United States Court of Appeals For the First Circuit

No. 22-1124

DANA CHENG; EPOCH GROUP, INC., d/b/a Epoch Media Group,

Plaintiffs, Appellants,

v.

DAN NEUMANN; MAINE PEOPLE'S ALLIANCE, d/b/a Beacon,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Christopher J. Bakes, with whom Kip Joseph Adams, Bryan Paul Sugar, Lann G. McIntyre, and Lewis Brisbois Bisgaard & Smith LLP were on brief, for appellants. John-Mark Turner, with whom Christopher Cole, Sheehan, Phinney, Bass & Green, P.A., Tracy D. Hill, and Drummond Woodsum were on brief, for appellees. Carol J. Garvan, Zachary L. Heiden, Anahita Sotoohi, and Brian Hauss on brief for American Civil Liberties Union and American Civil Liberties Union of Maine, amici curiae.

October 25, 2022 LYNCH, Circuit Judge. Dana Cheng and Epoch Group sued

Maine People's Alliance and Dan Neumann, its reporter, in the U.S.

District Court for the District of Maine. The suit asserted that

the defendants' coverage of a presentation given by Cheng on a

panel at a Windham, Maine forum co-sponsored by the Maine

Republican Party and the Christian Civic League was defamatory and

constituted false light invasion of privacy and intentional and

negligent infliction of emotional distress. The defendants moved

to dismiss, asserting First Amendment and various state-law

defenses. The district court granted the motion to dismiss in a

thoughtful opinion. See Cheng v. Neumann, No. 21-cv-00181,

(D. Me. Feb. 3, 2022). Because the plaintiffs have not

plausibly alleged defamation under First Amendment principles, we

affirm.

I.

We draw the facts from the plaintiffs' complaint,

"documents attached to or fairly incorporated into the complaint,"

"facts susceptible to judicial notice," and "concessions in

plaintiff[s'] response to the motion to dismiss." Lemelson v.

Bloomberg L.P.,

(1st Cir. 2018) (quoting Schatz v.

Republican State Leadership Comm.,

(1st Cir.

2012)).

- 2 - Dana Cheng, a New York resident, is the vice president

and co-founder of The Epoch Times, a print and online newspaper,

also in New York.

Maine People's Alliance, a Maine non-profit corporation,

publishes an online media outlet named Beacon. On June 16, 2021,

Beacon published an article written by Dan Neumann titled "Maine

GOP hosts speaker present at Jan. 6 Capitol assault" (the

"Article"). The Article stated, in relevant part:

The Maine Republican Party co-sponsored a community forum in Windham on Monday evening that included as a panelist a far-right media personality and conspiracy theorist who has said she was among the supporters of former President Donald Trump who were present at the riot at the U.S. Capitol on Jan. 6.

. . .

Dana Cheng, vice-president of the right-wing multi-language newspaper and media company Epoch Times, was invited by the Gray Republicans to brief their members about the threats posed to Americans by the Chinese government.

. . .

The day after the insurrection that left five people dead, Cheng said on a Denver radio program that she was present at the Capitol when it was breached, but was not at the front of the crowd and did not enter the building.

Cheng alleged during the radio interview that the violence that day was perpetrated by anti- fascist infiltrators -- a false refrain echoed throughout conservative media in the days after the insurrection.

- 3 - "We have got photos from our readers that there were some antifa people," she said. "They have seen a few people try to push into the building, some got into the building. They were the same people that were in the antifa movement."

Since Trump's loss to President Joe Biden, Cheng's Epoch Times has consistently questioned the election results. The news outlet is partially funded by far-right media financier Robert Mercer and has promoted anti- vaccine misinformation and an array of pro- Trump conspiracy theories such as QAnon, leading the New York Times to call the outlet a "global-scale misinformation machine."

