by Paul Alan Levy
Our latest effort to defend the right to speak anonymously about issues of public concern brings us up against Robert F. Kennedy Jr.
Last summer, Kennedy spoke at an August 29 rally convened by the German far right to protest government restrictions aimed at corralling the COVID pandemic. Kennedy was, apparently, the third choice speaker, after appeals from a rightwing group called Querdenken to Donald Trump and Vladimir Putin went unheeded. But when this group learned that Kennedy was coming to Germany for other reasons, it issued a public invitation and he responded. The German right waxed rhapsodic about the way in which Kennedy’s presence was lending legitimacy to their activity.
The rally and his speech were widely covered in the mainstream media, which reported that his rally was heavily attended by neo-Nazis and that a variety of antisemitic and neo-Nazi factions had been involved in organizing the event. Kennedy was infuriated by this coverage of the audience to whom he had become connected by speaking at the rally. His position is that any neo-Nazis were at some other rally on the same day, and that Querdenken is a fine group unsullied by neo-Nazi or anti-Semitic ties. Our expert witness says otherwise.
Kennedy took no action against the New York Times, Wall Street Journal and others who took note of these connections. Instead, he directed his ire at what, I assume, he viewed as a defenseless target: DowneastDem, an otherwise obscure blogger on the Daily Kos who generally writes about German and Maine politics. This blogger wrote a post entitled “Anti-Vaxxer RFK JR. joins neo-Nazis in massive Berlin 'Anti-Corona' Protest,” linking in turn to an eyewitness account in a major Berlin newspaper whose sub-headline mentioned the participation of neo-Nazis (English translation here). Kennedy responded by having a lawyer post a heated comment in the form of an open letter, denying the accuracy of the blog post and demanding that it be taken down immediately.
Kennedy Pursues a Subpoena in New York
When the blogger did not take the post down, Kennedy upped the ante, calling in a large firm, Boies Schiller Flexner, to file a pre-action petition for discovery to identify Kennedy’s critic. The proceeding was filed in Kennedy’s hometown court, Westchester County, New York, despite the fact that Daily Kos, owned by California company Kos Media, cannot be subpoenaed there, and despite the fact the New York has deliberately limited the reach of its long-arm statute to preclude defamation suits against alleged defamers who do not live in New York. The petition was verified, not by Kennedy himself but by his lawyer, who swore on personal knowledge that the blog post was false, even though the lawyer had not been in Berlin and thus could not have personal knowledge of what had happened there. The local judge nevertheless authorized the issuance of a subpoena to identify DowneastDem, deciding that admissible evidence that the allegedly defamatory statements were false was not needed because under existing precedents in New York’s Second Department, mere allegations of wrongdoing were enough to support issuance of a pre-litigation subpoena.
We first heard about the case because both Kennedy and the Daily Kos were broadcasting their contrasting positions. Kennedy’s organization, Children’s Health Defense, posted several stories (here, here and here) about his efforts to identify his anonymous critic, while Daily Kos proclaimed its commitment to defending DowneastDem’s privacy while at the same time lambasting Kennedy in increasingly caustic terms, going so far as to call Kennedy a "cowardly bully" and publicly invite Kennedy to sue Daily Kos as it described Kennedy as having “cavorted with Nazis.”
We decided to defend DowneastDem’s anonymity, invoking the Dendrite analysis that our litigation in New Jersey and elsewhere has promoted, and hoping to establish the Dendrite approach as the issue went up on appeal in New York for the first time. The Dendrite issue was squarely presented for appeal because. as in Dendrite itself, there was no admissible evidence supporting the discovery and the trial judge had decided that no evidence was needed.
The California Litigation
Unfortunately, our hope to be able to litigate the Dendrite issue in a New York appellate court was dashed after Kennedy’s lawyers used the New York subpoena as a basis for initiating a subpoena proceeding in California. California adopted a version of the Dendrite analysis many years ago in a case called Krinsky v. Doe 6. But in any event Kennedy’s effort to identify the blogger struck me as pure bullying. Thus, we filed a petition to quash the subpoena, and secured a briefing schedule that would give both sides a fair opportunity to brief the issues. Kennedy’s lawyers started trying to avoid having to address our arguments, first filing a parallel motion to compel Kos Media to comply with the subpoena, with a hearing date before our motion to quash was scheduled to be heard, then trying to strike our motion papers altogether. Once those efforts were denied, Kennedy, using an unusual California procedure that gives parties a peremptory strike to change the judge assigned to a case, claimed that the judge who had rejected his procedural evasions was prejudiced against him, and got the case reassigned. At this point, however, our motions are fully briefed and the cross-motions are scheduled to be heard on November 2, 2021.
