CORAL RIDGE MINISTRIES MEDIA, INC., d/b/а D. James Kennedy Ministries, v. AMAZON.COM, INC., et al.
CIVIL ACTION NO. 2:17cv566-MHT
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
September 19, 2019
(WO)
Plaintiff Coral Ridge Ministries Media, Inc. (“Coral Ridge“) filed this lawsuit against three defendants: the Southern Poverty Law Center, Inc. (“SPLC“), Amazon.com, Inc. (“Amazon“), and the AmazonSmile Foundation (“AmazonSmile“). The lawsuit is based largely on Coral Ridge‘s allegations that, because of its religious opposition to homosexual conduct, SPLC has designated it as a “hate group” and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.
Coral Ridge has three claims against SPLC: a state claim that its “hate group” designation is defamatory and federal claims for false association and false advertising under the
This lawsuit is before the court on the United States Magistrate Judge‘s recommendation to grant SPLC‘s and the Amazon defendants’ motions to dismiss filed pursuant to
I. JURISDICTION
The court has jurisdiction over Coral Ridge‘s federal claims pursuant to
II. MOTION-TO-DISMISS STANDARD
“To survive a
Crucially, however, the court need not accept as true “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts.” Oxford Asset Mgmt., Ltd., v. Jaharis, 297 F.3d. 1182, 1188 (11th Cir. 2002); see also Roberts v. Ala. Dept. of Youth Servs., 2013 WL 4046383, at *2 (M.D. Ala. Aug. 9, 2013) (Thompson, J.) (“[G]eneralizations, conclusory allegations, blanket statements, and implications will not” allow the complaint to survive a motion to dismiss). Conclusory allegations are those that express “a factual inference without stating the underlying facts on which the inference is based.” Conclusory, Black‘s Law Dictionary (11th ed. 2019).
As recognized by the Eleventh Circuit Court of Appeals, the “application of the plausibility pleading standard makes particular sense when examining public figure defamation suits” such as this one, given that “there is a powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending against expensive yet groundless litigation.” Michel, 816 F.3d at 702.
III. BACKGROUND FACTS
The allegations of the complaint, taken in the light most favorable to Coral Ridge, establish the following facts. Coral Ridge is a Christian ministry whose main activities include broadcasting via television, and otherwise spreading, the “Gospel of Jesus Christ,” as well as fundraising. Am. Compl. (doc. no. 40) at ¶¶ 32-39. In addition to being a Christian ministry, it is, by its own account, a media corporation, see id., as is also evident from its name, Coral Ridge Ministries Media, Inc. Its vision statement, included in its bylaws, is “to communicate the Gospel ... and a biblically informed view of the world, using all available media.” Id. at ¶ 33. Its “mission” includes “proclaim[ing] the Gospel upon which this Nation was founded.” Id. at ¶ 38.
Coral Ridge was founded in 1974 by David James Kennedy, an American pastor, evangelist, and broadcaster, and it produced a weekly television program, “The Coral Ridge Hour” (now called “Truths that Transform“), which “was carried on television networks and syndicated on numerous other stations with a peak audience of three million viewers in 200 countries.” Id. at ¶ 31-32. Kennedy also had a daily radio show that ran from 1984 to 2012. Id. at ¶ 32.
Coral Ridge continues to broadcast Kennedy‘s “Truths that Transform” on television. Id. at ¶¶ 35, 39. It espouses “biblical morals and principles” on homosexuality and marriage. Id. at ¶ 58. It also opposes same-sex marriage and the “homosexual agenda” based on its religious beliefs. Id. at ¶ 82.
Coral Ridge alleges that it “opposes homosexual conduct,” but “has nothing but love for people who engage in homosexual conduct.” Id. at ¶ 61. It says that its “position on LGBT issues is inextricably intertwined and connected to the [its] religious theology.” Id. at ¶ 155. It views homosexual conduct as “lawless,” “an abomination,” “vile,” and “shameful.” Id. at ¶¶ 155, 175 (citing and quoting Bible verses). Coral Ridge not only admits that “the
SPLC is a nonprofit organization that, among a range of activities, disseminates a “Hate Map” that lists groups that it designates as “hate groups,” including Coral Ridge. Id. at ¶¶ 20-21. SPLC‘s Hate Map is located on its website, and defines “hate groups” as groups that “have beliefs or practices that malign or attack an entire class of people, typically for their immutable characteristics.” Id. at ¶ 59. SPLC has disseminated the Hate Map in fundraising efforts and in its reports, training programs, and other informational services. Id. at ¶¶ 120, 121, 132.
SPLC designated Coral Ridge as a hate group because of its espousal of biblical views concerning human sexuality and marriage--that is, because of its religious beliefs on those topics. Id. at ¶¶ 57-61; see also id. at ¶¶ 154-55.
Amazon is the largest internet-based retailer in the world by total sales and market capitalization. See id. at ¶ 5. AmazonSmile is a tax-exempt corporation affiliated with Amazon. See id. at ¶¶ 14, 41. Amazon and AmazonSmile operate the AmazonSmile program, whereby they donate 0.5 % of the price of a purchase made on smile.amazon.com to an eligible charitable organization selected by the customer. See id. at ¶¶ 42-43. The vast majority of the items available for purchase through Amazon are also available for purchase through the AmazonSmile program at smile.amazon.com. See id. at ¶ 15.
To be selected by a customer to receive donations through the AmazonSmile program, an entity must satisfy the program‘s eligibility requirements. See id. at ¶ 44. These requirements include, among others, that the entity is “a [
Coral Ridge alleges that it attempted to register to receive donations through the AmazonSmile program, see id. at ¶ 51, but that it was prohibited from doing so because SPLC had designated it as a “hate group,” id. at ¶ 24, 53.
IV. DISCUSSION
A. Defamation Claim Against SPLC
Coral Ridge alleges that SPLC defamed it by designating it as a “hate group.”2
Because “[a]t the heart of the First Amendment is the recognition of the
A public figure is defined by the “notoriety of ... [its] achievements or the vigor and success with which ... [it] seek[s] the public‘s attention.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). “[P]ublic figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” Id. at 323. Public figures thrust themselves and their views into the public controversy in an effort to influence others. See Hutchinson v. Proxmire, 443 U.S. 111, 135-36 (1979) (finding scientist was not a public figure in part because he “did not thrust himself or his views into public controversy to influence оthers“).
Coral Ridge concedes it is a public figure, and this concession makes sense, given its focus on broadcasting its viewpoints through the media and the global reach of its television program. See Am. Compl. (doc. no. 40) at 32-33, 35, 39. Consequently, to succeed on this defamation claim against SPLC, it must satisfy the First Amendment heightened standard.5
1. Meaning of “Hate Group”
As stated above, the tenet that a court must accept as true the allegations in a complaint does not apply to conclusory statements. See Iqbal, 556 U.S. at 678. Therefore, in pleading the meaning of “hate group,” Coral Ridge cannot rely on allegations that express “a factual inference without stating the underlying facts on which the inference is based.” Conclusory, Black‘s Law Dictionary (11th ed. 2019). As detailed below, Coral Ridge did just that.