The Article included a link to a recording of Cheng's appearance

on The Kim Monson Show, a Denver radio show and podcast. That

link provided access to the statements actually made during that

show. The Article also referred to statements made by the chair

of the Maine Republican Party regarding the Capitol assault. The

Article and a transcript of Cheng's radio appearance are attached

in their entirety as Exhibits A and B hereto.

On January 7, 2021, the day after the attack on the U.S.

Capitol, Cheng had appeared on The Kim Monson Show as a repeat

guest. When asked about the events of January 6, Cheng stated:

Yesterday I was at a rally in the morning. I went to a -- a lot of people, people, people were very peaceful relatively and then people were excited and when Trump was speaking. So later on at the Capitol, I was there but I was not on the right front, so I did not see with my own eyes what happened when some people broke into the building. I was -- most people there, to my eyes, had been very peaceful. So those on the front, I -- we have got photos

- 4 - from our readers that there's a -- there were some antifa people infiltrating in, and they have seen a few people trying to push, push into the building and some got into the building and some photos that they could see they are the same people that were in the antifa movement. We got some photos sent by readers.

So no matter who was involved, to us, we're very fully aware with the communism strategy -- and it happened in China, it happened in Hong Kong. The easiest way to ruin a movement or a protest is to lead a few people to go extreme. That's the fastest way to ruin a protest or movement. So I don't think if it's random and it's like, it's not planned. I think some people planned it. Who was involved and who tried to plot this, it's not clear yet.

Pressed by Monson on whether she could say "for sure" that anti-

fascist ("antifa") infiltrators were involved in breaching the

Capitol, Cheng replied: "We are in the process of confirming those.

And that is a familiar strategy from communists." Cheng also

stated that "it [was her] opinion that China has been deeply

involved in this election fraud."

Cheng and Epoch Group (publisher of The Epoch Times)

sued Neumann and Maine People's Alliance in federal court in Maine

under diversity jurisdiction, alleging defamation based on the

statements in the Article. Cheng also asserted the other claims

previously described.

As relief, the plaintiffs sought a retraction of the

Article in its entirety, an injunction enjoining the defendants

- 5 - "from further publication of any false, malicious, defamatory or

materially misleading comments regarding Plaintiff[s]," money

damages, punitive damages, and other relief.

The defendants moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6) and New York's anti-SLAPP statute. The

district court granted the motion. This timely appeal followed.

II.

We review a district court's grant of a motion to dismiss

a defamation suit de novo. McKee v. Cosby,

(1st

Cir. 2017); see also Bose Corp. v. Consumers Union of U.S., Inc.,

(1984) (stating general principle that, in First

Amendment cases, appellate courts have "an obligation to 'make an

independent examination of the whole record' in order to make sure

that 'the judgment does not constitute a forbidden intrusion on

the field of free expression'" (quoting New York Times Co. v.

Sullivan,

(1964))). We "accept as true the

complaint's well-pleaded factual allegations" and "draw all

reasonable inferences in favor of the non-moving party." McKee,

. We do not credit legal labels or conclusory

statements, but rather focus on the complaint's non-conclusory,

non-speculative factual allegations and ask whether they plausibly

narrate a claim for relief. Lemelson,

.

- 6 - A.

We first consider the plaintiffs' defamation claims.

"Modern defamation law is a complex mixture of common-law rules

and constitutional doctrines." McKee,

(quoting Pan

Am Sys., Inc. v. Atl. Ne. Rails & Ports, Inc.,

(1st Cir. 2015)). Here, we bypass the parties' choice-of-law

disputes as to whether Maine or New York law (including either

state's anti-SLAPP statute) applies. Rather, we look to

dispositive First Amendment principles. See Lemelson,

(taking a similar approach); Schatz,

(same).

We focus on two such principles. We have no need to

reach further First Amendment principles concerning public figures

and the pleading requirements for actual malice.

As to the first principle, where challenged statements

are published by a media defendant and involve matters of public

concern, there can be no liability unless the statements are false.

