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West Virginia E-Filing Notice CC-33-2021-C-54 Judge: Debra McLaughlin To: Eric S. Black [email protected] NOTICE OF FILING IN THE CIRCUIT COURT OF MORGAN COUNTY, WEST VIRGINIA Peter Brimelow v. Theodore Stein CC-33-2021-C-54 The following order - motion was FILED on 1/13/2022 8:56:46 AM Notice Date: 1/13/2022 8:56:46 AM Melanie Shambaugh CLERK OF THE CIRCUIT COURT Morgan County 77 Fairfax St Rm 302 BERKELEY SPRINGS, WV 25411 (304) 258-8554 [email protected] E-FILED | 1/13/2022 8:56 AM /s/ Debra McLaughlin CC-33-2021-C-54 Circuit Court Judge Morgan County Circuit Clerk Ref. Code: 22WPFK4KX Melanie Shambaugh In the Circuit Court of Morgan County, West Virginia Peter Brimelow, ) VDARE Foundation, Inc., ) Plaintiffs, ) ) vs.) ) Case No. CC-33-2021-C-54 ) Theodore Stein, ) Defendant ) ) Order Denying Motion to Dismiss This matter came before the Court on this 13th day of January 2022, upon the Plaintiff’s Complaint filed with the Court in this matter on the 19th day of August, 2021; upon the Defendant having filed a Rule 12(b)(6) Motion to Dismiss Complaint on the 27th day of September, 2021; upon the Plaintiffs having filed a Response to Defendant’s Rule 12(b)(6) Motion to Dismiss Complaint on the 12th day of October, 2021; upon the Defendant having filed a Reply In Support of Rule 12(b)(6) Motion to Dismiss Complaint on the 25th day of October, 2021. The Court notes that it has conducted a full and complete review of the record in this matter and has considered the pleadings and responses filed by the parties. After carefully considering the above, this matter is now ripe for a decision by this Court. Based upon the above, it is hereby ORDERED and ADJUDGED that Defendant’s Rule 12(b)(6) Motion to Dismiss Complaint shall be, and hereby is, DENIED. In reaching its decision, the Court makes the following FINDINGS OF FACT AND CONCLUSIONS OF LAW: FINDINGS OF FACT The instant defamation civil action is centered on two libelous statements Defendant Stein made over Twitter, which accused Plaintiffs of organizing an armed counter-protest to overwhelm the Black Lives Matter Rally in Berkeley Springs, West Virginia on August 21, 2020. Defendant Stein was a participant in the Black Lives Matter Rally. Complaint ¶¶18-20. The day before Defendant Stein joined in the Black Lives Matter Rally, he had read in the local newspaper (The Morgan Messenger) that a local motorcycle club known as the “Mountaineer Warrior Alliance” was organizing the counter-protest. Complaint ¶¶15, 19-22. On the day of the Black Lives Matter Rally, Plaintiff alleges he walked up to the Berkeley Springs Castle and was informed by the people he met there that neither VDARE, nor Mr. Brimelow (the Plaintiffs in this lawsuit) had had anything to do with organizing the counter-protest. Complaint ¶49(b). Plaintiff alleges Defendant Stein harbors a particular animosity against Plaintiffs as perceived ideological enemies. Complaint ¶49(e). Plaintiff has alleged that, despite knowing that the charge was false, on August 22, 2020, Defendant Stein tweeted the following: A racist org (@vdare) bought a literal castle in my town. They organized this violent counter protest to locals having a BLM vigil in the park. Biker gang. A militia. And hundreds of armed racists. Never happened before VDARE. Complaint ¶23. Plaintiff alleges that two days after receiving the message from Defendant Stein on August 22nd, VDARE posted a story to its website about the Black Lives Matter Rally entitled “Patriots Rout Black Lives Matter in Berkeley Springs WV!.” Complaint ¶25. In that article, VDARE referenced Defendant Stein’s August 22nd Tweet and again specifically denied organizing the counter-protest of the Black Lives Matter Rally. Complaint ¶¶25-27. Defendant Stein read this further disavowal by VDARE on or about August 24, 2020. Complaint ¶¶28-29. Plaintiff alleges that, on March 19, 2021, Defendant Stein (following Plaintiff Brimelow’s Twitter feed) responded to a Tweet by Mr. Brimelow with a Tweet of his own, which repeated in substance the false claim he had made earlier: ...BTW, the whole town knows it was you who brought the racists with guns in. You might end up getting sued out of existence even without those standards of truth (lol) you long for. Complaint at ¶31. On May 20, 2021, Plaintiffs, though counsel, emailed Defendant Stein a letter requesting a retraction of his false allegations. Complaint ¶34. Defendant Stein received Plaintiffs’ letter requesting a retraction. On May 24, 2021 Defendant Stein emailed Plaintiff’s counsel, wherein he stated: “...I am still sorting out my legal team. I have