest for truth and the vitality of society as a whole.” Bose Corp. v.

Consumers Union of U.S., Inc.,

(1984). Immunizing a

speaker’s interpretation of disclosed facts furthers this quest for truth by

protecting a speaker who wishes to offer one interpretation while enabling

others to voice contrary conclusions. See McKee,

.

This “latitude for interpretation” is of paramount importance where “a

writer is evaluating or giving an account of inherently ambiguous materials

or subject matter” that is susceptible to a multitude of interpretations. See

Moldea v. N.Y. Times Co.,

(D.C. Cir. 1994); see also

Partington,

(“When, as here, an author writing about a

controversial occurrence fairly describes the general events involved and

offers his personal perspective about some of its ambiguities and disputed

facts, his statements should generally be protected by the First

Amendment.”). Without such latitude, “the robust debate among people with

different viewpoints that is a vital part of our democracy would surely be

hampered.” Partington,

.

To this end, courts must take special care to impose liability only for

those statements that, viewed in context, “reasonably would be understood to

declare or imply provable assertions of fact,” and not those statements that

25 simply offer one of several possible interpretations of disclosed facts. See

Piccone,

(quoting Phantom Touring,

). This is

a question of law that the court must consider in reference to “the totality of

the circumstances in which the specific challenged statements were made,

including the general tenor and context of the conversation and any

cautionary terms used by the person publishing the statement.”

.

For this reason, it is important to note the general nature of

Abramson’s substack and Twitter, large portions of which have been

incorporated by reference into the plaintiffs’ complaint and reproduced in the

record. Abramson describes his work as “curatorial journalism,” through

which he compiles and analyzes public sources in order to shed light on

important political matters. See Doc. 20-1 at 4; see also What I Told the

Washington Post About the Suspension of Donald Trump from Twitter at 4;

January 5 “War Council” Attendee Corey Lewandowski Had a Meeting With

Donald Trump on January 5th, and It May Well Have Been at Trump

International Hotel at 2; January 5 War Council at Trump International May

Have Had More Attendees Than Previously Known at 12 (all conventionally

filed per Doc. 24-1). Based on my review of dozens of Abramson’s substack

articles and tweets, this description seems fitting. Most of Abramson’s

content incorporates or links to a myriad of photographs, interviews, or social

media posts, the vast majority of which appear to derive from public sources.

26 Abramson analyzes this information to offer various theories about President

Trump, prominent Republicans (as in the party), and the events of January 6,

all while explaining how his curated sources support his conclusions. All told,

it is apparent that the principal purpose—and, indeed, commercial value—of

Abramson’s work is to compile and analyze publicly available sources in an

attempt to offer answers to hotly debated questions of public concern, not to

merely state objective facts that have already been definitively established.

The plaintiffs do not appear to dispute this general characterization of

Abramson’s publications, but they nonetheless argue that the context of

Abramson’s statements about them would lead his readers to believe that he

is offering only objective facts. To support their argument, the plaintiffs point

out that Abramson named his substack “Proof” and made frequent reference

to “source[s]” and “evidence” without qualifying his assertions as opinions.

Doc. 22 at 16. The plaintiffs also note that Abramson touted the fact that he

is an “attorney,” thereby bolstering his authority and credibility in the minds

of readers.

As an initial matter, that Abramson did not qualify his statements is

not determinative, since “the law does not force writers to clumsily begin each

and every sentence with language such as ‘I think,’ or ‘in my opinion,’ for a

statement to constitute an opinion.” Automated Transactions, 172 N.H. at

546 (cleaned up). Moreover, given the greater context of Abramson’s

27 publications, references to “Proof,” “evidence,” and the like appear to refer to

the facts Abramson gathers in order to reach his ultimate conclusions, not his

conclusions themselves. And Abramson’s representation that he is an

attorney conveys to the reader, not that he possesses undisclosed facts, but

rather that he interprets the disclosed facts through a particular lens that his

readers may find valuable. With this context in mind, I turn to each of the

challenged statements.

Many of the challenged statements accuse one or more of the plaintiffs

of being “radical,” “militant,” “dangerous,” or “extremists.” In Cheng, 51 F.4th

at 446, the First Circuit concluded that similar statements classifying the

plaintiff in that case as “[r]ight-wing,” “far-right,” and a “conspiracy theorist”

were the sort of “rhetorical hyperbole” that are nonfactual and therefore

protected by the First Amendment. Like the statements in Cheng, the

challenged assertions here are the sort of “vague, judgement-based terms

that admit of numerous interpretations and are not objectively provable as

false.” See id. (cleaned up); see also Nat’l Rifle Ass’n v. Cuomo, 350 F.

Supp.3d 94, 133 (N.D.N.Y. 2018) (finding that the defendant’s “statement

that ‘[the plaintiff] is an extremist organization' is clearly an expression of his

opinion”). Nor do these statements, viewed in context, imply the existence of

underlying facts, given that the terms are inherently subjective and value

laden. See Automated Transactions, 172 N.H. at 533-534 (quoting Levinsky’s,

28 Inc. v. Wal-Mart Stores, Inc.,

(1st Cir. 1997)) (“‘The vaguer

a term, or the more meanings it reasonably can convey, the less likely it is to

be’ verifiable and hence actionable.”). Accordingly, such statements are

constitutionally protected and hence nonactionable. 11

To be sure, many of the challenged statements go beyond opining on

the plaintiffs’ viewpoints and could be read to either imply or directly allege

that the plaintiffs played a role in the January 6 attack on the Capitol. I do

not doubt that, as the plaintiffs assert, such allegations are capable of

defaming the plaintiffs if they are assertions of verifiable facts rather than

opinions based only on disclosed facts. Nonetheless, many of these allegations

are not actionable because they are opinions based on fully disclosed facts

that were either directly discussed or linked to in the relevant publication,

and are therefore protected by the First Amendment.