See Phila. Newspapers, Inc. v. Hepps,

(1986);

see also, e.g., Masson v. New Yorker Mag., Inc.,

(1991) (reiterating this principle); Milkovich v. Lorain J. Co.,

(1990) (same); Veilleux v. Nat'l Broad. Co.,

(1st Cir. 2000) (same). The district court correctly

held that the Article was published by media defendants and

concerned matters of public concern. See Cheng,

,

- 7 - at *4, *6.1 Such a falsity must be material, not merely a minor

inaccuracy. See Pan Am,

; Veilleux,

; see also Air Wisc. Airlines Corp. v. Hoeper,

(2014) ("A 'statement is not considered false unless it would

have a different effect on the mind of the reader from that which

the pleaded truth would have produced.'" (internal quotation marks

omitted) (quoting Masson,

)).

As to the other First Amendment principle, "a statement

of opinion relating to matters of public concern which does not

contain a provably false factual connotation . . . receive[s] full

constitutional protection," as does "imaginative expression" and

"rhetorical hyperbole." Milkovich,

(first citing

Hepps,

; and then citing Hustler Mag., Inc. v. Falwell,

(1988)); see also Pan Am,

;

Veilleux,

. "[I]f it is plain that the speaker is

expressing a subjective view, an interpretation, a theory,

conjecture, or surmise, rather than claiming to be in possession

of objectively verifiable facts, the statement is not actionable."

Gray v. St. Martin's Press, Inc.,

(1st Cir. 2000)

(alteration in original) (quoting Haynes v. Alfred A. Knopf, Inc.,

(7th Cir. 1993) (Posner, J.)). "The vaguer a

1 The plaintiffs have not developed any contrary argument on this point and so have waived any challenge to this ruling. See United States v. Valdez,

(1st Cir. 2020).

- 8 - term, or the more meanings it reasonably can convey, the less

likely it is to be actionable." Levinsky's, Inc. v. Wal-Mart

Stores, Inc.,

(1st Cir. 1997).

We conclude that the plaintiffs have failed to plausibly

allege defamation both as to the Article as a whole and as to each

of the individual challenged statements.

The plaintiffs have, on appeal, largely focused on the

statements in combination to support an allegedly defamatory

inference.2 The plaintiffs argue that all of the challenged

statements, taken together, combine to convey a defamatory

inference as to the nature of Cheng's conduct. Such an inference,

once defined, is treated like a claim for direct defamation and is

subject to the same constitutional guardrails. See White v.

Fraternal Ord. of Police,

(D.C. Cir. 1990). We

conclude that the argued inference is not plausible.

The plaintiffs do not argue that the defamatory

inference purportedly at issue is that Cheng was present at the

Capitol as a protestor rather than as a journalist. Nor do they

argue that the inference reasonably drawn by readers is that Cheng

shared similar views as the protestors and that inference is

2 The plaintiffs have not challenged the district court's conclusion that a statement regarding The Epoch Times' funding was non-actionable because it was a minor inaccuracy that was subsequently corrected. See Cheng,

, at *8 n.4.

- 9 - defamatory.3 Rather, the plaintiffs contend that the defamatory

inference at issue is that Cheng was a "full, enthusiastic, and

partisan participant in the violence of January 6, 2021" and/or

that she "was present as a violent participant in the January 6

violent assault on the Capitol." The defamatory inference on which

the plaintiffs stake their claim is that Cheng participated in the

violence on January 6.4

We reject the argument. The Article states that Cheng

was "present at [the] Jan. 6 Capitol assault" and "present at the

riot at the U.S. Capitol on Jan. 6." As discussed infra, these

statements are substantially true on their face because they

accurately place Cheng at the Capitol during the events of January

6. The passive language of these statements suggests mere

"presen[ce]" rather than active participation. Indeed, the

Article contains the explicit statement that Cheng "was not at the

front of the crowd and did not enter the [Capitol] building."