never been threatened with a lawsuit before. Once it is determined who will represent me, they will reach out. My father is a law professor. Do you mind if he gives you a call to ask some clarifying questions?”Complaint ¶¶35-37. Defendant Stein, however, failed and refused to ever issue any retraction whatsoever. Complaint ¶¶38-39. Plaintiffs therefore filed this complaint on August 19, 2021. Defendant Stein has filed a pre-answer motion to dismiss under West Virginia Rule of Civil Procedure Rule 12(b)(6). In doing so, Defendant Stein has either misstated or avoided altogether the facts that are actually alleged by Plaintiffs, as detailed below. ARGUMENT Under West Virginia Rule of Civil Procedure Rule 12(b)(6), all facts pled by the non-moving party are to be deemed true; indeed, “The complaint is to be construed in the light most favorable to the plaintiff.” Price v. Halstead, 177 W. Va. 592, 594, 355 S.E.2d 380, 383 (1987); see also, Highmark v. Jamie, 221 W. Va. 487, 492 (2007). Furthermore, although the standard for dismissal under the analogous rule of FRCP 12 was amended some years back to that of “plausibility,” West Virginia law has not adopted the "plausibility" standard set forth in Twombly v Bell Atlantic, 550 US 544 (2007). Hoover v. Moran, 222 W.Va. 112, 116 n.3, 662 S.E.2d 711, 715 n.3 (2008); Highmark West Virginia, Inc. v. Jamie, supra. n.4. Accordingly, the older Conley standard remains the controlling law in West Virginia. See Syl. Pt. 2, Roth v. DeFeliceCare, Inc., 226 W.Va. 214, 700 S.E.2d 183 (2010) (setting forth the "no set of facts" formulation for purposes of evaluating motions to dismiss); Syl. Pt. 2, Burch v. Nedpower Mount Storm, LLC, 220 W.Va. 443, 647 S.E.2d 879 (2007) (quoting syllabus point three of Copley for the standard for evaluating motions for judgment on the pleadings). Therefore, a court may grant a motion for judgment on the pleadings only if it appears beyond doubt that the nonmoving party can prove no set of facts in support of his or her claim or defense. Copley v. Mingo County Board of Education, 195 W.Va. 480, 484, 466 S.E.2d 139, 143 (1995). Finally, although Defendant Stein proffers authority for the proposition that defamation is a cause of action that is traditionally disfavored by the courts (viz. Long v. Egnor, 176 W.Va. 628, 635 (1986)), it bears noting that a motion to dismiss is itself traditionally disfavored, e.g. “motions to dismiss are generally viewed with disfavor because the complaint is to be construed in the light most favorable to the plaintiff and its allegations are to be taken as true.” Fass v. Nowsco Well Service, Ltd., 177 W.Va. 50, 51 (1986), citing to Sticklen v. Kittle, 168 W.Va. 147, 163-64, 287 S.E.2d 148, 157 (1981); Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 718, 246 S.E.2d 907, 920 (1978). The Court finds that while the actual malice standard applies, when viewing the case in the light most favorable to the Plaintiff, that the Plaintiff has adequately set forth a prima facie claim of defamation for both Counts. A. Plaintiff is a limited purpose public figure because he engaged in debate over the issues surrounding the counter protest. There are three recognized categories of public figures: (1) involuntary public figures, who become public figures through no purposeful action of their own; (2) all- purpose public figures, who achieve such pervasive fame or notoriety that they become public figures for all purposes and in all contexts; and (3) limited-purpose public figures, who voluntarily inject themselves into a particular public controversy and thereby become public figures for a limited range of issues. Wilson v. Daily Gazette Co., 214 W.Va. 208, 214, 588 S.E.2d 197, 203 (2003). Further, public figures are persons not occupying a government office but who “have assumed roles of especial prominence in the affairs of society . . . . [they] have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.” Williams, 458 F.Supp.3d at 476-77. Public figures “have voluntarily exposed themselves to increased risk of injury from defamatory falsehood.” Suriano, 198 W.Va. at 348, 480 S.E.2d at 557. Whether a plaintiff in a defamation action is a public figure is a question of law for the trial court and can be decided by the court as a matter of law. Wilson, 214 W.Va. at 213-14, 588 S.E.2d at 202-03. The Court notes that in the current case, Plaintiffs claim that they can only be classified as “private figures.” The Court finds that the pleadings in this case and the VDARE website demonstrate that Plaintiffs are limited purpose public figures regarding the Black Lives Matter rally/counter-protest at issue. A