Most of Abramson’s substacks go to great lengths to outline the

relevant facts and walk the reader through how those facts support

11 Statements 2 (to the extent it accuses the plaintiffs of being “militant extremist[s]”), 8 (to the extent it accuses Lewis of having “extremely dangerous” views), 9 (to the extent it accuses plaintiffs of being “radical, dangerous, [and] militant”), 12 (to the extent it accuses the plaintiffs of being “militant[s]”), 13 (to the extent it classifies the plaintiffs as “radical militant extremists”), 18 (to the extent it refers to Lewis as a “militant extremist” that is “a legitimate danger to national security”), 25 (to the extent it refers to Lewis as a “domestic extremist[]”), 26 (to the extent it classifies Luelsdorff as a “domestic extremist”), 29 (to the extent it accuses 1AP of being a “paramilitary extremist group”). See Doc. 16 at 4-14.

29 Abramson’s ultimate conclusions. For example, in his June 30 substack,

Abramson directly accuses the plaintiffs of being involved in the January 6

insurrection. Doc. 20-5 at 5-10. Abramson bases his accusations on (1) the

photograph of Luelsdorff in the Willard room, which is prominently displayed

in the substack, and (2) statements made by Lewis in a podcast interview,

which is linked to and extensively quoted in the substack. Id. at 2-3, 7.

Abramson asserts that the photograph of Luelsdorff and Lewis’ interview

prove that the plaintiffs were involved in the Willard room, then concludes by

explaining why he views 1AP’s proximity to President Trump as alarming in

light of the views Lewis expressed in the podcast. See id. at 7, 9-10. By

carefully detailing the facts on which his statements were based, Abramson

signaled to the reader that the statements were simply his interpretation of

disclosed facts. See Partington,

(“because the bases for the

conclusion are fully disclosed, no reasonable reader would consider the term

anything but the opinion of the author drawn from the circumstances

related”) (cleaned up). The same is true of Abramson’s July 12 substack,

which quotes from and analyzes another of Lewis’ interviews to conclude that

he is a mentally unstable insurrectionist. See Doc. 20-6 at 9-11 (Statement

20). Accordingly, the opinions contained in these articles are nonactionable. 12

12 Statements 8, 9, 11, 12, 13, 14, 20. See Doc. 16 at 4-14.

30 In some of his other publications, Abramson does not explain his

reasoning in significant detail, but nonetheless states the facts underlying his

conclusion. For example, in one tweet, Abramson states that the House

January 6 Committee should “focus” on individuals who “take[] the 5th”

during Committee proceedings, then notes that Lewis is one of several

“Trumpworld witnesses taking the 5th—meaning they think if they answer

questions honestly they may incriminate themselves[.]” Doc. 20-8 at 54

(Statement 41). This statement could be understood to imply that Lewis was

involved in some sort of criminal activity related to January 6. Nonetheless,

Abramson discloses the facts behind any such implication by (1) stating that

Lewis invoked his Fifth Amendment rights and (2) outlining his

understanding of when individuals may invoke their Fifth Amendment

rights. See

Accordingly, Abramson is not signaling that he possesses

secret information about Lewis’ criminal activities, but rather drawing

conclusions from the undisputed fact that Lewis invoked his Fifth

Amendment right to remain silent in response to inquiries from the January

6 committee.

Similarly, the June 21 substack, when it was initially posted,

prominently displayed a picture of Luelsdorff and referred to him as a

“known but unidentified participant” in the Willard room. Doc. 20-3 at 9

(Statement 2). Given that Abramson argues in the substack that the Willard

31 room was a “command center” for “the January 6 insurrection,” this assertion

could be understood to imply that Luelsdorff had some involvement in the

insurrection. See id. at 2-3. But this assertion is purely based on (1) the

photograph of Luelsdorff in the Willard room, which the plaintiffs admit is

authentic, and (2) Abramson’s belief that the other individuals in the

photograph were involved in the insurrection, which he supports with links to

other substack articles that outline the factual bases supporting this belief.

Because the context of the article makes clear that this is the only

information Abramson has on the then-unidentified “participant,” no

reasonable reader would understand the statement to imply the existence of

undisclosed facts.

Other times, Abramson did not explicitly identify the facts underlying

his conclusion, but nonetheless sufficiently disclosed them by providing links

to his source material. In Cheng, the First Circuit found that an author had

sufficiently immunized his statements by linking to the source material that

supported his assertions, thus making clear that the statements were simply

interpretations of the facts disclosed in the links. See 51 F.4th at 447 (finding

that statements were “not actionable because the Article provides a link to

the source material, which, in the context of the Article, enables readers to

draw their own conclusions ‘based on facts accessible to everyone.’”) (quoting

McKee,

). This is in line with other courts that have similarly

32 concluded that providing a link can supply the factual disclosure necessary to

confer constitutional protection. See, e.g., Rehak Creative Servs., Inc. v. Witt,

(Tex. App. 2013) (finding that “linked documents are

part of the context that must be taken into consideration” and distinguishing

providing links from cases where the speaker “referenced documents that

supposedly supported allegations . . . but did not make those documents

accessible”); Sandals Resorts Int’l v. Google, Inc.,

(N.Y. App.