Kennedy’s opposition to the motion to quash was rhetorically strong but surprisingly anemic in substance. We had anticipated that he would use his considerable resources to produce eyewitness affidavits from his German collaborators to attest to his version of the facts – that is why we insisted on a briefing schedule that would give us ample time to find eyewitnesses to the rally at which he spoke. Instead, his opposition is based only on Kennedy’s own affidavit. Kennedy’s affidavit says broadly that the blog post contains false statements, which seems inadequate to the task of showing based on personal knowledge what was said at the rally, and by whom, considering that he does not appear to be fluent in German, and at the end of his speech, as shown on his own website, he appears to have headed to his bus to leave as soon as he was done speaking. On this sort of evidence, Kennedy risks a William Westmoreland style outcome -– that is to say, a ruling that, so far as the record shows, what DowneastDem said about his participation in the protest was essentially true. (And it was David Boies who achieved that result!)
If the case gets past Kennedy’s failure to present any admissible evidence of falsity, the utter lack of personal jurisdiction in the New York court, and the expiration of New York’s one-year statute of limitations since DowneastDem posted her blog article, the California judge could end up reaching an interesting issue that has been bothering me since we achieved our first round of success in getting the Dendrite analysis (or the related Cahill approach some state courts have adopted)— whether the requirement of an evidentiary showing extends to the issue of actual malice. Cases like Krinsky leave that issue open, and this case could be a good one to explore it.
Imagine, for example, that Bill Clinton wanted to identify an anonymous blogger who said, in 2021, that Clinton had sex with a White House intern – would Clinton get to identify his accuser by doing no more than swearing under oath, “I did not have sexual relations with that woman”? Or, considering the wealth of publication about Clinton’s conduct, would some showing on the issue of actual malice be required?
Similarly here, the defamation claim is not addressed to speech that is based on personal knowledge about what occurred in the course of a controversy that occurred in private, or between two or three people; so the speech was not based on facts known only to the defendant. The blogger here presented her take on what happened at a public rally, heavily covered by the mass media, and with thousands of people present (the very first post about this litigation on the web site of Children's Health Defense claimed the “speech that Kennedy delivered [was] to more than 1 million people” (although that same blog post said that the speech was on August 22 – you can see how careful Kennedy is with facts); another said that this was “one of the biggest demonstrations in [German] history.” In context, the blog post could represent DowneastDem’s opinion about the meaning of the media reports (which would not be actionable). Alternately, it could be treated as a characterization of the facts reported by the many media reports; if the characterization of such facts is itself a fact, it would not likely be the product of actual malice considering how many reputable media sources made just the same statements.
If Kennedy had sued DowneastDem as a Doe defendant in either Maine or New York, his lawsuit would have been vulnerable to a motion to dismiss under the anti-SLAPP laws in those two states, and he would have had to present prima facie evidence of actual malice without knowing the Doe’s identity. Where Kennedy has evaded anti-SLAPP motions by seeking the remedy of outing his critic, without actually filing an action that could be met with an anti-SLAPP motion, it is fair and reasonable to require him to present evidence that suggests some likelihood that the allegedly false facts about a widely-reported public event were stated with actual malice, before a court issues an order depriving the blogger of the First Amendment right to speak anonymously.
What Was Kennedy Thinking?
It is hard to figure out just what Kennedy hoped to accomplish by beginning this proceeding. He does not appear to have any intention of actually bringing a lawsuit against DowneastDem, because he could very easily have sued the blogger as a Doe defendant (and as we read New York law, that is the only way he could have avoided having the statute of limitations expire during the trial court litigation over his subpoena plus the inevitable appeal). But bringing such a lawsuit would expose him to an anti-SLAPP motion.
Nor has Kennedy filed a defamation action against the large media entities that also reported that he spoke at an event to which neo-Nazi parties and groupings had successfully summoned their members. He is proceeding only against someone whom he likely expected would have less resources for defense than the large media entities that reported much the same information.
Beyond that, it is apparent that Kennedy finds it infuriating that someone could criticize him anonymously – that was the tenor of his vituperative blog post after Public Citizen entered the case, and it was central to his lawyer’s response when I first contacted him to let him know that we would be entering the case to quash the California subpoena. But the right to speak anonymously is well established as First Amendment principle, and California – where Kennedy would inevitably have to come to compel Kos Media to disclose information – has long held that the First Amendment right to speak anonymously protects against subpoenas from a plaintiff claiming that speech was wrongful, unless the plaintiff can produce both legal argument and evidence showing that the plaintiff has a sound legal claim that has a realistic chance of success on the merits.
Even apart from the name-clearing aspects of threatening to bring a libel claim, what could Kennedy do to our client if he does not intend to file an actual defamation lawsuit? He could doxx her, and then turn the fury of his followers loose on her, potentially injuring her socially and financially. (Note that after he published the diatribe against Public Citizen for its role in this case, we promptly received complaints from his followers.)
Beyond that, Kennedy’s non-profit group has written about this case several times, even though on its face the case has no bearing on the issues that Children’s Health Defense purportedly pursues. Presumably, Kennedy believes that, by portraying himself as a victim, he presents himself as a martyr for his cause and appeals to his base for more donations. In fact, one of the Children’s Health Defense blog posts about this case indicated that it was “CHD lawyers” who are pursuing the litigation on Kennedy’s behalf.