libel plaintiff is a limited purpose public figure if the defendant proves the following: (1) the plaintiff voluntarily engaged in significant efforts to influence a public debate—or voluntarily assumed a position that would propel him to the forefront of a public debate—on a matter of public concern; (2) the public debate or controversy and the plaintiff’s involvement in it existed prior to the publication of the allegedly libelous statement; and (3) the plaintiff had reasonable access to channels of communication that would permit him to make an effective response to the defamatory statement in question. Wilson v. Daily Gazette Co., 214 W.Va. 208, 217, 588 S.E.2d 197, 206 (2003). The Court finds that the three prongs of the test are satisfied for the following reasons: (1) In their Complaint, Plaintiffs pled that VDARE’s headquarters are located at the Berkeley Springs Castle in Berkeley Springs, West Virginia, where the Black Lives Matter rally/counter-protest at issue took place (Compl. ¶ 49(b)); (2) on August 24, 2020, Plaintiff VDARE posted an article on its website, entitled “Patriots Rout Black Lives Matter in Berkeley Springs, WV!” (Compl. ¶ 25); (3) in the article, VDARE wrote about the Black Lives Matter Rally/counter-protest and congratulated the counter- protesters for not “sit[ting] by as Marxist insurgents took over the town,” and stated that their efforts meant “Anarcho-Tyranny has been routed in Berkeley Springs, WV!” (see Compl. ¶¶ 26-27; seealso article); (4) VDARE admitted in the article that it had sent a video crew to the Black Lives Matter rally/counter-protest to capture the event and gather interviews (the video created by VDARE of the rally/counter-protest is imbedded within the article); and (5) both Plaintiff VDARE and Plaintiff Brimelow tweeted publicly about the rally/counter-protest on Twitter. Based on the above, the Court finds that Plaintiffs voluntarily engaged in significant efforts to influence the public debate regarding the Black Lives Matter rally/counter-protest or voluntarily assumed a position that would propel them to the forefront of that public debate, and the Plaintiffs’ involvement in the Black Lives Matter rally/counter-protest existed prior to the publication of the alleged libelous statements by Defendant on August 22, 2020 and March 19, 2021. Moreover, the Court finds that Plaintiffs had reasonable access to channels of communication via the VDARE website and their Twitter accounts, permitting them to make an effective response to the alleged defamatory statements at issue.Because public figure status can be applied to Plaintiffs here based upon the pleadings and the public record alone, the Court finds that the actual malice standard applies. As limited purpose public figures, Plaintiffs are required to prove by clear and convincing evidence that Defendant made the alleged defamatory statements with knowledge that they were false or with reckless disregard of whether they were false or with actual malice. Suriano, 198 W.Va. at 346, 480 S.E.2d at 555; Williams, 458 F.Supp.3d at 476. “Actual malice must be proven with convincing clarity.” Dixon v. Ogden Newspapers, Inc., 187 W.Va. 120, 128, 416 S.E.2d 237, 245 (1992). However, the Court finds that at this time, viewing the evidence in the light most favorable to the Plaintiff, the Plaintiff has adequately met this burden. B. Plaintiff has adequately pled the elements of defamation to survive Defendant’s Motion to Dismiss. The issue is whether the allegation that one has organized an armed and violent counter-protest can be construed as a statement of fact or opinion. In making this determination West Virginia focuses on the verifiability of the statement: only a statement of opinion that does not contain a “provably false assertion of fact” is entitled to full constitutional protection. Syl. Pt. 4, Maynard v. Daily Gazette Co., 447 S.E.2d 293, 294 (W.Va. 1994). Defendant simply dodges this issue (preferring to divert himself with the largely irrelevant question of whether the counter-protest was racist), but the allegation is clearly capable of being proved true or false: either Plaintiff did or did not organize an armed counter-protest. The allegation is not unlike the first of the five statements at issue in Hupp v. Sasser, 200 W.Va. 791, 797 (1997), which was whether “there were numerous complaints against Mr. Hupp for his alleged abusiveness and unprofessional behavior.” Id. As the Supreme Court of Appeals of West Virginia noted, “This statement is either true or false. Either there were numerous complaints regarding Mr. Hupp or there weren't.” Id. Just so, Defendant Stein’s allegations