Div. 2011) (“Far from suggesting that the writer knows certain facts that his

or her audience does not know, the e-mail is supported by links to the writer’s

sources.”); see also Kelley & Zansberg, 140 Characters of Defamation: The

Developing Law of Social Media Libel, 18 J. of Internet L. 1, 13 (2014) (“Since

the early years of the Internet, courts have accepted that hyperlinking to the

facts underlying a statement of opinion delivers the required factual

disclosure, allowing the reader to easily evaluate the opinion expressed.”).

“Although the process of accessing the factual bases for the opinions

involve[s] clicking onto each Web site, the dispositive point is that th[e]

factual bases [are] disclosed and [are] accessible to the reader.” See Franklin

v. Dynamic Details, Inc.,

(Cal. Ct. App. 2004). Thus,

those challenged opinions that provide links to their source material are

constitutionally protected. 13

13 Statements 1, 2, 10 (to the extent it implies that the plaintiffs were

33 For example, three of the challenged statements come from a Twitter

thread posted on July 13. See Doc. 20-8 at 15-16 (Statements 17, 18, and 19).

The contested statements assert that Lewis is “deranged” or otherwise imply

that he is mentally unstable.

But the Twitter thread opens with, and

repeatedly refers to, a link to Abramson’s July 12 substack, where he links to

and discusses in detail the podcast interview on which Abramson bases his

allegations of mental instability. See id. at 15. Thus, read in the context of

the thread in which they appear and the links provided therein, these

statements are constitutionally protected interpretations of Lewis’

interview. 14

involved in “the planning for the insurrection”), 17, 18, 19, 24, 26, 29 (to the extent it accuses 1AP members of being “insurrectionist[s]” who were “in Trump’s war room[] during Insurrection Week”), 35 (to the extent that displaying the photograph of Luelsdorff implies that he or 1AP were involved in the events of January 6), 39 (to the extent that displaying the photograph of Luelsdorff implies that he or 1AP were involved in the events of January 6). See Doc. 16 at 4-14.

14 Neither party appears to dispute that tweets should be read in the context of the thread in which they appear. Indeed, courts considering tort actions arising out of Twitter posts regularly rely on other statements in the same thread to provide the necessary context. See, e.g., Lokhova, 995 F.3d at 147; Bauer v. Athletic Media Co., No. CV 22-2062-MWF (AGRx),

, at *15 (C.D. Cal. Dec. 5, 2022); Ctr. for Med. Progress v. Planned Parenthood Fed’n of Am., 551 F. Supp.3d 320, 330 (S.D.N.Y. 2021); Ganske v. Mensch, 480 F. Supp.3d 542, 545-546 (S.D.N.Y. 2020); see also Hunt, Tortious Tweets: A Practical Guide to Applying Traditional Defamation Law to Twibel Claims,

, 597 (2013) (“Just as the statements in the Milkovich publication were considered together, tweets published together must be read in the context of one another[.]”)

34 Another challenged statement comes from the September 23 substack,

which explains how a recently released book augments Abramson’s past

reporting about the Willard room. Doc. 20-7 at 2-3. In the substack,

Abramson makes only passing reference to the plaintiffs, asserting that

Luelsdorff and Lewis were “inside the Willard Hotel war 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[.]” Id. at 4 (Statement 24). Although Abramson does

not directly state the facts underlying this assertion, he nonetheless links to

the June 30 substack, which explains in great detail how the photograph of

Luelsdorff and Lewis’ podcast interview indicate that the two were involved

in the Willard room. See Doc. 20-5 at 4-8. Additionally, that substack

discloses the basis for Abramson’s allegations about Lewis’ “private

intelligence operation” by linking to the podcast interview, where Lewis

discusses his role in “digging into” China’s involvement in the purported

election fraud and his belief that other countries may have been involved as

well. See id. at 3, 9; see also Doc. 20-10 at 45-46. Thus, Abramson’s assertions

could only be understood as his interpretation of the photograph and

interview, both of which are disclosed in the linked June 30 substack.

In sum, the majority of Abramson’s statements are immune from

liability because they are constitutionally protected interpretations of

35 adequately disclosed facts—most notably, the photograph of Luelsdorff and

Lewis’ two podcast interviews—none of which are alleged to be false.

Abramson’s interpretations of these facts are certainly incendiary, and may

even be demonstrably wrong, but they are nonetheless constitutionally

protected. Accordingly, they cannot form the basis for any of the plaintiffs’

claims.

b. Falsity

As I explained, under New Hampshire common law, defamation,

defamation by implication, and false light each require as an element that

the statement’s assertion, whether direct or implied, be false. See Gen. Star

Indem. Co. v. Beck,

,

, at *4 (D.N.H. 2018).

Moreover, where, as here, “a plaintiff seeks damages against a media

defendant for speech of public concern,” the First Amendment requires the

plaintiff to prove that the statement is false. See Phila. Newspapers, Inc. v.

Hepps,

(1986). Therefore, to state a claim under any of

their theories, the plaintiffs must “plead facts that, if proven true, would

allow a reasonable person to consider the [assertion] false.” See Martin v.

Mooney, 448 F. Supp.3d 72, 85 (D.N.H. 2020) (collecting cases). An assertion

is false if it “would have a different effect on the mind of the reader from that

which the pleaded truth would have produced.” See Masson v. New Yorker

36 Magazine, Inc.,

(1991) (quoting Sack, Libel, Slander, and

Related Problems 138 (1980)).

