Lewis et al v. Abramson

OCR transcription for search; preserved printed pages are authoritative

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Patrick Lewis et al.

Vv. Case No. 22-cv-126-PB
Opinion No. 2023 DNH 046
Seth Abramson

MEMORANDUM AND ORDER

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 Attack on the Capitol
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.

2
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, 20 F.4th 10, 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, 2023 WL 2730567, at *5 &
n.83 (Del. Super. Ct. Mar. 31, 2023); Eastman v. Thompson, No. 8:22-cv-
00099-DOC-DFM, 2022 WL 1407965, 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, 2022 WL 1407965
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
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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.
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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 Repo rting
Abramson is an attorney and journalist who publishes a substack2
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.
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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
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“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
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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
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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.
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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, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (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.” Id. 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
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complaint[.]” See Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228
F.3d 24, 32 (1st Cir. 2000) (quoting Shaw v. Dig. Equip. Corp., 82 F.3d 1194,
1220 (1st Cir. 1996)); see also Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,
524 F.3d 315, 321 (1st Cir. 2008).
In testing a complaint’s sufficiency, I employ a two-step approach. See
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (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.” Id.
(cleaned up). A claim consisting of little more than “allegations that merely
parrot the elements of the cause of action” may be dismissed. Id. 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. Id. The plausibility requirement “simply calls for
enough fact to raise a reasonable expectation that discovery will reveal
evidence” of illegal conduct. Twombly, 550 U.S. at 556. 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., 628 F.3d 25, 29 (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
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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., 317 F.3d 16, 20 (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., 228 F.3d at 32. For purposes of analysis,
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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, 130 N.H.
41, 47 (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., 130 N.H. at 47). “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, 684 F. Supp.2d 1073, 1085 (N.D. Iowa 2010); see also 15A C.J.S.
Conspiracy § 18 (2023) (cited favorably in Jay Edwards, Inc., 130 N.H. at 47).
however, I will assume that each statement that the complaint rephrases can
be read to imply what the plaintiffs claim it implies.
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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, 47 U.S.C. § 230(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.
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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, 2017 DNH 181, 2017 WL
3917154, 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
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feared for their own liability. See Iqbal, 556 U.S. at 680 (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., 228 F.3d at 32. 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., 131 N.H. 6, 11 (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, 2022
WL 3214993, at *5 n.2 (D. Mass. Aug. 9, 2022) (cleaned up); see also Lokhova
v. Halper, 995 F.3d 134, 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), 2020 WL 7405261, at *7
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B. 	Defamatio n, Defamatio n by Implic 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, 172 N.H. 548, 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., 155 N.H. 314, 335 (2007) (quoting Faigin v. Kelly, 978 F.
Supp. 420, 425 (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.
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Duchesnaye v. Munro Enters., Inc., 125 N.H. 244, 252-253 (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., 746 F. Supp.2d 358,
373 (D.N.H. 2010) (quoting Duchesnaye, 125 N.H. at 249).
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, 191 F.R.D. 39, 44 & n.6 (D.N.H. 1999); see also
Duchesnaye, 125 N.H. at 250 (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, 997 So.2d 1098, 1108 (Fla. 2008); Stevens v. Iowa
Newspapers, Inc., 728 N.W.2d 823, 827 (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, 51 F.4th 438, 444 (1st Cir. 2022).
Whereas “private plaintiffs can succeed in defamation actions on a
state-set standard of proof (typically, negligence) . . . the Constitution
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imposes a higher hurdle for public figures[.]” See Pendleton v. City of
Haverhill, 156 F.3d 57, 66 (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, 376 U.S. 254, 280 (1964). The Supreme Court
recognizes two kinds of public figures: general-purpose and limited-purpose.
See Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (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., 418 U.S. 323, 352 (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.” Id. at 345. Whether an
individual is a private or public figure presents a question of law for the
court’s determination. See Pendleton, 156 F.3d at 68.
“The New Hampshire Supreme Court has never explicitly recognized
the viability of a claim for false light.” Howard v. Antilla, 294 F.3d 244, 248
(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
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Restatement (Second) of Torts § 652 (1977), as have other jurisdictions.”8