i. Coral Ridge‘s Alleged Meaning of “Hate Group”
The amended complaint asserts that, “A hate group is legally and commonly understood as one that engages [in] or advocates crime or violence against others based on their characteristics.” Am. Compl. (doc. no. 40) at ¶ 91; see also id. at ¶ 66. The alleged definitional requirement that hate groups “engage[] [in] or advocate[] crime or violence” is central to Coral Ridge‘s claim, since Coral Ridge contends that its “hate group” designation is false because it “does not engage in or advocate violence or crime against any group.” Id. at ¶ 123; see also id. at ¶¶ 66-69. In other words, Coral Ridge‘s main falsity argument--and thus defamation claim--hinges on its allegation that a required trait of “hate groups” is engaging in or advocating crime or violence.6
The court need not accept Coral Ridge‘s alleged definition of “hate group” because it is a conclusory allegation. Critically, Coral Ridge fails to plead any facts to support its “generaliz[ed],” “blanket statement[]” about the commonly understood meaning of “hate group.” Roberts, 2013 WL 4046383, at *2. It does not, for example, plead that “hate group” is anywhere defined--whether in a dictionary, or by any other source or entity--to require engaging in or advocating violence or crime. Coral
If courts considering motions to dismiss were obligated to accept as true plaintiffs’ factually unsupported definitions of words, concepts, and terms, it would make a mockery of
Not only is Coral Ridge‘s conclusorily asserted definition of “hate group” unsupported by any other factual allegations; worse yet, it is contradicted by more specific alleged facts that Coral Ridge pleads, cites in its briefing, and asserts to be subject to judicial notice.8 This court‘s “duty to accept the facts in the complaint as true does not require [it] to ignore specific factual details of the pleading in favor of general or conclusory allegations.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06, 1210 (11th Cir. 2007) (reversing denial of motions to dismiss where “the facts in [plaintiff‘s] own complaint plainly contradict the conclusory allegation” in the complaint); see also Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (stating that the court need not “accept as true allegations that contradict matters properly subject to judicial notice“). Here, Coral Ridge‘s conclusorily alleged and factually unsupported definition does not trump the concretely sourced, specific definitions of “hate group” that it cites.
In its amended complaint and briefing, Coral Ridge cites three sources--other than itself and SPLC--of definitions of a “hate group“: (1) judicial opinions, (2) the Federal Bureau of Investigation (FBI), and (3) the Anti-Defamation League (ADL). The definitions--or, in the case of the judicial opinions, lack of a definition--of the term “hate group” provided by all of these sources directly contradict Coral Ridge‘s allegation that a “hate group is legally and commonly understood as one that engages [in] or advocates crime or violence against others.” Am. Compl. (doc. no. 40) at ¶ 91.
To start, the amended complaint cites four judicial opinions to support its assertion that “the law defines a hate group as one whose activities include violence and crime.” Id. at ¶ 65. None of the cited opinions defines the term “hate group,” and two do not even mention the term: Virginia v. Black, 538 U.S. 343 (2003)...
(2003) (nowhere mentioning term); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (nowhere mentioning term); Powers v. Clark, 2014 WL 6982475, at *3 n.10 (E.D. Va. Dec. 9, 2014) (Hudson, J.) (not defining term); Doe v. Pittsylvania Cnty., 844 F. Supp. 2d 724, 740 (W.D. Va. 2012) (Urbanski, J.) (not defining term). The amended complaint‘s blanket assertion that “hate group” is legally defined in a particular way is therefore contradicted by the more specific fact that none of the cases cited by Coral Ridge defines the term.
Furthermore, unlike Coral Ridge‘s definition, the FBI‘s and ADL‘s definitions of a “hate group” do not include a requirement that the group engage in or advocate crime or violence. According to Coral Ridge, the FBI defines “hate group” as, “An organization whose primary purpose is to promote animosity, hostility, and malice against persons of or with a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity which differs from that of the members or the organization, e.g., the Ku Klux Klan, American Nazi Party.” Pl.‘s Resp. to SPLC‘s Mot. to Dismiss (doc. no. 51) at 5 (quoting FBI, Hate Crime Data Collection Guidelines And Training Manual, at 9 (2015), https://ucr.fbi.gov/hate-crime-data-collection-guidelines-and-training-manual.pdf).9 The ADL defines a “hate group” as “an organization whose goals and activities are primarily or substantially based on a shared antipathy towards people of one or more different races, religions, ethnicities/nationalities/national origins, genders, and/or sexual identities. ... [T]he group itself must have some hate-based orientation/purpose.” Id. at 5-6 (quoting Hate Group, ADL, https://www.adl.org/resources/glossary-terms/hate-group).10 Again, neither of these definitions contains the crime or violence requirement.11
In addition to conflicting with the FBI and ADL definitions, Coral Ridge‘s alleged definition of “hate group” is inconsistent with this court‘s “common sense” understanding of the words “hate” and “group.” Iqbal, 556 U.S. at 679 (explaining that courts must draw on their “common sense” in determining whether plaintiffs meet the plausibility pleading standard). While the word “hate” is sometimes associated with violence and crime, it does not necessarily connote the two.
In sum, the court need not accept Coral Ridge‘s blanket contention that a “hate group” is “legally and commonly understood as one that engages [in] or advocates crime or violence against others,” Am. Compl. (doc. no. 40) at ¶ 91, given that it is not only factually unsupported, but also contradicted by the FBI and ADL definitions that Coral Ridge cites, as well as by the court‘s common-sense understanding of the words “hate” and “group.”
Beyond belying the alleged crime or violence element of the “hate group” definition, the FBI and ADL definitions also show that the term does not have a single, “commonly understood” meaning. This is because the definitions contain important differences from one another. For example, unlike the FBI definition, the ADL definition does not require that the group “promote” animosity, hostility, malice, antipathy, or the like; under the ADL‘s definition, a white supremacist organization is still a “hate group” even if it keeps to itself. See Pl.‘s Resp. to SPLC‘s Mot. to Dismiss (doc. no. 51) at 5-6. Further, the FBI definition requires that a group‘s “primary purpose” be the promotion of its bigoted ideas, while the ADL definition is broader, including those whose “goals and activities” are “substantially based” on a shared antipathy towards people of a certain group.
The conclusion that the term “hate group” has no single, commonly understood meaning is reinforced by the lack of a definition for the term in dictionaries, of which the court takes judicial notice. See Veney, 293 F.3d at 730 (“Nor must we accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.)“. Neither Black‘s Law Dictionary (11th ed. 2019), Merriam-Webster Unabridged (online ed.), nor the Oxford English Dictionary (online ed.), defines the term “hate group.”12
ii. Court‘s Conclusion as to Meaning of “Hate Group”
Accepting as true the well-pleaded facts--but not the conclusory allegations--and construing them in the light most favorable to Coral Ridge, the court concludes that there is no single, commonly understood meaning of the term “hate group.” Rather, as shown by the conflicting definitions cited by Coral Ridge--and dictionaries’ lack of a definition--the term does not have one precise definition, and instead may be ascribed multiple different meanings by “the average reader.” St. Surin, 21 F.3d at 1317.13
2. Constitutional Requirements for Defamation
As previously mentioned, the
i. Provable as False
Under the
An alleged defamatory statement is generally not provable as false when it labels the plaintiff with a term that has an imprecise and debatable meaning. See, e.g., Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976). In Buckley, the author and commentator William F. Buckley, Jr. sued author and Holocaust scholar Franklin H. Littell for libel because Littell‘s book characterized Buckley as a “fellow traveler” of “fascism” or the “radical right.” Id. at 890, 893. The Second Circuit Court of Appeals held that those terms were “concepts whose content is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity.” Id. at 894. As the court emphasized, the ambiguous labels contrasted sharply with accusations of being a member or legislative representative of a concrete political party, which are allegations that are “susceptible to proof or disproof of falsity.” Id. That the plaintiff and defendant defined “fascism” differently was but one example of the “imprecision of the meaning and usage of the[] term[] in the realm of political debate.” Id. at 890, 893.