The plaintiffs have not satisfied their burden to plead falsity with

regards to two of the challenged statements, both of which touch on subject

matter or events not addressed in the plaintiffs’ complaint. 15 Statement 40

asserts that Lewis “said he drove Flynn, Powell, and Byrne to the White

House the night of December 18, 2020 for what Byrne has described as a

covert op[.]” Doc. 20-8 at 46. 16 But nowhere does the complaint address the

15 The plaintiffs argue that, because they asserted in their complaint that all the challenged statements are “materially false,” they have satisfied their burden of pleading falsity. See Doc. 16 at 19. In support of their argument, the plaintiffs cite to Goulmamine v. CVS Pharmacy, Inc., 138 F. Supp.3d 652, 659 (E.D. Va. 2015), which states that, in considering a motion to dismiss, “a court must accept as false any statements which the Complaint alleges to be false.” But that case does not stand for the proposition that alleging falsity in conclusory terms is sufficient. Indeed, because the plaintiff in Goulmamine affirmatively pled facts demonstrating the falsity of the challenged statements, that issue was not before the court. See id. at 657. Moreover, Goulmamine supported its statement with a citation to Chapin v. Knight- Ridder, Inc.,

(4th Cir. 1993), where the Fourth Circuit recognized that, although a court must “credit the plaintiff’s allegation of the factual falsity of a statement,” a complaint must do more than merely “couch[] its allegations of falsity in vague, conclusory terms.” Thus, the statement in Goulmamine seems to stand only for the uncontroversial notion that, at this stage, a court must accept all well-pleaded facts in a complaint as true. But equally as uncontroversial is the notion that a court need not credit “threadbare recitals of the elements of a cause of action.” See Ocasio- Hernández,

(cleaned up). Accordingly, it is insufficient for the plaintiffs to merely state in a conclusory fashion that the challenged statements are false.

16 Statement 40, as it is presented in the complaint, is an amalgamation of at least two different tweets posted several days apart. See Doc. 16 at 14.

37 falsity of this accusation. Statement 16 accuses Luelsdorff of being “under

criminal investigation or . . . arrested in the past.”

. The complaint,

however, does not address whether Luelsdorff has been investigated or

arrested, and therefore does not adequately plead that this statement is false.

Because the plaintiffs have not adequately alleged that either statement 40

or statement 16 are false, the plaintiffs’ claims for defamation, defamation by

implication, and false light must be dismissed to the extent they are based on

those statements. 17 See Tannerite Sports, LLC v. NBCUniversal News Grp.,

(2d Cir. 2017) (dismissing defamation claim where the

plaintiff did not “explain why [the challenged] statements were false” or

“point to any facts in the complaint showing that [the defendant’s] claims . . .

The first portion of the statement, pertaining to driving individuals to the White House, is nonactionable for the reasons discussed above. The second part of the statement comes from a Twitter thread that states that two unrelated individuals may have been involved in a “December Conspiracy,” but neither asserts nor implies that the plaintiffs were involved in that conspiracy. See Doc. 20-8 at 53-54. Thus, even if the complaint adequately alleged falsity, that portion of the statement would not be actionable because it does not defame Lewis or any of the other plaintiffs. See Duchesnaye,

(to be actionable, court must determine that “the language in question could reasonably have been read to defame the plaintiff”); see also Restatement (Second) of Torts § 652E.

17 To be clear, I make no finding that either statement is true. My conclusion is based purely on the sufficiency of the allegations in the complaint, with each non-conclusory allegation accepted as true. See Clark v. Viacom Int’l Inc.,

(6th Cir. 2015) (“Observing that a complaint has failed to allege that a statement is false is not the same as ruling that the statement is objectively true.”).

38 were false”); see also Veilleux,

(“those statements that we

rejected because plaintiffs failed to establish that they were materially false

cannot support a false light claim any more than they can a defamation

claim.”).

c. Ac tio nab le Statements

What remains are a handful of actionable statements that make

allegedly false assertions about the plaintiffs without fully disclosing their

supporting facts. The statements fall into three broad categories: those that

do not provide any links or factual support whatsoever; those that provide

only a link to the homepage of Abramson’s substack; and those that provide

links to sources that do not pertain to the statements’ assertions. I discuss

each category in turn.

Statement 34, the lone statement in the first category, was posted on

Twitter in response to another user’s tweet about the Willard room. Doc. 20-8

at 37. The tweet reads:

There were *many* January 6 war rooms inside the Willard, e.g.:

1 Trump Legal 2 1st Amendment Praetorian/Team Kraken 3 Team Stone 4 Team Bannon (Stockton/Lawrence) 5 March for Trump

And there’s evidence of the Proud Boys and Women for America First having a presence there.