3 Cheng professed her belief in "election fraud" during her appearance on The Kim Monson Show, and the plaintiffs have not challenged as defamatory the Article's statement that The Epoch Times "has consistently questioned the [2020] election results." 4 To the extent the plaintiffs are alleging that the omission of information on Cheng's own past as a "political refugee bound for America, fleeing violence and persecution" contributes to this inference, this argument is misplaced for two reasons. First, this was not a material omission sufficient to make anything else in the Article defamatory. Second, this information was in fact conveyed by the Article, which linked to the radio interview in which Cheng discussed her past.

- 10 - Further, the photograph of Cheng in the Article shows her dressed

in business attire in what appears to be a library. Beyond that,

the Article provides a link to Cheng's own statements in the radio

appearance. Taking the Article as a whole, the argued inference

is implausible.

If considered individually, the challenged statements

are not actionable. Three of the challenged statements are not

actionable because they are substantially true. These are the

Article's headline and the statements that Cheng was "among the

supporters of former President Donald Trump who were present at

the riot at the U.S. Capitol on Jan. 6" and that she "alleged

during [her appearance on The Kim Monson Show] that the violence

that day was perpetrated by anti-fascist infiltrators."

A complaint cannot plausibly allege falsity where, as

here, materials incorporated into the complaint refute that very

assertion. "It is a well-settled rule that when a written

instrument contradicts allegations in the complaint to which it is

attached, the exhibit trumps the allegations." Clorox Co. P.R. v.

Proctor & Gamble Com. Co.,

(1st Cir. 2000) (quoting

N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend,

(7th Cir. 1998)); see also Schatz,

n.3

(similar).

The Article's headline states: "Maine GOP hosts speaker

present at Jan. 6 Capitol assault." That statement is factually

- 11 - true. Cheng made clear in her radio show appearance, a transcript

of which is attached to the complaint, that she was present at the

Capitol on January 6 when the building was breached. The

plaintiffs instead argue that the phrase "present at Jan. 6 Capitol

assault" falsely placed Cheng in the middle of the violent breach

of the building rather than merely present on the Capitol grounds.

The headline merely states that she was "present" and is not

defamatory. Indeed, both parties agree that publishers are

afforded leeway in crafting attention-grabbing headlines.

The second statement -- that Cheng was "among the

supporters of former President Donald Trump who were present at

the riot at the U.S. Capitol on Jan. 6" -- is non-actionable for

the same reasons: Cheng stated as much during the interview.5

The third statement -- that Cheng "alleged during [her

appearance on The Kim Monson Show] that the violence [on January

6] was perpetrated by anti-fascist infiltrators" -- is also

substantially true. The plaintiffs argue that Cheng did not allege

antifa involvement in the Capitol assault but rather "merely stated

that certain people that submitted information to The Epoch Times

made such claims and that the information had not been verified."

5 The complaint does not allege that the "Trump supporter" label is itself defamatory. Nor does it allege that Cheng is not a supporter of former President Trump. Rather, the complaint alleges that Cheng was not "'among the supporters of former President Donald Trump' that day." (Emphasis added.)

- 12 - Cheng's statements during the interview strongly suggest to any

reader that individuals associated with antifa were involved in

the violence of January 6. Cheng's own statements were that:

[T]hose on the front, I -- we have got photos from our readers that there's a -- there were some antifa people infiltrating in, and they have seen a few people trying to push, push into the building and some got into the building and some photos that they could see they are the same people that were in the antifa movement.

Cheng also stated that this was a "communism strategy" intended to

"ruin a movement . . . [by] lead[ing] a few people to go extreme"

and later expressed her belief in "election fraud." Pressed on

whether she could say definitively that antifa was involved, Cheng

responded that The Epoch Times was confirming the photographs and

reiterated that this was a "familiar strategy from communists."

The challenged statement does not permit an inference of falsity

because "it 'would [not] have a different effect on the mind of

the reader from that which the pleaded truth [or here, the truth

as evident from the source material] would have produced.'" Air

Wisc. Airlines Corp.,

(quoting Masson,

). The statement is substantially true.