Subsequently, in Ollman v. Evans, the D.C. Circuit Court of Appeals elaborated on and applied the principles set forth in Buckley. See 750 F.2d 970, 979-87 (D.C. Cir. 1984) (en banc).16 The court held to be
The Ollman court explained why demanding that defamatory statements be “objectively capable of proof or disproof” safeguards important free speech interests: “[I]nsofar as a statement is unverifiable, the
So, with these cases in mind, is the statement that Coral Ridge is a “hate group” provable as false? No, it is not. Like in Ollman and Buckley, the meaning of the term “hate group” is so “debatable, loose and varying,” that labeling Coral Ridge as one is “insusceptible to proof of truth or falsity.” Buckley, 539 F.2d at 894. Similar to the terms “fascism,” “radical right,” and “political Marxist,” the term “hate group” also suffers from a “tremendous imprecision of the meaning and usage ... in the realm of political debate.” Id. at 893. This imprecision is reflected in the conflicting definitions of the term espoused by Coral Ridge and SPLC, as well as by the ADL, and FBI. Unlike the accusation of a crime, the accusation of being a hate group does not derive its meaning from “commonly understood” social norms. Ollman, 750 F.2d at 980. A “hate group” designation is also a far cry from the objectively vеrifiable allegation of having a “well-defined political affiliation,” such as being “a legislative representative of the Communist Party.” Buckley, 539 F.2d at 894.
In sum, because “hate group” has a highly debatable and ambiguous meaning, Coral Ridge‘s designation as such is not “provable as false.” Milkovich, 497 U.S. at 19.17 Therefore, the
ii. False
In addition to requiring that a defamatory statement be provable as false, the
This court‘s holdings that Coral Ridge does not plausibly plead that the “hate group” designation was (1) provable as false or (2) false are each independently sufficient to dismiss the defamation claim. Nevertheless, the court will now discuss Coral Ridge‘s failure to plead, plausibly, actual malice, which is an alternative ground for dismissing the claim.
iii. Actual Malice
The third and final
Nonetheless, for the following reasons, even if the court were to conclude that the “hate group” label was both provable as false and actually false, Coral Ridge still would not plausibly allege actual malice.
The test for actual malice “is not an objective one and the beliefs or actions of a reasonable person are irrelevant.” Michel, 816 F.3d at 702-03 (citing St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). Rather, the plaintiff must plead enough facts to allow the court to draw the reasonable inference that the defendant, “instead of acting in good faith, actually entertained serious doubts as to the veracity of the published account, or was highly aware that the account was probably false.” Id. Coral Ridge does not satisfy this test.
Coral Ridge‘s basic contention regarding actual malice is that the “hate group” definition that SPLC used in designating it as such is so far removed from the commonly understood meaning of the term that SPLC must have known--or at least recklessly disregarded--the falsity of the designation. See, e.g., Am. Compl. (doc. no. 40) at ¶ 67 (“SPLC‘s definition of ‘hate group’ is so far outside of how hate groups are legally and culturally understood that ... SPLC knew of the falsity of its definition at the time it designated the Ministry a
between, on the one hand, the common understanding that all hate groups engage in or advocate crime or violence, and, on the other, SPLC’s broader definition of “hate group” and its application of that definition to Coral Ridge for “oppos[ing] homosexual conduct.” Id. at ¶ 61.
Fatal to Coral Ridge’s contention is the reality that “hate group” has no single, commonly understood meaning. Without a commonly understood meaning, there can be no chasm between the commonly understood meaning and SPLC’s definition.
Furthermore, Coral Ridge still would not plausibly allege actual malice even if this court were to accept as true its allegation that the single, commonly understood meaning of “hate group” requires that the group engage in or advocate crime or violence. Granted, if that were the case, there would be a significant discrepancy between the commonly understood meaning of a hate group and SPLC’s definition, given that the latter lacks a violence or crime requirement. And, admittedly, a substantial disparity between the commonly understood meaning of a term and the definition relied on by an alleged defamatory speaker might, in certain circumstances, lead to a reasonable inference of knowledge or recklessness as to falsity. Cf. Michel, 816 F.3d at 703 (noting that the Supreme Court has stated that actual malice “can be inferred in certain circumstances,” such as when allegations are “so inherently improbable that only a reckless man would have put them in circulation“). Nevertheless, those circumstances are not present under the facts pleaded here.
Specifically, Coral Ridge pleads that SPLC, holding itself out to the public as a “premier” U.S. monitor of “hate groups,” publicly disseminates its own definition of “hate groups” to a “vast” audience of people and media across the country. Am. Compl. (doc. no. 40) at ¶¶ 71, 143.18 Coral Ridge does not plead any facts indicating that SPLC subjectively doubts or disbelieves the validity or accuracy of the definition that it so widely promotes under the banner of being a premier “hate group” monitor. Consequently, even if the court accepted Coral Ridge’s asserted commonly understood meaning of “hate group,” the pleaded facts, read in the light most favorable to Coral Ridge, would support the reasonable inference that SPLC promotes its own sincerely held view of the meaning of “hate group,” despite the difference between its view and the commonly understood meaning that a “hate group” engages in or advocates crime or violence.19 Setting aside the above-discredited allegations claiming a common definition of “hate group,” the pleaded facts do not lead to a reasonable inference that “instead of acting in good faith,” SPLC “actually entertained serious doubts as to the veracity” of its “hate group” definition and application to Coral Ridge, or was “highly aware” that
not plausibly allege that SPLC’s subjective state of mind was sufficiently culpable.
To find actual malice just because SPLC publicized a meaning of “hate group” that conflicted with the common understanding of the term would severely undermine debate and free speech about a matter of public concern. This is because, even if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of “hate group” would be akin to punishing a speaker for advocating new conceptions of terms like “terrorist,” “extremist,” “sexist,” “racist,” “radical left wing,” “radical right wing,” “liberal,” or “conservative.” Punishing speakers to preserve status quo ideas would be anathema to the First Amendment.
***
If Coral Ridge disagrees with the “hate group” designation, its hope for a remedy lies in the “marketplace of ideas,” not a defamation action. Milkovich, 497 U.S. at 18 (citing Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas-- ... the best test of truth is the power of the thought to get itself accepted in the competition of the market.“). As a public figure, with a national, if not international audience, and a figure that has already “been vocal about its position on homosexuality” and maintains that “speaking out on these issues is necessary,” Pl.’s Resp. to SPLC’s Mot. to Dismiss (doc. no. 51) at 10, Coral Ridge is free publicly to engage SPLC; to criticize SPLC’s definition of a “hate group“; and, in particular, to challenge Coral Ridge’s designation as such. This engagement should be in the court of public opinion, not a federal court. The defamation claim will be dismissed with prejudice.
B. Lanham Act Claims Against SPLC
Coral Ridge seeks to hold SPLC liable for its designation of Coral Ridge as a “hate group” under
Coral Ridge claims that SPLC engaged in false advertising by falsely designating it a “hate group” on its Hate Map, disseminating the Map and “hate group” designation in connection with reports and trainings, and engaging in fundraising focused on the Hate Map and “hate group” designations. See
Coral Ridge’s false-association claim rests on many of the same allegations, but focuses on SPLC’s use of Coral Ridge‘s trademarked name. Coral Ridge contends that the use of its trademarked name on the Hate Map is likely to cause confusion as to Coral Ridge’s “association” with other hate groups on the Map, such as the Ku Klux Klan and the American Nazi Party. See
Because Coral Ridge’s claims cannot, as an initial matter, withstand the rigorous protections of the First Amendment, and because it has not pleaded viable claims under the statute, the claims fail.
1. First Amendment
As the Supreme Court has made clear, even when they do not bring a defamation claim, “public figures” who seek to sue others who criticize them may still be subject to New York Times v. Sullivan’s heightened requirements for liability. 376 U.S. 254 (1964).
In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), Jerry Falwell, a nationally known minister and commentator on politics, had successfully sued Hustler Magazine, a nationally circulated magazine, to recover damages for “intentional infliction of emotional distress” arising from the publication of an advertisement “parody” which, among other things, portrayed Falwell as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. In overturning the lower-court jury verdict, the Supreme Court, while recognizing that the publication was “gross and repugnant in the eyes of most,” 485 U.S. at 50, found that, because Falwell was concededly a public figure, he was subject to the New York Times’s twin obligations of showing that the publication contains “a false statement of fact” and that the statement “was made with ‘actual malice.’” Id. at 56.