39

Because neither the tweet nor its thread provides any sources or factual

support for its assertion, the statement can be read to suggest that 1AP’s

involvement in a “January 6 war room[]” is itself a verifiable fact. 18 See

Abramson argues that he should not be held liable for this tweet

because it simply asserts “that 1AP was present in the Willard Hotel on

January 6,” which the plaintiffs do not allege to be false. Doc. 20-1 at 15. The

statement, however, could be understood to assert much more. Rather than

merely stating that 1AP was present at the Willard Hotel, the tweet accuses

1AP of having a “war room[] inside the Willard.” Doc. 20-8 at 37. The term

“war room,” as it was regularly used by Abramson and others in the media,

imputes involvement in the planning and execution of the events of January

6. See Doc. 20-3 at 2; Doc. 20-14 at 5. Even a reader unfamiliar with this

specific use of “war room” could plausibly understand the phrase, when used

in reference to January 6, to connote some sort of strategic involvement in the

events of that day. Thus, a reasonable reader could understand the tweet to

assert that 1AP was involved in coordinating the attack on the Capitol or

18 The contested statement appears in the record next to another tweet, with the latter linking to Abramson’s June 30 substack. See Doc. 20-8 at 37- 38. However, it is not clear from the record whether the two tweets were part of the same thread or otherwise related. It could be argued that, if the statement was in a thread that linked to the June 30 substack, this would provide adequate disclosure. But, because I must construe all reasonable inferences from the facts in favor of the plaintiffs, I assume that the link was provided at a different time and in a different thread.

40 other attempts to overturn the results of the election—an assertion that the

plaintiffs vehemently deny. The statement therefore survives the motion to

dismiss.

Two of Abramson’s statements are actionable because they support

their assertions only by providing a link to the homepage of Abramson’s

substack. Statement 4 appears in a June 26 Twitter thread about the Willard

room, and states:

The Holy Grail is placing dangerous far-right domestic-extremist militants inside Trump’s Willard Hotel command center on Insurrection Day. By the end of next week—based on what PROOF will publish and what others are working on—the Grail will have been both found and made public.

Slow and steady is still acceptable for now—despite the ongoing emergency of a domestic insurgency—because PROOF and some talented citizen journalists online are literally six months to a year ahead of major media, the FBI, and Congress re: investigating insurrectionist kingpins.

That said, it must be universally understood that people like Michael Flynn and Sidney Powell and Robert Patrick Lewis and Donald Trump are legitimately dangerous domestic insurgents. Everywhere they go and everywhere they speak, they expand a clear and present danger to America.

Doc. 20-8 at 2.

Classifying Lewis as a “domestic insurgent[]” while discussing the

January 6 “domestic insurgency” could plausibly be understood as an

assertion that Lewis had some sort of involvement in the January 6 attack on

the Capitol. Thus, the statement is capable of defamatory meaning.

41 The only source Abramson provides to support this assertion is a link to

the homepage of his substack, which Abramson argues sufficiently discloses

the facts underlying his conclusion. See

But whether the homepage of

Abramson’s substack provided adequate disclosure turns on facts not

presently available to me at this early stage, such as the appearance of the

substack’s homepage and the articles featured on it at that time. Based on

the materials provided, I cannot determine whether Abramson’s substack

contained any facts about Lewis at the time this tweet was posted. Indeed, it

appears from the present record that the earliest substack post about Lewis

was made on June 30—four days after Statement 4 was posted. See Doc. 20-5

at 2 (June 30 substack); see also Doc. 20-3 at 9 (updated June 21 substack

with a link to the June 30 substack). In any event, unlike most of his other

statements, Abramson’s tweet teases that he is in possession of information

not available to the reader by stating that the “Holy Grail” will be “made

public” in the coming days. Thus, based on the present record, I cannot

conclude that the tweet provides the sort of disclosure required to confer

constitutional protection.

Statement 25 is actionable for similar reasons. That statement was

made in response to another Twitter user who, in discussing the Willard “war

room,” said that “the term ‘war room’ is hyperbolic.” Doc. 20-8 at 18.

Abramson replied:

42 This is why sometimes—not always—going straight to the source is valuable. I reported that the Willard was a ‘war room’ because two of the participants, domestic extremists Joe Oltmann and Robert Patrick Lewis, *called it that* in videos. Now this guy implies I devised the term.

Classifying Lewis as a “participant[]” in the Willard “war room” is

capable of defamatory meaning. 19 Lewis denies that he participated in any

“war room” or was otherwise involved in the January 6 attack on the Capitol.

Doc. 16 at 20, 24. Yet the term “war room,” as I have explained, could be

understood to impute involvement in the planning and execution of the

events of January 6. Thus, a reasonable reader could understand the tweet to

falsely assert that Lewis was involved in coordinating an insurrection.

Although Abramson provides a link to his substack homepage later in

the Twitter thread, I cannot conclude at the present stage that this link

provided the sort of disclosure necessary to confer constitutional protection.

To be sure, when this tweet was posted on October 20, 2021, Abramson’s

substack would have included a handful of articles discussing Lewis’ alleged

involvement in the Willard room. See, e.g., Doc. 20-5 at 2; Doc. 20-6 at 2. But

I cannot determine whether those articles would have been readily available

to readers via Abramson’s substack homepage, or simply buried amongst

19 As I explained above, the portion of the tweet that calls Lewis a “domestic extremist” is rhetorical hyperbole and therefore cannot form the basis for liability. See supra note 11; see also Cheng, 51 F.4th at 446.

43 dozens, if not hundreds, of immaterial substack articles. Because I cannot, at

the present stage, determine whether the link to the substack homepage

adequately disclosed the facts on which Abramson bases his assertion, I

decline to dismiss Statements 4 and 25.