are either true or false: either Plaintiffs did or did not organize the counter-protest, and either it was or was not violent. These allegations (which must be taken as false at this juncture) are clearly capable of objective proof, for there were numerous people who attended the counter-protest and evidence—or the absence thereof—will point to Plaintiffs as their organizer, or not. Messages or alerts either existed on Plaintiff VDARE’s website and Twitter accounts, or not. Emails from Plaintiffs to the counter-protestors exist, or not. People who showed up to counter-protest will testify to Plaintiffs’ encouragement, or not. The allegations are capable of proof, and quite easily, too. The issue here is whether the Plaintiffs organized a violent counter-protest. Whether the persons who engaged in the counter-protest were spurred on by ill motives is a quite separate question from who organized them (and for that matter, whether they were violent or not). These latter questions are quintessential facts. Thus, even conceding for the sake of argument that the accusation of racism is shielded by opinion/hyperbole, Defendant remains beset by the rest of his statements, for the questions of organization and violence are laden with fact, and under West Virginia law, only a statement free of any “provably false assertion of fact” is entitled to full constitutional protection. Maynard v. Daily Gazette Co., supra. at 294. Finally, without citing any authority whatsoever, and in defiance of the principle that only opinions free of any provably false assertion of fact are entitled to protection, Defendant makes four arguments as to why his statements qualify for “opinion” status. In the first, Defendant states that the statements were published on his private Twitter account. This argument lacks all substance: Defendant’s “private” twitter account is viewable by – and therefore published to – perhaps millions of people. See Complaint at ¶47: “The statements referenced in Paragraph 23 above were published by Defendant Stein and widely read and discussed by the public at large. Indeed, the statements referenced in Paragraph above were circulated widely and quickly, including online on Twitter.” In the second, Defendant argues that the Tweets only demonstrate the opinion that Plaintiffs “are either racists or associate with or organized racists.” But this is wholly circular reasoning: Defendant cannot say that he is entitled to the shield of opinion because he is only stating opinion. Rather, what Defendant needs to do is demonstrate that he is entitled to the shield of opinion because the allegations (all parts of them) are simply not verifiable. But this he cannot do, for the reasons set forth above. In the third, Defendant argues that the Tweets “clearly communicate the Defendant’s personal opinion that Plaintiff VDARE organized the counter-protest in his town based upon his belief that such events ‘never happened before VDARE.’” But again, no authority is provided for why this should count as saving grace for Defendant, and the law in West Virginia is that only opinions free of any provably false assertion of fact are entitled to protection. Maynard v. Daily Gazette Co., supra. Furthermore, allowing this to serve as a defense to a defendant in a defamation case would go well beyond the already formidable actual malice defense. One of the ways that reckless disregard can be demonstrated is where it is shown that a defendant “omitted facts in order to distort the truth.” Syl. 5, Dixon v. Ogden, W.Va. 416 S.E.2d 237 (1992). But under Defendant’s argument, he is free to omit as many inconvenient facts as he wants (i.e. Plaintiffs’ prior denial or The Morgan Messenger’s earlier story on August 20, 2020 – Complaint at ¶¶ 49(b) and 19-22). By selecting only the most implausible or irrelevant facts for publication and presenting these as the basis for his “opinion,” he absolves himself of liability. This is not and cannot be the law in West Virginia. In the fourth, almost as an after-thought, Defendant claims that the March 19th Tweet (Complaint at ¶31) is just the sort of “exaggerated rhetoric clearly understood by readers” to be personal opinion. Doubtless there is some exaggeration here: no one could take Defendant’s March 19th Tweet as literally meaning that each and every person in Berkeley Springs knows or believes that Mr. Brimelow organized the counter- protest. But that does not end the inquiry. The question remains: does any part of the March 19th Tweet contain a provably false assertion of fact? If so, then under Maynard v. Daily Gazette Co., supra. it is actionable. Here again, Defendant