In explaining why the Supreme Court found as it did, this court must, as did the Supreme Court in Falwell, revisit certain well-founded principles, albeit only briefly. These principles, as summarized in Falwell, are as follows: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. ‘[T]he freedom to speak one‘s mind 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 United States, Inc., 466 U.S. 485, 503–504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a ‘false’ idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). As Justice Holmes wrote, ‘when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market ... .’ Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).” Falwell, 485 U.S. at 50-51 (emphasis added).
The Falwell
Falwell argued that, despite these First Amendment principles, a different standard should apply in this case because the government sought to prevent “not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication.” Falwell, 485 U.S. at 52.
The Court rejected this argument, reasoning that: “[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment ... . [E]ven when a speaker or writer is motivated by hatred or illwill his expression was protected by the First Amendment: ‘Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.’ [Garrison v. Louisiana, 379 U.S. 64, 73 (1964)].” Falwell, 485 U.S. at 53 (emphasis added).
Critical to Court was not the “label” placed on the cause of action, New York Times, 376 U.S. at 269 (“In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to other ‘mere labels’ of state law.“), but rather whether the concern raised by New York Times and reiterated in later cases was at issue: that “debate on public issues should be uninhibited, robust, and wide-open ... .” Id., 376 U.S. at 270. As the Falwell Court emphasized: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.” 485 U.S. at 50 (emphasis added).
The Falwell Court then concluded: “This is not merely a ‘blind application’ of the New York Times standard ... , it reflects our considered judgment that such a standard is necessary to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Id. at 56.
Here, as discussed above, Coral Ridge has conceded that it is a “public figure.” Public figures, as stated, are defined by “the notoriety of their achievements or the vigor and success with which they seek the public‘s attention,” Gertz, 418 U.S. at 342; they “usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy,” id. at 323; and they “thrust themselves and their views into the public controversy in an
Coral Ridge admits that it is a public figure, with quite significant “access to the channels of communication” through its television and other media efforts. Id. at 323. It freely chose to take a public stance on an issue of broad, pressing national debate and public concern: homosexuality, and more specifically the morality of “homosexual conduct” and the legal right to same-sex marriage. See Pl.’s Resp. to SPLC’s Mot. to Dismiss (doc. no. 51) at 10 (Coral Ridge not only admits that “the Ministry has been vocal about its position on homosexuality,” it also argues that “speaking out on these issues is necessary).
It has further conceded that the dispute between it and SPLC arises out of SPLC’s labelling of it as an “Anti-LGBT hate group” for its stance on this debate. See Am. Compl. (doc. no. 40) at ¶ 154. At issue here, therefore, is nothing less than a public figure’s engagement in an out-and-out “public debate” on one of the matters of “highest public interest and concern” in this country. New York Times, 376 U.S. at 266. That being so, “adequate ‘breathing space,’” Falwell, 485 U.S. at 56, in the form of the protections provided in New York Times v. Sullivan must be given.
Coral Ridge argues that it is not a hate group; that, while it “opposes homosexual conduct,” it “has nothing but love for people who engage in homosexual conduct,” Am. Compl. (doc. no. 40) at ¶ 61; and that its views on “same-sex marriage” and the “homosexual agenda” are “decent and honorable,” id. at ¶ 82 (quoting Obergefell v. Hodges, 135 U.S. 2584, 2602 (2015)). It further argues that, because SPLC’s labeling, in response to its stand, is “in connection” with “goods and services,” it should be able to recover damages under the Lanham Act. Id. at ¶¶ 125, 145.
But, when Coral Ridge, as a public figure, entered the public debate about gay rights, it took on the risk that it and its goods and services would be adversely affected. A public figure cannot enter the fray of debate halfway. As the Supreme Court cautioned in the Falwell case: The public figure that “vaunts [its] spotless record and sterling integrity cannot convincingly cry ‘Foul!’ when an opponent or an industrious reporter attempts to demonstrate the contrary.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971).
Moreover, there is nothing in New York Times v. Sullivan and its progeny that suggests that, simply because a public figure that has entered the fray of public debate sells goods or services, it should when verbally attacked escape the heightened requirements for establishing liability under the First Amendment and should enjoy an uneven playing field, that is, an advantage over those public figures that do not sell goods and services. Coral Ridge joined many other public figures around the country in the national discussion about the rights of gay people. When it did this it opened itself up to criticisms about its views. For all the ‘public figure’ participants, name-calling--“purveyor of sin and indecency” or “purveyor of hate“--comes with the turf. Coral Ridge has joined in that public debate and must now abide by the same rules all other public figures do.
Having found that, in asserting Lanham Act claims, Coral Ridge is subject to the heightened standard of the First Amendment, the court further concludes that, to recover from SPLC, Coral Ridge must show that what SPLC said about it was provable as false and false, and was said with actual malice. For the reasons given above, in the discussion of Coral Ridge’s
Nevertheless, Coral Ridge argues that public debate on gay rights is not the sole concern presented here. It contends that SPLC also uses the Hate Map and “hate group” designations to promote Hate-Map-related “goods and services“--its reports, trainings, and other informational services--and, indeed, argues that it makes money from the sale of those “goods and services” as a result of its “hate group” designations. However, SPLC, like a magazine or a newspaper, is in the business of communicating information and viewpoints on issues of public concern and debate. “[M]agazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability. See Farah v. Esquire Magazine, 736 F.3d 528, 541 (D.C. Cir. 2013) (holding that a satirical article about a book in a magazine’s online blog was not commercial speech subject to Lanham Act liability even though ‘writers write and publishers publish ... for commercial purposes’); Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001) (‘A printed article meant to draw attention to the for-profit magazine in which it appears, however, does not fall outside of the protection of the First Amendment because it may help to sell copies.’).” Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 952 (11th Cir. 2017). See also Burstyn v. Wilson, 343 U.S. 495, 501 (1952) (“That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.“). The fact that SPLC may, as alleged, earn money in connection with these communicative activities on an issue of public concern does not reduce the protection it receives under the First Amendment, and does not convert its speech into the basis for a viable Lanham Act claim. Likewise, the fact that the Hate Map may be used to attract attention to and increase sales of SPLC’s Hate-Map-related trainings and informational services does not convert the Map and “hate group” designations into purely commercial speech subject to a lower level of constitutional protection. See Hoffman, 255 F.3d at 1186.
Similarly, the allegation that SPLC may use the Hate Map and “hate group” designations in fundraising does not mean that it should receive a lesser level of First Amendment protection. As the Supreme Court explained in Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc., where it struck down a restriction on the advertising of prescription drug prices: “Speech ... is protected ... even though it may involve a solicitation to purchase or otherwise pay or contribute money.” 425 U.S. 748, 761 (1976). Furthermore, in cases involving fundraising by charitable organizations, the court has treated that speech as deserving of the highest level of protection, based on “the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech ..., and ... that without solicitation the flow of such information and advocacy would likely cease.” Riley v. Nat‘l Fed‘n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796 (1988); see also Sec‘y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984); Village of Schaumburg v. Citizens for a Better Env‘t, 444 U.S. 620 (1980). Thus, the allegations about the use of Hate Map in fundraising do not reduce the constitutional protections for SPLC‘s speech.