The remaining actionable statements purport to provide direct links to

their sources but, because the sources bear no connection to Abramson’s

assertions, nonetheless could leave the reader with the impression that the

assertions are based on undisclosed facts. Cf. Garrett v. Tandy Corp.,

, 104-105 (1st Cir. 2002); Bourne v. Arruda, 10-cv-393-LM,

, at *4 (D.N.H. June 10, 2011) (“Where, however, an average reader

or listener could reasonably understand the statement to be . . . based upon

undisclosed facts, ‘the issue may properly be left to the jury’s

determination.’”) (quoting Pease v. Tel. Publ’g Co., Inc.,

(1981)). In other words, because there is no “logical nexus” between the facts

disclosed and the challenged assertions, a reasonable reader could

understand the assertions to be statements of objective fact based on

undisclosed facts, as opposed to Abramson’s interpretations of the facts

disclosed. Cf. Yohe,

.

For example, Statement 37 is comprised of two tweets, each of which

links to and discusses a Mother Jones article. The first tweet states:

44 Mother Jones recently reported that a subordinate of Robert Patrick Lewis in 1AP (the First Amendment Praetorians), Michael Kenny, issued a death threat to a House January 6 Committee witness that he (Kenny) said was made on behalf of 1AP leadership.

Doc. 20-8 at 39-40. A few weeks later, Abramson tweeted:

If you want to get a better sense of the organization Robert Patrick Lewis leads, Mother Jones reported this spring on 1AP allegedly threatening to kill a federal witness who had spoken to the House January 6 Committee.

.

Although the Mother Jones article discusses the alleged threat and

Kenny’s ties to 1AP, it does not assert that Kenny said the threat was “made

on behalf of 1AP leadership.” To the contrary, the article states that Kenny

claims he did not threaten the witness. Doc. 20-13 at 3. Nor does the article

report that 1AP, as an organization, was involved in the alleged threat. A

reader therefore could be left with the impression that Abramson has

information about 1AP’s involvement in the alleged threat that is not

disclosed in the Mother Jones article, and therefore could understand

Abramson to be making a factual assertion based on undisclosed, defamatory

facts.

Statement 38 is actionable for similar reasons. That statement appears

in a tweet from Abramson, which reads:

“1AP members don’t appear to have stormed the Capitol, but at least one operative—Geoffrey Flohr—circled it as the attack was

45 underway, talking covertly via an earpiece. Another—Philip Luelsdorff—observed from a war room led by Giuliani and Eastman.”

Doc. 20-8 at 49 (quotation marks in original). The tweet appears to be a

misquote from a third-party article linked in the tweet. 20 Yet neither

Abramson nor the linked article provide any basis for the allegation. 21 The

statement thus could be understood as an assertion of fact rather than an

opinion.

As the plaintiffs allege, this assertion is capable of defamatory

meaning. The plaintiffs allege that Luelsdorff was only in the Willard room

20 The text from the linked article reads:

The members of the 1st Amendment Praetorian do not appear to have stormed the Capitol like the Proud Boys and the Oath Keepers, but at least one of its operatives, Geoffrey Flohr, circled the Capitol as the attack was underway talking covertly with an earpiece.

While Flohr walked around the Capitol seemingly relaying information, another member of the 1st Amendment Praetorian, Philip Luelsdorff, was observing proceedings in the Trump ‘war room’ led by Giuliani and then Trump lawyer John Eastman at the Willard hotel.

Doc. 20-14 at 5.

21 The record presents the challenged statement next to another tweet that links to the June 30 substack, although it is unclear from the record provided whether these tweets appear in the same or different threads. See Doc. 20-8 at 49-50. Because I must construe all reasonable inferences in favor of the plaintiffs at this stage, I assume that the two tweets were part of different threads and therefore do not consider whether the link to the June 30 substack in the latter tweet provides adequate disclosure of underlying facts. See supra note 18.

46 for “less than a minute” before he was “immediately asked to leave.” Doc. 16

at 20. But stating that Luelsdorff “observed” the attack on the Capitol from

the Willard room could be understood to mean that Luelsdorff was in the

Willard room for a substantial amount of time. If understood in this way, the

statement is capable of defamatory meaning because it associates Luelsdorff

with the events of January 6, as well as the allegedly criminal activities of

the Willard “war room,” and could even be understood to imply support for

those events.

Abramson argues that he cannot be held liable for this statement

because it is “simply a quote from a Guardian article.” Doc. 20-1 at 16.

However, “one who repeats . . . defamatory matter is subject to liability as if

he had originally published it.” See Restatement (Second) of Torts § 578; see

also Gray,

(holding a defendant liable for publishing the

defamatory statements of a third party). Accordingly, courts have found that

a defendant may be liable where he “not only links to previously published

material, but also repeats the allegedly defamatory statements.” See

Brimelow,

at *7 (collecting cases). Thus, that Abramson

was quoting a third-party article does not immunize him from liability.

Statements 5 and 6 both rely on the June 28 substack for factual

support. The June 28 substack largely focused on evidence of President

Trump’s alleged contact with various “insurrectionist leaders” on January 6.

47 Doc. 20-4 at 2-3. However, Abramson made brief mention of 1AP in the

substack, noting:

It's become clear, based on emerging evidence produced by [open source intelligence] digital research, that January 6 was coordinated by four entities—the White House, Stop the Steal, InfoWars, and the Proud Boys—with the Oath Keepers running security for Stop the Steal, the 1st Amendment Praetorians (1AP) acting as security for top agents of Team Trump, members of Trump’s historically politicized Secret Service acting as liaisons between Team Trump and the insurrectionist and militant groups present in DC in the first week of January, and all of this seditious activity centering around one location in Washington: the Willard InterContinental Hotel near Freedom Plaza.