O’Neill v. Valley Reg’l Health Care, Inc., 2001 DNH 054, 2001 WL 276968, at
*2 (D.N.H. 2001); see, e.g., Wentworth-Douglass Hosp. v. Young & Novis
Prof’l Ass’n, 2011 DNH 020, 2011 WL 446739, at *6 (D.N.H. 2011); Philbrick
v. eNom, Inc., 593 F. Supp.2d 352, 381 (D.N.H. 2009); Douglas v. Pratt, 2000
DNH 199, 2000 WL 1513712, 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, 2021 WL
72370 (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, 2021 WL 72370 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
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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, 385 U.S. 374, 387-388 (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 418 U.S. at 347; 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., 448 A.2d
1317, 1330 (Conn. 1982); McCall v. Courier-Journal & Louisville Times Co.,
623 S.W.2d 882, 888 (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., 53 S.W.3d 640, 647 (Tenn. 2001); Crump v.
Beckley Newspapers, Inc., 320 S.E.2d 70, 89 (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.
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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 Opinio 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, 785 F.3d 766, 771 (1st Cir. 2015) (quoting Milkovich v.
Lorain Journal Co., 497 U.S. 1, 16 (1990) (emphasis in original)); see also
Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (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.,
221 F.3d 243, 248 (1st Cir. 2000).
The extent of the First Amendment’s protection for statements of
opinion was first examined by the Supreme Court in Milkovich, 497 U.S. at
10. 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. Id. at 3. In
holding that the article was actionable, the Court rejected the argument that
the First Amendment provides a “wholesale defamation exemption for
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anything that might be labeled ‘opinion.’” Id. at 18. 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 id. at 18-19. 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.” Id. Importantly, however, the Court clarified that the First
Amendment does protect statements which “cannot reasonably be interpreted
as stating actual facts about an individual.” Id. at 20 (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 id. at 20-21. 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 id.
Not long after Milkovich was decided, the First Circuit examined its
reach in Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724 (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. Id. at 725. The First Circuit ultimately concluded that the
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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. Id. at 730. 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.” Id.
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, 172 N.H. 528, 532-
533 (2019) (quoting Pierson v. Hubbard, 147 N.H. 760, 763 (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, 106 N.H. 107, 111
(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, 292 F.3d
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F.3d at 772; see, e.g., Cheng, 51 F.4th at 447; McKee v. Cosby, 874 F.3d 54,
63 (1st Cir. 2017); Yohe v. Nugent, 321 F.3d 35, 41 (1st Cir. 2003); see also
Veilleux v. Nat’l Broad. Co., 206 F.3d 92, 134 (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, 221 F.3d at 248 (quoting Haynes v.
Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)); see also Partington
v. Bugliosi, 56 F.3d 1147, 1156 (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, 880 F.2d 1062, 1081 (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, 376 U.S. at 270 (quoting United States v. Associated Press, 52 F.
Supp. 362, 372 (S.D.N.Y. 1943)). In this way, the freedom of speech
282, 289 (1st Cir. 2002)).
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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., 466 U.S. 485, 503-504 (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, 874 F.3d at 61.
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., 22 F.3d 310, 315 (D.C. Cir. 1994); see also
Partington, 56 F.3d at 1154 (“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, 56 F.3d at 1154.
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
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simply offer one of several possible interpretations of disclosed facts. See
Piccone, 785 F.3d at 771 (quoting Phantom Touring, 953 F.2d at 727). 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.” Id. at 772.
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.
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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. Id.
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
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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,
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Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129 (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.
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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, 56 F.3d at 1156 (“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.
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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 id. 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
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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, 874 F.3d at 63). This is in line with other courts that have similarly
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concluded that providing a link can supply the factual disclosure necessary to
confer constitutional protection. See, e.g., Rehak Creative Servs., Inc. v. Witt,
404 S.W.3d 716, 732 (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., 86 A.D.3d 32, 45 (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., 10 Cal. Rptr.3d 429, 439 (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
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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. Id. 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), 2022 WL
18586268, 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, 73 La. L. Rev. 559, 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[.]”)
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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