Although the above legislative history is admittedly sparse, a leading commentator has observed that the added “fact” requirement appears to have been “a conscious and intentional limitation imposed by Congress to exclude from the prohibitions of
5 McCarthy on Trademarks and Unfair Competition § 27:96 (emphasis in original); see Gertz, 418 U.S. at 339-40.
As for the added requirement of “commercial advertising or promotion,” Representative Kastenmeier offered more explanation, quoting at length a noted trademark commentator, who explained that the “advertising or promotion” requirement would exclude statements raising free speech concerns from coverage of the Act. Remarks of Rep. Kastenmeier on S. 1883, 134 Cong. Rec. 31852 (Oct. 19, 1988). He explained that the categories of speech excluded from the coverage of the Act “are the type which raise free speech concerns, such as a Consumer Report which reviews and may disparage the quality of stereo speakers or other products, misrepresentations made by interested groups which may arguably disparage a company and its products because of the company‘s failure to divest its South African holdings, and disparaging statements made by commentators concerning corporate product liability and injuries to the public (e.g., A.H. Robins and the Dalkon shield cases, or the Manville Corporation asbestos cases). All of these would be judged by first amendment law (including New York Times v. Sullivan) and not
While not conclusive, this legislative history is consistent with this court‘s analysis: it suggests Congress anticipated that a conflict would arise between the
2. Application of the Lanham Act
Constitutional concerns aside, Coral Ridge has failed to plausibly plead its false-association and false-advertising claims. The court will first address the false-advertising claim, and will then turn to the false-association claim.
a. False-Advertising Claim
As discussed above, prior to the 1989 revision,
In support of its false-advertising claim, Coral Ridge alleges in the complaint that SPLC misrepresented the nature, characteristics, and quality of Coral Ridge‘s goods and services by labelling the organization a ‘hate group.’ For the reasons discussed in the defamation section, the designation of Coral Ridge as a “hate group” is not provable as false; there is no commonly accepted definition of the term “hate group.” Thus, the representation or description that Coral Ridge challenges is
Coral Ridge‘s claim also must be dismissed because it has not plausibly pleaded that SPLC used the hate group designation in “commercial advertising or promotion.”
(quoting Suntree Techs., Inc. v. Ecosense Int‘l, Inc., 693 F.3d 1338, 1349 (11th Cir. 2012) (quoting Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521, 1535-36 (S.D.N.Y. 1994) (Sand., J.))).
i. Commercial Speech
With the facts alleged in the complaint considered in the light most favorable to the plaintiff, SPLC‘s use of the Hate Map does not constitute ‘commercial speech.’
To assess whether Coral Ridge has sufficiently alleged that SPLC engaged in commercial speech, the court looks to the
Under the commercial speech doctrine, commercial speech receives a lower level of constitutional protection than do other forms of speech more central to the concerns of the
SPLC‘s Hate Map and “hate group” designations do not meet the definition of commercial speech under either of these tests. Based on the allegations in the complaint, neither the Hate Map nor the “hate group” designations propose a commercial transaction. Nor does the complaint plausibly allege that SPLC‘s Hate Map and its “hate group” designations are “expression related solely to the economic interest of the speaker and its audience.” While describing SPLC‘s Hate Map as a “fundraising tool,” the complaint does not allege that SPLC‘s interest in the Hate Map is solely economic. On the contrary, the complaint alleges that SPLC wants to shut “hate groups” down. Nor does the Hate Map constitute expression related solely to the economic interests of SPLC‘s audience. As alleged in the complaint, the audience for the Hate Map includes government agencies that seek information about “hate groups;” presumably these agencies’ interest in the Hate Map is not solely or even primarily economic, but instead is an interest in law enforcement. Furthermore, the complaint alleges that SPLC has placed the Hate Map on its public website, where the audience presumably includes individuals who are concerned about or interested in “hate groups” for non-economic reasons. Thus, the Hate Map does not constitute core commercial speech.
Coral Ridge argues that the Hate Map and “hate group” designations are commercial speech because (1) they are used to promote SPLC‘s ‘goods and services‘; and (2) because SPLC uses the Hate Map and related designations as a tool in fundraising appeals, and has raised millions of dollars as a result. Based on these allegations, the court will assume that SPLC‘s Hate Map has an economic element. But that does not resolve the issue.
In looking at speech advancing a mix of economic and other important societal interests, the Supreme Court‘s approach has varied based on “the essential nature of the speech in question.” Gordon & Breach Sci. Publishers S.A., 859 F. Supp. at 1540. In Bolger v. Youngs Drug Prods. Corp., the defendant contraceptive company mailed informational pamphlets about contraceptives and venereal disease directly to consumers; these pamphlets mentioned the defendant‘s products while discussing the broader issues. 463 U.S. 60 (1983). The defendant company conceded that the pamphlets were advertisements for its products, but argued that the pamphlets were nonetheless entitled to the highest level of protection under the
In contrast, in a series of cases, the Court has applied the highest level of
The Court again struck down a law regulating solicitation by charitable organizations in Riley v. Nat‘l Fed‘n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796 (1988). The law at issue defined reasonable fees for professional fundraisers, prohibited them from soliciting without a license, and required them to disclose the amount they turned over to charities in the previous year. There, the Court again rejected the idea that charitable solicitations--even when conducted by a professional fundraiser--should be subjectеd to a reduced level of scrutiny as commercial speech. The Court reasoned that “solicitation is characteristically intertwined with informative and perhaps persuasive speech ..., and ... that without solicitation the flow of such information and advocacy would likely cease.” Id. at 796 (quoting Munson, 467 U.S. at 959–960 (quoting Schaumburg, 444 U.S. at 632). The Court held that arguably commercial speech does not “retain[] its commercial character when it is inextricably intertwined with otherwise fully protected speech. ... Where ... the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression.” Id.
The speech alleged in this case is clearly more akin to the speech deemed fully protected expression in the charitable fundraising cases than to the disguised commercial advertising by a pharmaceutical company at issue in Bolger. Although the alleged fundraising and fee generating aspects
In addition to its alleged use in fundraising, Coral Ridge alleges that SPLC uses the Hate Map to promote its trainings, for which Coral Ridge alleges government agencies pay a fee, and that SPLC has sold the Hate Map and associated “hate group” designations to AmazonSmile and Guidestar USA. This does not change the court‘s conclusion that SPLC‘s use of the Hate Map and “hate group” designation is not commercial speech. Assuming the truth of the allegations that SPLC generates fees from trainings and has sold the contents of the Hate Map to other organizations, SPLC‘s receipt of fees does not convert the Hate Map into commercial speech under the
fact that SPLC has used the Hate Map to promote its Hate-Map-based trainings and informational services does not convert it into commercial speech. See Hoffman, 255 F.3d at 1186. The allegation that SPLC generates fees from trainings of government agencies based on the contents of the Hate Map and the fact that organizations may have paid for the content does not convert the Map into commercial speech.
ii. Speech for the purpose of influencing consumers to buy defendant’s goods or services
The third requirement of “commercial advertising or promotion” is showing the defendant engaged in the challenged speech with “the purpose of influencing consumers to buy defendant’s goods or services.” Edward Lewis Tobinick, MD, 848 F.3d at 950. Coral Ridge has failed to plausibly plead this element of the test.
The allegations of the amended complaint do not support Coral Ridge’s argument that SPLC designated it as a “hate group” with the purpose of influencing consumers to buy SPLC’s produce. The amended complaint clearly alleges that SPLC’s “very purpose for placing the Ministry on the Hate Map was to harm the reputation of the Ministry as to lower it in the estimation of the community and to deter third persons from associating or dealing with the Ministry. Specifically, SPLC was attempting to dissuade people and organizations from donating to the Ministry and to ultimately destroy the Ministry.” Am. Compl. (doc. no. 40) at ¶ 95; see also id. at ¶¶ 79, 106 (alleging that “SPLC” has publicly stated that its aim is to destroy those organizations it labels at “hate groups“).
“SPLC uses the Hate Map and hate group based designations to promote its goods and services, include [sic] ‘investigative reports,’ training programs (used by U.S. law enforcement ... and рrivate organizations), ‘key intelligence,’ and ‘expert’ analysis. Through promotion of the Hate Map and hate group designations, the groups listed on the Map becomes an object of scorn and disdain for SPLC’s audience, which includes individuals and organizations interested in charitable giving. Through the use of the Hate Map and hate group designations, SPLC focuses attention on these groups to convince its audience that these groups must be destroyed. SPLC then markets its Hate Map-infused produces to this audience for the purpose of further marginalizing and isolating the listed ‘hate groups,’ potentially leading to the destruction of the listed organizations, ... which is SPLC’s ultimate goal.”