The remaining statements are not actionable because they

are expressions of opinion and are unprovable as false. "Right-

wing," "far-right," and "conspiracy theorist" are vague,

judgement-based terms that "admit[] of numerous interpretations"

- 13 - and are not objectively provable as false.6 Levinsky's,

; see also Pan Am,

("[C]ourts are 'likely' to

stamp as 'opinion' statements involving 'expressions of personal

judgment, especially as the judgments become more vague and

subjective in character.'" (quoting Gray,

)). These

statements are also the sort of "rhetorical hyperbole," Pan Am,

, common in much political discourse.7 Further, to

the extent these opinions are based on Cheng's statements in the

radio interview (e.g., about election fraud), they are 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."

McKee,

(quoting Phantom Touring, Inc. v. Affiliated

Publ'ns,

(1st Cir. 1992)); see also id. at 61,

63-64 (finding defendant immunized from defamation liability on

6 Indeed, the complaint expresses the plaintiffs' opinion that "Beacon, and its readers, are to the extreme political left." 7 See, e.g., M. Graham, Sununu: Bolduc a 'Conspiracy Theorist Extremist;' Will Make it Harder for GOP to Win, NH Journal, https://nhjournal.com/sununu-bolduc-a-conspiracy- theorist-extremist-will-make-it-harder-for-gop-to-win (last accessed Oct. 20, 2022) (reporting that New Hampshire GOP Governor Chris Sununu described GOP Senate candidate Don Bolduc as a "conspiracy-theory extremist"); E. Bradner, G. Krieg & D. Merica, Four Takeaways from New Hampshire and Rhode Island Primaries, CNN, https://www.cnn.com/2022/09/13/politics/new-hampshire-rhode- island-primary-election-takeaways/index.html (last accessed Oct. 20, 2022) (reporting that Bolduc called Sununu a "Chinese communist sympathizer").

- 14 - this basis). Finally, to the extent that the plaintiffs allege

that the statement that Cheng is a "far-right media personality"

is defamatory based on the "media personality" label, that

statement is substantially true. The materials incorporated into

the complaint reference a number of media appearances by Cheng.

The plaintiffs argue that the statements that The Epoch

Times "has promoted anti-vaccine misinformation and . . . QAnon"

are defamatory. The Epoch Times has in fact published articles

that include discussions of theories which in the opinions of

others could be called "anti-vaccine" and/or favorable to QAnon.8

The allegedly defamatory statements are opinions which reflect

subjective judgments about the nature of The Epoch Times' coverage.

See Pan Am,

; Gray,

. Indeed, the

subjective nature of these judgments is evident from the face of

the complaint. The complaint does not dispute that The Epoch Times

covers these two topics. The complaint instead attempts to build

a defamation claim on the argument that The Epoch Times "has never

promoted anti-vaccine misinformation" and has "reported on QAnon

but [has] never promoted the organization or its theories."

(Emphasis in original.) The challenged statements are non-

actionable opinions.

8 There is no challenge to the district court's decision to take judicial notice of articles by The Epoch Times on these topics under Rule 12(b)(6), see Cheng,

, at *7, so we consider them.

- 15 - B.

On appeal, Cheng references in passing her claims for

false light invasion of privacy, intentional infliction of

emotional distress, and negligent infliction of emotional distress

but does not develop any argument as to these claims. Accordingly,

any challenge has been waived. See United States v. Valdez,

(1st Cir. 2020). The latter two claims also fail for

the independent reason that "a failed defamation claim cannot be

recycled as a tort claim for negligent or intentional infliction

of emotional distress." Shay v. Walters,

(1st

Cir. 2012).

III.

For the foregoing reasons, we affirm the dismissal of

the plaintiffs' complaint.

- 16 - EXHIBIT A

- 17 - - 18 - - 19 - EXHIBIT B

- 20 - - 21 - - 22 - - 23 - - 24 - - 25 -