Stein is betrayed by what can only be ascribed to his own malice, for unquestionably the March 19th Tweet, despite something of a rhetorical shell, contains a hard core of factual assertion, to wit, that Mr. Brimelow organized a violent counter protest (“…it was you who brought the racist with guns in.”). C. Plaintiffs have adequately pled resulting injury from Defendant Stein’s Tweets under the notice pleading standard. The issue here is whether Plaintiffs have adequately pled any resulting injury from Defendant’s libels. The rule is that the court may dismiss only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 776 (1995) (citations omitted). West Virginia holds to a notice pleading standard: “Complaints are to be read liberally as required by the notice pleading theory underlying the West Virginia Rules of Civil Procedure.” Id. (numerous citations omitted). As such, “The primary purpose of these provisions is rooted in fair notice… Although entitlement to relief must be shown, a plaintiff is not required to set out facts upon which the claim is based.” Id. Here the Complaint alleges that “[b]y reason of the publication of the [offending statements in the August 22nd Tweet and March 19th Tweet] [Plaintiffs have] been injured in [their] good name, fame, credit, profession, and reputation, and has been held up to public ridicule, and to suffer the loss of prestige and standing in the community.” Complaint at ¶¶53, 67. Accordingly, subparts “b” and “d’ of the Wherefore Clause seek monetary damages and punitive damages. None of Defendant’s authority addresses this standard or pleadings that resemble the instant case. Howard v. Hahn, 2017 WL 778066 (S.D. W.Va. Feb. 1, 2017) and Kerr v. Marshall Univ. Bd. of Governors, 2015 WL 1405540 (S.D. W.Va. Feb. 4, 2015) are federal cases that were decided under FRCP 12 as revised post-Twombly. As stated above, West Virginia does not follow this standard. Hoover v. Moran, supra. at 116 n.3; Highmark West Virginia, Inc. v. Jamie, supra. n.4. As for Highmark West Virginia, Inc. v. Jamie, supra. it is distinguishable because in that case the pleadings were facially deficient. Specifically, the only people to whom the allegedly defamatory statements were made knew that such statements were false, resulting in no damages on the face of the pleading: "’the employees knew that the statements were and are entirely false.’ No allegations were made to the effect that the auditor's statements were communicated to anyone other than Dr. Jamie's employees. Nor did Count 9 aver why damages were incurred when the employees knew that the statements were false.” Id. at 494. Plaintiffs’ Complaint herein is simply not similarly handicapped. Defendant Stein cannot complain either that he lacks fair notice or that under no set of facts could Plaintiffs have incurred damages from his libelous assertions. On the contrary, it is abundantly clear that in late 2020 and 2021, a party could incur heavy damages by being accused of organizing violent counter-protests. Defendant Stein’s malicious and willfully false allegations are precisely the kind that tend “to harm the reputation of another [so] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Crump, 320 S.E.2d at 77. Indeed, because of the events of January 6, 2021 “numerous people had been investigated and jailed on suspicion of organizing and engaging in armed protests.” Complaint at ¶33. Defendant Stein has all the notice as to damages that he is entitled to; any further elaboration should await discovery. WHEREFORE, based upon the foregoing, it is hereby ORDERED and ADJUDGED as follows: 1. Defendant’s Rule 12(b)(6) Motion to Dismiss Complaint is hereby DENIED; 2. The Defendant be directed to answer the Plaintiffs’ Complaint as provided by the West Virginia Rules of Civil Procedure; 3. That a Scheduling Order will be entered by the Court by separate Order setting a trial date and all necessary and applicable scheduling deadlines. The Court notes the objections and exceptions to any adverse rulings contained herein. There being nothing further that remains to be done herein at this time, the Clerk shall enter the foregoing Order and send attested copies to Eric S. Black, Esquire, at his address of 380 South Washington Street, Berkeley Springs, West Virginia, 25411, and to Susan R. Snowden, Esquire at her address of 310 West Burke Street, Martinsburg, West Virginia 25401. /s/ Debra McLaughlin Circuit Court Judge 23rd Judicial Circuit Note: The electronic signature on this order can be verified using the reference code that appears in the upper-left corner of the first page. Visit www.courtswv.gov/e-file/ for more details.