Id. at ¶ 140. With the initial allegation taken together with the explanatory paragraph that follows, the clear import is that SPLC’s goal in designating Coral Ridge as a “hate group” is shutting it down--not selling goods and services to relevant consumers.
iii. Dissemination to the Relevant Purchasing Public
The final part of the test is that “the representations ... must be disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion’ within that industry.” Edward Lewis Tobinick, MD, 848 F.3d at 950. The allegations of the complaint are insufficient to establish this element of commercial advertising and promotion.
Applying this factor, “breadth of dissemination, although important, is not dispositive. Rather, the primary focus is the degree to which the representations in question explicitly target relevant consumers.” Gordon and Breach Sci. Publishers. S.A. v. Am. Inst. of Physics, 905 F. Supp. 169, 182 (S.D.N.Y. 1995). To apply this test to the allegations of the complaint, the court must first define the relevant purchasing public and industry. Coral Ridge attempts to define the “relevant purchasing public” as “those people and those organizations that engage in charitable giving to tax-exempt organizations.” Am. Compl. (doc. no. 40) at ¶ 142; Pl.’s Resp. to SPLC’s Mot. to Dismiss (doc. no. 51) at 44. As for the relevant industry, Coral Ridge takes issue with SPLC’s argument that the relevant industry is Christian television ministries, arguing that it also engages in “publishing and other activities related to its mission,” Pl.’s Resp. to SPLC’s Mot. to Dismiss (doc. no. 51) at 44, but it does not specify its industry.
If the relevant purchasing public and industry could be defined at such a high level of generality, the test would be meaningless. The world of non-profit organizations is almost, if not just, as varied as the world of for-profit organizations: it ranges from publishers of scientific journals, to health-care providers, to vocational-training providers, religious organizations, atheist organizations, and organizations that promote the arts. It would make no sense to consider the relevant purchasing public for all these organizations to be the same simply because they are all non-profits, just as it would make no sense to consider the relevant purchasing public the same for a subway-car manufacturer and a health-food store simply because they are both for-profit organizations. While there may be some minor overlap in the purchasing public for each, that makes little difference to the determination of “the degree to which the representations in question explicitly target relevant consumers.” Gordon and Breach Sci. Publishers, 905 F. Supp. at 182.
Based on the allegations of the complaint, the court considers Coral Ridge’s industry to be Christian television and media. While Coral Ridge has alleged that SPLC has broadly disseminated the Hate Map through its website, fundraising efforts, and promotion of its training for government agencies, Coral Ridge has failed to allege any specific facts showing that SPLC has disseminated its Hate Map, and more specifically, its designation of D. James Kennedy Ministries as a “hate group,” within the relevant purchasing public for Christian television and media.25 Nor is there any allegation that the dissemination of the “hate group” designation “explicitly target[s] relevant consumers.” Gordon and Breach Sci. Publishers S.A., 905 F. Supp. at 182. Based on the allegations, it appears that some of Coral Ridge’s target consumers may incidentally come across the Hate Map and “hate group” designation, but there is no indication that SPLC’s methods of dissemination are targeted towards consumers of Christian television and media. As a result, Coral Ridge has failed to plead that SPLC used the Hate Map and “hate group” designation in commercial advertising and promotion.
Because it failed to allege that SPLC made a representation or description of “fact” and that it made such a statement in “commercial advertising and promotion,” Coral Ridge has not plausibly pled that SPLC a viable claim for false advertising under the Lanham Act.
b. False-Association Claim
Coral Ridge also brings a claim for false association pursuant to
To prevail on a false-association claim under
To survive the motion to dismiss, Coral Ridge must plausibly plead that the use of its trademark created a “likelihood of confusion” in consumers.26 As noted above, Coral Ridge contends that, by designating its trademarked name as a “hate group” on the Hate Map, SPLC created a likelihood of confusion in the public as to Coral Ridge’s “association” with the other groups listed on the Map. Thus, the court begins its analysis by determining the meaning of the phrase “likelihood of confusion as to the ... association” in the statute.
As discussed at length above, SPLC used Coral Ridge’s trademark to criticize its stance on homosexuality; by doing so, it engaged in speech on a matter of public concern--a core focus of the First Amendment’s protections. The Lanham Act must be construed narrowly to avoid impinging on speech protected by the First Amendment. Univ. of Alabama Bd. of Trustees v. New Life Art, Inc., 683 F.3d 1266, 1277 (11th Cir. 2012). As a result, courts applying the Lanham Act must carefully “weigh the public interest in free expression against the public interest in avoiding consumer confusion.” Id. (quoting Cliffs Notes, Inc. v. Bantam Doubleday Dell Pub. Grp., Inc., 886 F.2d 490, 494 (2d Cir. 1989) (internal quotations omitted). Ordinary applications of trademark law--such as where a seller uses another’s trademark to trick consumers into buying his own goods--do not risk the suppression of highly protected speech. However, when trademark law is used “to obstruct the conveyance of ideas, criticism, comparison, and social commentary,” the risk of such suppression is great. Radiance Found., Inc. v. N.A.A.C.P., 786 F.3d 316, 321–22 (4th Cir. 2015). Conflict with the First Amendment is avoided “so long as [interpretation of] the Act hews faithfully to the purposes for which it was enacted.” Id. at 322 (citing Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900 (9th Cir. 2002)).
The trademark protections in
Mindful of these principles and purposes, the court finds that
Applying the proper definition of “association,” the court holds that Coral Ridge has not alleged a likelihood of confusion as to its “association” with the Ku Klux Klan and other criminal and violent hate groups. Nothing in the complaint suggests that the public is likely to be confused into believing, based on SPLC’s use of Coral Ridge’s trademark on the Hate Map and in its “hate group” designation, that Coral Ridge has an actual relationship any other group on the Map, let alone the criminal and violent ones.27
In sum, Coral Ridge has failed to allege the “likelihood of confusion” requirement
C. Title II Discrimination Claim Against the Amazon Defendants
Coral Ridge claims that, by denying it access to the AmazonSmile charitable-giving program, Amazon and AmazonSmile violated the ban on religious discrimination in places of public accommodation that is codified in Title II of the Civil Rights Act of 1964. Title II provides: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, рrivileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
Applying the alleged facts to Title II, Coral Ridge asserts that its theory of liability is as follows: the Amazon defendants are places of public accommodation subject to Title II. See Am. Compl. (doc. no. 40) at ¶ 150. One of the “service[s],” “privilege[s],” and “advantage[s]” that the Amazon defendants provide as places of public accommodation is the ability to receive charitable donations through the AmazonSmile program. Id. at ¶¶ 14, 160. The Amazon defendants excluded Coral Ridge from accessing that service, privilege, and advantage--that is, from receiving donations through the AmazonSmile program--because SPLC classified Coral Ridge as a “hate group.” Id. at ¶¶ 23-24. The “hate group” designation by SPLC is based on Coral Ridge “oppos[ing] homosexual conduct.” Id. at ¶¶ 61, 154. Coral Ridge’s opposition to homosexual conduct, in turn, is based on its religious beliefs. Id. at ¶ 155.
In sum, Coral Ridge’s theory is that, by excluding it from receiving charitable donations due to its “hate group” designation--which SPLC based on Coral Ridge’s religious opposition to homosexual conduct--the Amazon defendants discriminated against Coral Ridge based on its religion, in violation of Title II.
To prevail, Coral Ridge must overcome three successive hurdles. First, it must plausibly allege that the Amazon defendants operate as a “place of public accommodation” within the meaning of Title II.