Charging 1AP with “seditious activity” goes beyond mere rhetorical

hyperbole, particularly where, as here, it is used in conjunction with the

events of January 6, which many have described as seditious. Thus, read in

context, the tweet could be understood to assert that 1AP was involved in or

otherwise supportive of the attack on the Capitol, and is therefore capable of

defamatory meaning.

Abramson argues that any assertion of “seditious activity” is simply a

statement of opinion based on facts disclosed in the remainder of the June 28

substack. 22 Doc. 20-1 at 10-11. But 1AP is not discussed anywhere else in

22 Abramson also argues that the plaintiffs have not adequately alleged that the statement is false because they admit that they were providing security on January 6 to unidentified individuals. Doc. 20-1 at 10. Although Abramson is correct that the plaintiffs have not alleged that it is false that they were “acting as security for top agents of Team Trump,” that is not the

48 either the substack or its linked material. Thus, a reasonable reader would

not understand Abramson’s statement to be a mere interpretation of

available facts about 1AP, but rather as a statement of fact based on

knowledge that he, but not the reader, possesses. Because Abramson does not

provide sufficient factual disclosure for his assertion, his argument that the

assertion is simply a matter of protected opinion is unavailing.

Statement 5, which links to the June 28 substack for support, also fails

to provide sufficient disclosure for similar reasons. Statement 5 comes from a

Twitter thread announcing the release of the June 28 substack. The

challenged tweet reads:

Mountains of evidence—all compiled by PROOF, with full sourcing—now establishes that Insurrection Day was the work of coordination between the White House, Stop the Steal, InfoWars and the Proud Boys, with the Oath Keepers, Three Percenters, QAnoners and 1AP in support roles.

Doc. 20-8 at 4.

This tweet accuses 1AP of playing a “support role[]” in an

“[i]nsurrection,” and is therefore capable of defamatory meaning. Although

the Twitter thread links to the June 28 substack and a few other sources,

defamatory portion of the statement. Doc. 20-4 at 2-3. Rather, it is the assertion that the plaintiffs were involved in “seditious activity” that potentially defames the plaintiffs.

49 none of the links provide facts about 1AP and therefore cannot immunize

Abramson’s statements. 23

To summarize, Statements 4, 5, 6, 25, 34, 37, and 38 are each allegedly

false assertions of fact that are capable of defamatory meaning, and therefore

actionable. Because the plaintiffs’ theory is that each of these statements is

false, the statements do not support a claim for defamation by implication,

which requires a true statement. See Howard,

. Thus, there

are no actionable statements that support a claim for defamation by

implication and that claim (Count II) must be dismissed. The claims for

defamation (Count I) and false light (Count III) may proceed as to those

actionable statements only. 24

23 In addition to the June 28 substack, the thread also links to (1) Abramson’s substack homepage and (2) the June 21 substack. Doc. 20-8 at 6- 7. As I have explained, the link to the homepage is largely irrelevant at this stage of proceedings given the lack of information about the appearance and substance of the homepage. The link to the June 21 substack is also largely irrelevant. Although that substack was eventually updated to contain more information about 1AP, it appears from the record that this update did not occur until June 30—two days after Statement 5 was posted. See Doc. 20-3 at 9 (providing link to June 30 substack). Thus, when the tweet was posted on June 28, the June 21 substack would not have included any facts about 1AP that a reader could understand as supporting Abramson’s statement.

24 Abramson also argues that the defamation claims should be dismissed because the plaintiffs are public figures and their complaint fails to “allege sufficient facts to plausibly support a clear and convincing finding of actual malice.” Doc. 20-1 at 16. The plaintiffs assert that they are private figures, and therefore need not prove actual malice. Doc. 22 at 18. Whether a plaintiff is a public figure presents a legal question for the court, and therefore may be resolved on the pleadings. See Mandel v. Bos. Phoenix, Inc.,

,

50 IV. CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss (Doc. 20) is

granted in part and denied in part. Counts II (defamation by implication) and

IV (conspiracy) are dismissed for failure to state a claim. Counts I and III

may proceed to the extent they are premised on Statements 4, 5, 6, 25, 34, 37,

and 38, as identified in the plaintiffs’ complaint (Doc. 16).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

May 9, 2023

cc: Counsel of record

204 (1st Cir. 2006). Nonetheless, because the public figure determination is “heavily dependent on the underlying factual record,” it is often better practice to “demand[] more detailed factual development” where the relevant facts are thin or otherwise inconclusive. See id. at 204, 207. Such is the case here. The complaint alleges that the plaintiffs merely provided neutral security services and did not attempt to influence the events of January 6. See Trotter,

(stating that, to be considered a public figure, “the plaintiff must have more than a trivial or tangential role in the controversy”). Although documents incorporated into the complaint indicate that Lewis gave two podcast interviews about the events of January 6, it is not clear that this alone would constitute the sort of extensive involvement in a public controversy that would qualify an individual as a public figure. See Gertz,

(noting that “the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation” is an important factor in the public figure determination). Given the limited and highly contested facts available to me at this early stage of the proceedings, I defer my determination of whether the plaintiffs are public figures until there has been further factual development and decline to dismiss the defamation claims on that basis.