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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, 2018 DNH 165, 2018 WL 3849877, 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, 475 U.S. 767, 776 (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
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Magazine, Inc., 501 U.S. 496, 517 (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., 993 F.2d 1087, 1092 (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, 640 F.3d at 12 (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.
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falsity of this accusation. Statement 16 accuses Luelsdorff of being “under
criminal investigation or . . . arrested in the past.” Id. at 14. 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.,
864 F.3d 236, 251-252 (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, 125
N.H. at 252-253 (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., 617 F. App’x 495, 510 (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.”).
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39
were false”); see also Veilleux, 206 F.3d at 134 (“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 nable 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.
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Id. 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 id.
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.
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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.
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42
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 id. 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:
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43
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.
Id.
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.
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44
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., 295
F.3d 94, 104-105 (1st Cir. 2002); Bourne v. Arruda, 10-cv-393-LM, 2011 WL
2357504, 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., 121 N.H. 62, 65
(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, 321 F.3d at 41-42.
For example, Statement 37 is comprised of two tweets, each of which
links to and discusses a Mother Jones article. The first tweet states:
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45
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.
Id. at 49.
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
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46
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.
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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, 221 F.3d at 249-250 (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, 2020 WL 7405261 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.
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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.
Id.
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
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49
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.
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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, 191 F.R.D. at 44. 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., 456 F.3d 198,
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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, 818 F.2d at 433 (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, 418 U.S. at 352 (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.
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52
Lew is et al. v. Abramso n
Case No. 22-cv-126-PB, Opinion No. 2023 DNH 046
APPENDIX25
A. 	Statements by Alleged Co -Co nspirato rs
No . 	Statement 	So urc e
3
“in ancient Rome, the elite Praetorian Guard kept
overthrowing the emperors they were assigned to protect. In
DC this January, seems the ‘1st Amendment Praetorians’
had similar ambitions”
Doc. 16
at 4
7
“Still don’t think 1AP is scary? Read RPL’s Tweet from June
28 calling on ‘Patriots’ to ‘take back and keep this Republic’
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”
Doc. 16
at 5
15
“Expect to learn more about the son of Russian exile
Baroness Rida von Luelsdorff who was in the Willard ‘war
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 :)”
Doc. 16
at 8
21
“General Flynn played a significant role in the insurrection
operation. ‘Flynn Org’ was heavily involved in the
‘legal/propaganda’ part of the op in the months leading up to
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
Doc. 16
at 9
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.
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mid-Nov 2020 to conduct his dirty work: 1st Amendment
Praetorian (1AP), led by Robert Patrick Lewis”
22
“Journalists, media and federal law enforcement need to
Investigate [arrow icon] 1st Amendment Praetorian [arrow
icon] and their role in the 1/6 insurrection. Who runs 1AP?
*Robert Patrick Lewis and
*Phillip Luelsdorff”
Doc. 16
at 9
23
“John Eastman mapped out a 6 point ([thumbtack icon] 1)
path for VP Pence to take to overturn the election, defy the
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”
Doc. 16
at 10
27
“Oath Keepers and 1st Amendment Praetorian were
standing by with weapons on Jan. 6th. They were
coordinating. 1AP takes ‘orders’ from Mike Flynn.
@January6thCmte”
Doc. 16
at 11
28
“Someone needs to tell the Oath Keepers, Proud Boys, and
1AP that ‘we're not racist’ is not a good defense for
trespassing, assault, and sedition”
Doc. 16
at 11
30
“Combine Raiklin’s background/access with that of 1AP’s
Phillip Luelsdorff whose mom’s backstory reads like that of
a Russian spy’s, and one wonders... Why does Flynn
surround himself with so many Russia-friendly operatives?”
Doc. 16
at 11
31 “Flynn’s militia, 1st Amendment Praetorian, had a member
on Giuliani’s team (Phillip Luelsdorff)”
Doc. 16
at 12
32
“1AP was inside the Capitol. They were hired by Flynn.
Oath Keepers were inside the Capitol. They were hired by
Roger Stone. Flynn and Stone have deniability. They say, ‘I
didn’t hire them to do THAT’”
Doc. 16
at 12
33
“In a tweet telegraphing the attack on the Capitol, the
official Twitter account of the 1AP warned on January 4,
2021: ‘There may be some young National Guard Captains
facing some very, very tough choices in the next 48 hours’”
Doc. 16
at 12
36 “1AP … cheered on the overthrow of the USG in realtime on
Jan 6th”
Doc. 16
at 13
Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 53 of 71