As explained below, Coral Ridge’s claim fails. Even if it were assumed that the Amazon defendants are places of public accommodation subject to Title II, seeking to receive donations through the AmazonSmile program does not qualify as a service, privilege, or advantage, etc. protected by the statute’s anti-discrimination prohibition. This is because the Amazon defendants limit the ability to receive such donations exclusively to
1. Public Accommodation
The parties dispute whether the Amazon defendants are “place[s] of public accоmmodation” under Title II and are thus subject to the statute’s requirements.
“(1) [A]ny inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
“(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
“(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
“(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.”
The scope of what constitutes a place of public accommodation “is to be liberally construed and broadly read” with “open minds attuned to the clear and strong purpose of” Title II. Miller v. Amusement Enters., Inc., 394 F.2d 342, 349 (5th Cir. 1968).28 The “overriding purpose” of Title II is to eliminate “the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.” Daniel v. Paul, 395 U.S. 298, 307-08 (1969).
The Amazon defendants contend that their websites are not places of public accommodation within the meaning of Title II because the statute applies to only physical facilities. By contrast, Coral Ridge alleges that the Amazon defendants are places of public accommodation because they fall under the category of places of “exhibition or entertainment.”
Whether internet-based businesses--or the Amazon defendants in particular--are preсluded from being places of public accommodation under Title II is an issue of first impression. It is a difficult one, at that. On the one hand, the statute’s use of the term “place” and references to “facilit[ies],” physical structures, and “physically located” establishments suggest that “places of public accommodation” might be limited to “actual, physical places and
Ultimately, the court need not resolve whether the Amazon defendants are places of public accommodation within the meaning of Title II. Even if it were assumed that, as Coral Ridge alleges, they are covered by the statute as places of “exhibition or entertainment,” the Title II claim would still fail for two independently sufficient reasons discussed below.
2. Denial of Services, Privileges, or Advantages
Assuming, without deciding, that the Amazon defendants are places of public accommodation, the court turns next to the question whether Coral Ridge plausibly alleges that it has been denied “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, [or] accommodations” of the Amazon defendants as places of public accommodation.
The court begins its analysis with two premises. First, Title II is “not limited to proscribing discrimination only as to the enjoyment” of the goods, services, privileges, etc. that “make the establishment a place of public accommodation.” United States v. DeRosier, 473 F.2d 749, 752 (5th Cir. 1973). In DeRosier, the court held that Title II not only protected access to the juke box, shuffle board, and pool table that converted the bar into a “place of entertainment”; rather, it protected the enjoyment of all the bar’s goods, services, etc. See id. at 751-52. Applying this principle here, the court concludes that Title II’s ban on discrimination extends beyond the enjoyment of the video, audio, and book selling, downloading, and streaming activities that Coral Ridge asserts--and this court assumes, arguendo--makes the Amazon defendants public accommodations as “place[s] of exhibition or entertainment.”
The second premise is that “it is the traditional understanding of public-accommodation laws that they provide rights for customers,” rather than, say, the providers of goods or services. PGA Tour, Inc. v. Martin, 532 U.S. 661, 692 (2001) (Scalia, J., dissenting) (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S. 557, 571 (1995) and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)). As the Supreme Court pointed out in Hurley, the history of public-accommodation laws
Combining these two premises, the court concludes that it is clear that, while a viable Title II plaintiff need not be denied the good, service, or privilege, etc. that makes the defendant establishment a place of public accommodation, see DeRosier, 473 F.2d at 752, in the typical Title II case, consistent with the traditional understanding of public-accommodations laws, he is denied enjoyment of some good, service, or privilege, etc. in his capacity as a customer. Consequently, Coral Ridge’s claim does not fail just because the activity at issue--receiving donations--is different from the activities that Coral Ridge alleges makes the Amazon defendants places of public accommodation (book, music, and video sales, streaming, etc.). Nevertheless, what remains unclear is whether Title II’s protections extend to a plaintiff, such as Coral Ridge, who is seeking to receive donations from a place of public accommodation, and thus not acting as a potential “customer” in any ordinary sense of the word.
i. Caselaw
It is an open question whether Title II covers the “enjoyment of” goods, services, privileges, etc. by a plaintiff other than a potential customer of a public accommodation. Some lower courts have held that federal public-accommodation laws protect exhibitors at a safari convention, see Impala African Safaris, LLC v. Dall. Safari Club, Inc., 2014 WL 4555659, at *6 (N.D. Tex. Sept. 9, 2014) (Fish, J.) (Title II), or physicians seeking medical-staff privileges at a hospital, see Hetz v. Aurora Med. Ctr. of Manitowoc Cnty., 2007 WL 1753428, at *11-12 (E.D. Wis. June 18, 2007) (Callahan, Jr., M.J.) (Title III of the Americans with Disabilities Act of 1990); see also Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113, 122 (3d Cir. 1998) (Title III). Conversely, other courts have held that a public-accommodation law protects only customers or patrons of a public accommodation, not camp counselors, see Bauer v. Muscular Dystrophy Ass’n, Inc., 268 F. Supp. 2d 1281, 1291-92 (D. Kan. 2003) (Brown, J.) (Title III), and that Title II does not protect taxicab services seeking to “‘provide’ services at, not merely enjoy the benefits of access to,” a mall transit station, Gold Star Taxi and Transp. Serv. v. Mall of Am. Co., 987 F. Supp. 741, 752-53 (D. Minn. 1997) (Magnuson, J.). None of
Of all the existing caselaw on the issue, the Supreme Court decision, PGA Tour, Inc. v. Martin, is the most instructive as to whether Title II extends beyond customers. 532 U.S. at 679-81. Critically, as elaborated below, Martin teaches that, regardless of whether Coral Ridge constitutes a customer in any ordinary sense of the word, it is not protected by Title II, because the ability to receive donations through the AmazonSmile program is not a service, privilege, etc. that is open to the public.
In Martin, the Court confronted--without deciding--the question whether the Americans with Disabilities Act’s analogous prohibition on discrimination in public accommodations (Title III of the act) applies to only “clients or customers” of public accommodations. Id. at 679. Although Title III of the Americans with Disabilities Act and Title II of the Civil Rights Act of 1964 have their differences, the texts of the two statutes are quite similar. Mirroring the language of Title II, Title III provides:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ... .”
42 U.S.C. § 12182(a) .
Title III enumerates a similar, yet more extensive, list of entities that qualify as “public accommodations,”
The plaintiff in Martin was Casey Martin, a professional golfer with a disability that limited his ability to walk. He alleged that the PGA Tour violated Title III of the Americans with Disabilities Act by prohibiting him from using a golf cart while participating in its golf tournaments. The PGA Tour conceded that its golf tournaments were conducted at places of public accommodation. See id. at 677.
Nonetheless, it argued that Title III did not protect Martin because he was a competing golfer, rather than a spectator consuming the entertainment. See id. at 678. More specifically, the PGA Tour contended that Title III “is concerned with discrimination against clients and customers seeking to obtain goods and services at places of public accommodation,” not a professional golfer such as Martin, who “is a provider rather than a consumer of the entertainment that [the PGA Tour] sells to the public.” Id. (internal quotation marks omitted).
The Martin Court did not decide whether Title III was limited to “clients and customers” of public accommodations, because it determined that Martin qualified as a client or customer of the PGA Tour. Id. at 679-80. The Court explained that the golf tournaments offered “at least two ‘privileges’ to the public--that of watching the golf competition and that of competing in it.” Id. at 680. In other words, during its tournaments, the PGA Tour “may not discriminate against either spectators or competitors on the basis of disability.” Id. at 681.