51 Lew is et al. v. Abramso n Case No. 22-cv-126-PB, Opinion No.

APPENDIX 25

A. Statements by Alleged Co -Co nspirato rs

No . Statement So urc e “in ancient Rome, the elite Praetorian Guard kept Doc. 16 overthrowing the emperors they were assigned to protect. In at 4 3 DC this January, seems the ‘1st Amendment Praetorians’ had similar ambitions” “Still don’t think 1AP is scary? Read RPL’s Tweet from June Doc. 16 28 calling on ‘Patriots’ to ‘take back and keep this Republic’ at 5 7 by turning into ‘Old Testament, full wrath of God, destruction of their house and salt the earth beneath them Christians.’ Hope FBI is watching July 4th” “Expect to learn more about the son of Russian exile Doc. 16 Baroness Rida von Luelsdorff who was in the Willard ‘war at 8 15 room’ with Giuliani on 1/6, as a representative and member of Flynn’s QAnon militia group--1st Amendment Praetorian led by Robert Patrick Lewis :)” “General Flynn played a significant role in the insurrection Doc. 16 operation. ‘Flynn Org’ was heavily involved in the at 9 ‘legal/propaganda’ part of the op in the months leading up to 21 1/6 …‘Flynn Org’ consists of a large cast of high-and low- profile characters Flynn’s recruited to achieve his goals. This story will be told w/ a focus on a group recruited in

25 Where possible, this appendix displays screenshots of the challenged statements as they appear in the record. I included some of the context surrounding each statement and highlighted the challenged language. See Riley, 292 F.3d at 291 (endorsing the “helpful practice of quoting some of the text surrounding the specific language cited in [the plaintiff’s] complaint” and “indicat[ing] in bold” the challenged language). Because the statements by Abramson’s alleged co-conspirators are not in the record, I rely solely on the statements as they appear in the complaint. Where the complaint rephrases statements by Abramson, I rely on the statements in the complaint as identifying implications from the relevant publication. See supra note 5. Accordingly, rephrased statements are reproduced here as they appear in the complaint.

52 mid-Nov 2020 to conduct his dirty work: 1st Amendment Praetorian (1AP), led by Robert Patrick Lewis” “Journalists, media and federal law enforcement need to Doc. 16 Investigate [arrow icon] 1st Amendment Praetorian [arrow at 9 22 icon] and their role in the 1/6 insurrection. Who runs 1AP? *Robert Patrick Lewis and *Phillip Luelsdorff” “John Eastman mapped out a 6 point ([thumbtack icon] 1) Doc. 16 path for VP Pence to take to overturn the election, defy the at 10 23 will of the people and overthrow the government. Let’s remind ourselves of where John Eastman was on January 6th. And who he was with … 1AP’s Luelsdorff” “Oath Keepers and 1st Amendment Praetorian were Doc. 16 standing by with weapons on Jan. 6th. They were at 11 27 coordinating. 1AP takes ‘orders’ from Mike Flynn. @January6thCmte” “Someone needs to tell the Oath Keepers, Proud Boys, and Doc. 16 28 1AP that ‘we're not racist’ is not a good defense for at 11 trespassing, assault, and sedition” “Combine Raiklin’s background/access with that of 1AP’s Doc. 16 Phillip Luelsdorff whose mom’s backstory reads like that of at 11 30 a Russian spy’s, and one wonders... Why does Flynn surround himself with so many Russia-friendly operatives?” “Flynn’s militia, 1st Amendment Praetorian, had a member Doc. 16 31 on Giuliani’s team (Phillip Luelsdorff)” at 12 “1AP was inside the Capitol. They were hired by Flynn. Doc. 16 Oath Keepers were inside the Capitol. They were hired by at 12 32 Roger Stone. Flynn and Stone have deniability. They say, ‘I didn’t hire them to do THAT’” “In a tweet telegraphing the attack on the Capitol, the Doc. 16 official Twitter account of the 1AP warned on January 4, at 12 33 2021: ‘There may be some young National Guard Captains facing some very, very tough choices in the next 48 hours’” “1AP … cheered on the overthrow of the USG in realtime on Doc. 16 36 Jan 6th” at 13

53 B. Co nstitutio nally Pro tec ted Op inio ns

No . Statement So urc e Lewis and 1AP were among “Trump’s insurrectionists” Doc. 16 1 at 4 Doc. 20-3 at 9

2

Doc. 20-5 at 3

8

54 Doc. 20-5 at 5

9

Doc. 20-8 at 8

10

55 Doc. 20-5 at 7

11

Doc. 20-5 at 8-9

12

Doc. 20-5 at 10

13

56 Doc. 20-5 at 11-12

14

57 Doc. 20-8 at 16

17

58 Doc. 20-8 at 15

18

59 Doc. 20-8 at 16

19

Doc. 20-6 at 10

20

60 Doc. 20-7 at 4

24

Doc. 20-8 at 27

26

61 Doc. 20-8 at 36

29

62 Doc. 20-8 at 38

35

Doc. 20-8 at 50

39

63 Doc. 20-8 at 54 41

64 C. Statements No t Alleged to be False

No . Statement So urc e Doc. 20-8 at 14

16

Lewis “drove Flynn, Powell, and Byrne to the White House Doc. 16 on December 18, 2020 for a coupplotting meeting” and at 14 participated in a “covert operation” and “potentially 40 treasonous ‘December Conspiracy’—a December 2020 Trumpist plot to use the US Armed Forces to end American democracy”

65 D. Ac tio nab le Statements

No . Statement So urc e Doc. 20-8 at 2

4

66 Doc. 20-8 at 4

5

Doc. 20-4 at 2-3

6

67 Doc. 20-8 at 18

25

68 Doc. 20-8 at 37

34

69 Doc. 20-8 at 39-40, 49

37

70 Doc. 20-8 at 49

38

71