54
B. 	Co nstitutio nally Pro tec ted Opinio ns
No . 	Statement 	So urc e
1 Lewis and 1AP were among “Trump’s insurrectionists” 	Doc. 16
at 4
2
Doc.
20-3 at
9
8
Doc.
20-5 at
3
Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 54 of 71

Case

1:22-cv-00126-PB Document 26 Filed 05/09/23. Page 55 of 71

So Which War Room Was the 1AP War Room? Doc.
rs 20-5 at
5
9
rump’s Insurrection Week command center. So what evidence do we have that Lewis
gave his January 7 PTV interview from the Willard, and was referring to the suite of rooms
then being used by John Eastman, Joe Oltmann, Rudy Giuliani, Christina Bobb, Russell
Ramsland Jr., Robert Hyde, Maria Ryan and up to twenty-five other Trump attorneys,
associates, agents, advisers, aides, and allies during the week of the insurrection? Quite a lot.
{Note: Also see the prior Proof reporting on the Willard Hotel war room here, here, here, here, here and
here.}
(fS) MAJOR BREAKING NEWS: Far-Right Militants Were | Doc.
; , 20-8 at
in Trump's Insurrection Week Command Center 3
10

MAJOR BREAKING NEWS: Far-Right Militants Were in Trump's Insurre...
Proof reveals three new participants in Trump's Insurrection Week war room: one a
militant. two who helped a Capitol-breaching Stop the Steal insurrectionsst
broadcast Trump propaganda from January 6...

nitps.//sethabramson subétack. com,p/major-breaking-news-far-ngni-miltants

55

56
11
Doc.
20-5 at
7
12
Doc.
20-5 at
8-9
13
Doc.
20-5 at
10
Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 56 of 71

Case 1:22-cv-00126-PB Document26_ Filed 05/09/23 Page 5/7 of 71

14

January 5: The InfoWars Suite

« Alex Jones
*® Roger Stone
© Owen Shroyer

*® Michael Flynn*

ABRAMSON-0041
itips bstack.com/p!major-breaking-news-far-right-militants?s=r

W27/22, 4:40 PM Case 1:22-MA(@RIBREARING NEWS ratight Militants Meehan lastreftiarMiedkconiniahd Center
® Michael Flynn Jr.~

¢ Patrick Byrne™™
* Pastor Randy Coggins II

*Of Team Kraken and the Jericho March as well as Team Trump.
*“Per social media photos he has since posted.

*“*“Of Team Kraken, as well as the former CEO of Overstock.

Doc.
20-5 at
11-12

57

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 58 of 71

17

8/ There are days I think the January 6 insurrection is the *single strangest thing* that's ever
happened in U.S. history, like it represented a clash not of world-views but *actual whole
realities*—a "Tift in time" in which each side of America suddenly actually *saw* the other.

9) For instance, do readers of this feed realize that roughly 25% of voting Americans appear
to believe that the DCMP SWAT team that showed up seconds after Ashli Babbitt was shot...

..Was fake? Yes—they think it was a *fake SWAT team*. Sent by the Deep State. They really
do.

i10/ But it's not just, like, anonymous Twitter feeds with way too many numbers in their
handles that believe this.

Robert Patrick Lewis—who was advising the president's team on January 6—believes this.

He believes—or says he does—that the Deep State was using fake SWAT teams.

ii/ Think of how much danger the United States is in if the Republican who is most likely to
Tun for president in 2024 is someone advised by people who *literally*—I'm not screwing
around—might be subjected to a court-ordered psychiatric evaluation if and when they are
arrested.

1e/ And you'd think that at least Trump's *lawyers* aren't that deranged—just the men
advising and protecting them, like Lewis from 1AP. So how do we explain former Trump

lawyer Lin Wood having said that Trump remains president and still has control of our

military? It's *scary*.

Doc.
20-8 at
16

58

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 59 of 71

18

(@) NEW PROOF SERIES: PROOF now takes in so much
data daily on January 6—some of It not yet resolvable into a
feature-length article—that this new series has been developed
to allow the quick release of such information. | hope you'll
subscribe and share.

The Best Unpublished Proof Insurrection Research, Vol. 1

Sometimes Proof discovers—or receives from volunteer researchers—research
that doesn't fit the “Insurrection Update” senes or warrant its own article. Mow
there's a senes for such intelligence.

hitpe:fsethairameon .subsiack. com, pihe-bestunpublshed-proo-insurecton

Some of this info is pretty significant—it's just hard to link it to feature-length stories
PROOF is working on. In Item #6, here, on Bannon, you'll find the secret to what Team
Trump had planned for January 6, and it's not a narrative we've clearly heard from major
media yet.

Doc.
20-8 at
15

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 60 of 71

19

4/ There are days I think the January 6 insurrection is the *single strangest thing* that's ever
happened in U.S. history, like it represented a clash not of world-views but *actual whole
realities*—a "rift in time" in which each side of America suddenly actually *saw* the other.

9) For instance, do readers of this feed realize that roughly 25% of voting Americans appear
to believe that the DCMP SWAT team that showed up seconds after Ashli Babbitt was shot...

..Was fake? Yes—they think it was a *fake SWAT team*. Sent by the Deep State. They really
do.

io/ But it's not just, ike, anonymous Twitter feeds with way too many numbers in their
handles that believe this.

Robert Patrick Lewis—who was advising the president's team on January 6—believes this.

He believes—or says he does—that the Deep State was using fake SWAT teams.

i2/ And you'd think that at least Trump's *lawyers* aren't that deranged—just the men
advising and protecting them, like Lewis from iAP. So how do we explain former Trump
lawyer Lin Wood having said that Trump remains president and still has control of our
military? It's *scary*.

Doc.
20-8 at
16

20

Lewis also tells his two interviewers that 1AP provided security services post-election to a
“whistleblower” who had brought “evidence” of supposed election fraud to Sidney Powell
shortly after the election, which revelation certainly puts Lewis into the ambit of Trump’s

legal team in November rather than merely January 2021. Lewis says that the so-called
whistleblower in question had evidence that ballots had been flown into the United States
pre-election from South Korea on a public airline as well as “private jets.” Again, I believe that

a high-level adviser to Trump's legal team pre-, mid-, and post-insurrection. From mid-

November through January, Lewis says, 1AP had a detail on all three of Sidney Powell,

Doc.
20-6 at
10

60

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 61 of 71

24

War Room #2: The Willard Hotel War Room

Known and Identified Participants

® (1) Christina Bobb, One America News Network (OANN) host, aide to Giuliani
® (2) John Eastman, then-professor at Chapman University School of Law

e (3) Rudy Giuliani, personal attorney to then-president Trump

e (4) Robert Hyde, Trump associate involved in the Trump-Ukraine scandal

© (5) Joe Oltmann (a.k.a. “Joe Otto”), co-founder of FEC United, a Colorado group
closely linked to the United American Defense Force (UADF), a far-right
militia

® (6) Russell (“Russ”) Ramsland, Jr., Allied Security Operations Group

© (7) Maria Ryan, girlfriend of Rudy Giuliani and Giuliani aide

This roster was subsequently expanded to include Phillip Luelsdorff, the Director of Business

Development for a domestic-extremist paramilitary group, 1st Amendment Praetorians. Proof

also provided significant evidence that Luelsdorff’s boss, Robert Patrick Lewis—the founder

Doc.
20-7 at

26

Easiman

MAJOR BREAKING NEWS: Far-Right Militants Were in Trump's Insure...
Proof reveals twee new participants in Trump's Insurrection Week war room one a
militant, two who helped a Capito-breaching Stop the Steal insurrectionist
broadcast Trump propaganda from January 6...

hitneisethabramson .substack com ipimajor-breakingews-far-rignt-miliants

Doc.
20-8 at
27

61

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 62 of 71

29

PSs/ One of the money quotes in the ROLLING STONE article:

"The breaking point for me [on January 6 was when] Trump start[ed] talking about walking
to the Capitol [with the crowd]," the organizer says. "I was like, ‘Let's get the fuck out of
here.”

Eastman

MAJOR BREAKING NEWS: Far-Right Militants Were in Trump's Insure. ..
Proof reveals three new participants in Trump's Insurrection Week war roomc one a
militant, two who helped a Capitol-breaching Stop the Steal insurrectionist
broadcast Trump propaganda from January 6...

hitps./sethapramson substack .compimajor-breaking-news-far-right-milttants

Doc.
20-8 at
36

62

Case 1:22-cv-

00126-PB Document 26 Filed 05/09/23 Page 63 of 71

35

Seth Abramson @ @SethAbramson «Jan 10

(PS) And incredibly, even in this lengthy article about 1AP, the New York
Times misses the fact that the #2 man in the organization was identified by
PROOF *by name* from photographs taken *inside the Willard Hotel war
room* on Insurrection Eve/Insurrection Day. It's shocking...

OQ 6

(PS2)

P
re

39

Seth Abramson @
@SefhAbramson

tl 90 © 342 &

Eastman

MAJOR BREAKING NEWS: Far-Right Militants Were in Trump's Insurre...
Prot reveals three mew Participants In Trump's Insumection WEEK Wal room: one a
militant, two who helped a Capttol-oreaching Stop the Steal Insurrectionist
broadcast Trump propaganda from January 6...

nitps-/setanramson.substack com pimajor-oreaking-news-tar-right-miltarte

Doc.
20-8 at
38

Doc.
20-8 at
50

63

Case 1:22-cv-00126-PB Document 26 ~ Filed 05/09/23

Page 64 of 71

41

io) Every time the HJ6c interviews a new witness, it (a) increases the odds it'll go back to Doc

Brion witnesses (remember that some witnesses, like Cassidy Hotchinson, have been spoken .

to five of more times), and (b) reveals—if someone takes the 5th—where the Committee 20-8 at
54

should focus.

64

65
C. 	Statements No t Alleged to be False
No . 	Statement 	So urc e
16
Doc.
20-8 at
14
40
Lewis “drove Flynn, Powell, and Byrne to the White House
on December 18, 2020 for a coupplotting meeting” and
participated in a “covert operation” and “potentially
treasonous ‘December Conspiracy’—a December 2020
Trumpist plot to use the US Armed Forces to end American
democracy”
Doc. 16
at 14
Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 65 of 71

66
D. 	Ac tio nable Statements
No . 	Statement 	So urc e
4
Doc.
20-8 at
2
Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 66 of 71

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 67 of 71

(S) MAJOR BREAKING NEWS: Trump Was in Contact with Doc.
oe . 20-8 at
Insurrectionist Leaders on Insurrection Eve 4
Ivanka possibly lying in a depo went viral this morning. The
bigger news that Trump contacted insurrectionist leaders on
Insurrection Eve should go viral now.
MAJOR BREAKING NEWS: Trump Was in Contact with Insurrectionist ...
Reports Indicating Donald Trump spoke with Insumectionist leaders. on bath January
2 and Insurrection Day ls now joined by evidence he spoke to them January 5—
even a6 they plotted owt January 6.
nitps..(setnabramson.subsiack. com pimajor-breall Mego ewe SUMipH wasn
i/ 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.
Introduction Doc.
It’s become clear, based on emerging evidence produced by OSINT digital research, that 20-4 at
January 6 was coordinated by four entities—the White House, Stop the Steal, InfoWars, and | 2-3

ABRAMSON-0016

W27122, 4:41 PM Case 1:22-(MOREREARING NEWS Linamprivat{in-Conia¢haaih @urehiddist Ubawers op Inguitettion Eve

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

67

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 68 of 71

25

source is valuable. |

7 a

This is why sometimes—not always—going straight to the

! The Sparrow Project Ww
| @sparrowmedia

Replying to @isparowmedia and @SethAbramsoan

While the term “war room" is hyperbolic, there were
several meetings similar to the ones above across myriad
groups implicated in the riot. A common thread in each
was to "delay" certification in hopes that a temporary
injunction could be obtained in a lawsuit the following
day.

4:44 PM - Oct 20, 2021 @

© 1K oO Reply ny Copy link

Read 51 replies

Doc.
20-8 at
18

68

Case 1:22-cv-00126-PB Document26_ Filed 05/09/23 Page 69 of 71

34

> There were *many* January 6 war rooms inside the
Willard, e.g.:
ations
§) Trump Legal
jae dstAmendmentPraetorian/Team Kraken
Team Stone
a Team Bannon (Stockton/Lawrence)
March for Trump

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

@& Hugo Lowell @ @hugolowell : Dec 27, 2021

Really important re Trump War Rooms at the Willard: there were MULTIPLE war
rooms — Trump lawyers Giuliani, Eastman, Epshteyn plus Bannon was one

. Flynn and Stone had a separate operation.
c 27, 2021 - Twitter Web App

421 Retweets 12 Quote Tweets 904 Likes

Doc.
20-8 at
37

69

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 70 of 71

37

PR&OF

PREOF

Seth Abramson @ @SethAbramson - Jun 6 oe
PS?/ Three men who head paramilitary units were subpoenaed by the
House January 6 Committee on the same day in November 2021: Tarrio
(Proud Boys), now charged with Seditious Consplracy; Rhodes (Gath
Keepers), now charged with Seditious Conspiracy; and Robert Patrick Lewis
(WAP),

C) 4 Tl 4s

© 301 al

Seth Abramson @ “8
@SethAbramson

PS3/ Mother Jones recently reported that a
subordinate of Robert Patrick Lewis in 1AP (the First —
~ Amendment Praetorians), Michael Kenny, issued a __

' ABRAMSON-0114

motherones.com
Exclusive audia: Far-right paramilitary member warned 1/6 committee witness ..
“You talk alot pubilcly, and that’s what makes you a target."

Doc.
20-8 at
39-40,
49

70

Case 1:22-cv-00126-PB Document 26 Filed 05/09/23 Page 71 of 71

Exclusive audio: Far-right paramilitary member warned 1/6 committee ...
"You talk a lot publicly, and that's what makes you a target."

https:/Awww_ motherjones .com/politics/2022/04first-amendment-practorian-january-6-c. ..

NOTES5/ I strongly urge Americans to familiarize themselves with the ist Amendment
Praetorians and their leader Robert Patrick Lewis by reading the following investigative
report on the group at The Daily Beast (still just the tip of the iceberg as to 1AP):

https: //www.thedailybeast.com/1st-amendment-praetorian-the-far-right-paramilitary-

NOTES; I strongly urge Americans to familiarize themselves with the ist Amendment Doc.
Praetorians and their leader Robert Patrick Lewis by reading the following investigative 20-8 at
report on the group at The Daily Beast (still just the tip of the iceberg as to 1AP): AQ

Ss AAA eee a eo OT) -AT eo DeDi-) de TOT dt - Tela oa Pg i .

MORE/ “iAP members don't appear to have stormed the Capitol, but at least one operative—
Geoffrey Flohr—circled it as the attack was underway, talking covertly via an

Trump's possible ties to far-right militias examined by January 6 com...
Capitol attack panel expected to examine links between Trump and the extremist
groupe In closer detail at seventh public hearing

nites: werw. ihequardian. com/us-news/ 2022 )ul07/next-.an-6-hearing-trumg-tar-right-m..-

71