The Court offered four interrelated reasons why Martin was a client or customer and thus protected by Title III. First, it highlighted that Martin paid a $ 3,000 entry fee for a chance to compete in the tournament. See id. at 679. Second and most importantly, the Court stressed that competing in the PGA Tour
Martin’s reasoning shows that Title II does not cover Coral Ridge’s attempt to receive donations through the AmazonSmile program. Crucially, unlike in Martin, the ability to receive donations through the AmazonSmile program is not “a privilege that [the Amazon defendants] make[] available to members of the general public.” Id. To register to receive donations through the AmazonSmile program, the entity must, among other eligibility requirements, be a
Additionally, this case is distinguishable from the Daniel decision on which Martin relied. Receiving money donations through the AmazonSmile program is nothing like participating in a sport or other activity while visiting an open-to-the-public “232-acre amusement park with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar.” Daniel, 395 U.S. at 301.32 And because,
To summarize, the Martin Court refused to foreclose the possibility of a federal public-accommodations law protecting noncustomers, and embraced a capacious conception of a protected “customer” that extends beyond the everyday meaning of the word, such that it encompasses competitors in a professional golf tournament. See Martin, 532 U.S. at 695 (Scalia, J., dissenting) (“[N]o one in his right mind would think that [professional baseball players] are customers of the American League or of Yankee Stadium.”). The Martin Court also embraced a liberal understanding of what qualifies as available to the general public. See id. at 697. Nevertheless, as expansive as the Court’s reading of Title III of the Americans with Disabilities Act was, Martin still supports concluding that Coral Ridge is not covered here by the similarly worded Title II of the Civil Rights Act of 1964, because the ability to receive donations through the AmazonSmile program is simply not “available to members of the general public.” Id. at 680.
ii. Text and Structure of Title II
The text and structure of Title II reinforce the above-stated conclusion: The statute does not protect the ability to receive donations through the AmazonSmile program, given that this ability is not open to the public. Specifically, the statute provides that an establishment qualifies as a place of public accommodation governed by Title II only if it “serves thе public.”
public. Moreover, the fact that opening an entity up to “customers or patrons” triggers the application of
Finally, even if one could conceivably read
Here, interpreting
Coral Ridge argues that applying
So, even if Coral Ridge’s reading of the statute to cover its claim were plausible, such an interpretation would raise serious constitutional problems under the
In conclusion, the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation” does not encompass the ability to receive donations through the AmazonSmile program. This conclusion stems from the reasoning of Martin and text and structure of
3. Discrimination Based on Religion
Even if
i. Disparate Impact
Coral Ridge asserts a disparate-impact theory of discrimination. See Pl.’s Resp. to Amazon Defs.’ Mot. to Dismiss (doc. no. 52) at 8-9. “In contrast to a disparate-treatment case, where a plaintiff must establish that the defendant had a discriminatory intent or motive, a plaintiff bringing a disparate-impact claim challenges
Neither the Supreme Court nor Eleventh Circuit has determined whether
This court need not resolve the open question, for Coral Ridge has not plausibly plead a prima-facie case of disparate-impact discrimination.
To make out a prima-facie case under a disparate-impact theory, a plaintiff must show that the defendant’s challenged policy or practice has a “significantly disparate impact” on members of a protectеd group. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657-58 (1989), superseded by statute on other grounds,
Still, at this motion-to-dismiss stage, Coral Ridge must plausibly allege--not prove--only a prima-facie case of disparate impact. A plaintiff “should be afforded the opportunity of discovery before he is required to present detailed statistics to the court.” Forsyth v. Univ. of Ala. Bd. of Trs., 2018 WL 4517592, at *6 (N.D. Ala. Sept. 20, 2018) (Proctor, J.). Accordingly, all Coral Ridge must do is allege “some statistical disparity, however elementary.” Brady v. Livingood, 360 F. Supp. 2d 94, 100 (D.D.C. 2004) (Leon, J.).
Coral Ridge does not meet its burden because it does not allege even an elementary statistical disparity; indeed, its amended complaint makes no factual allegations whatsoever of any “disproportionately adverse effect” on religious or Christian groups. Inclusive Cmtys., 135 S. Ct. at 2513.35 The Amazon defendants’ challenged policy or practice is their eligibility requirement for the AmazonSmile program that excludes any organization that SPLC classifies as a “hate group.” See Am. Compl. (doc. no. 40) at ¶¶ 23-24, 44. Coral Ridge, a “Christian ministry,”
Despite these pleading defects, Coral Ridge maintains that there is a disparate impact because it was excluded from the AmazonSmile program based on its religious beliefs, whereas
In sum, Coral Ridge’s allegation that its religious beliefs caused it to be deemed a hate group and thus excluded from AmazonSmile, without any allegations indicating that Christian or religious organizations are disproportionately deemed--or likely to be deemed--hate groups and thus excluded, is not enough to allege plausibly a prima-face case of disparate impact.
ii. Intentional Discrimination
Coral Ridge further argues that, even if
Second, Coral Ridge argues that an inference of intentional discrimination is supported by its allegation that the “SPLC placed [Coral Ridge] on the Hate Map because of [Coral Ridge’s] religious beliefs regarding LGBT issues.” Pl.’s Resp. to Amazon Defs.’ Mot. to Dismiss (doc. no. 52) at 10 (citing Am. Compl. (doc. no. 40) at ¶¶ 56-58). The court accepts as true that SPLC designated Coral Ridge as a “hate group” because of its beliefs about LGBT issues, and that these are religious beliefs for Coral Ridge. Yet, the fact that Coral Ridge’s opposition to homosexual conduct happens to be rooted in its religious beliefs does not mean that SPLC targeted Coral Ridge because of its religious beliefs, as opposed to its belief, full stop, regardless of whether that belief is religiously rooted. Moreover, Coral Ridge’s allegation that the designation was because of its religious beliefs need not be accepted, because it is tantamount to the legal conclusion of intentional religion-based discrimination. See Oxford Asset Mgmt., Ltd., v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (explaining that, at the motion to dismiss stage, the court need not accept as true “legal conclusions masquerading as facts”).
Third, Coral Ridge alleges that “Amazon (not SPLC) makes the ultimate decision as to who may or may not participate in the AmazonSmile program.” Pl.’s Resp. to Amazon Defs.’ Mot. to Dismiss (doc. no. 52) at
Finally, Coral Ridge contends that: “Even if Amazon were to argue that there was no intent to discriminate prior to this lawsuit being filed, at this point in the litigation, Amazon has been on notice of the issues in this case for months now and could easily have made this case go away by simply permitting [Coral Ridge] to be part of the AmazonSmile program. Amazon’s continued refusal to do so, especially in light of the expense of defending this litigation, certainly indicates Amazon’s intent to continue discriminating.” Id. Coral Ridge is basically arguing that the Amazon defendants’ refusal to acquiesce to its litigation demands somehow converts its exclusion from the AmazonSmile program into intentional discrimination. This argument lacks merit.
Accordingly, Coral Ridge does not plausibly allege intentional discrimination based on religion.
***
While
Coral Ridge cannot force the Amazon defendants to donate money to it. Its
V. CONCLUSION
The court should not be understood as even suggesting that Coral Ridge is or is not a “hate group.” It has merely held that SPLC’s labeling of the group as such is protected by the
DONE, this the 19th day of September, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Notes
Such a broad interpretation of religion-based disparate-impact claims would conflict with the Supreme Court’s admonition that policies “are not contrary to the disparate-impact requirement unless they are artificial, arbitrary, and unnecessary barriers.” Inclusive Cmtys., 135 S. Ct. at 2512 (internal quotation marks omitted). Furthermore, such an interpretation would be contrary to the text of
Granted, a plaintiff might be able to define his class as members of a particular branch, strand, denomination, sect, etc. of a religion, such as Sufi Muslims, Orthodox Jews, or Lutheran Christians. However, even if the court construed Coral Ridge’s complaint to identify its protected class as evangelical Christian organizations, it still does not make the factual allegations that evangelical Christian organizations are disproportionately deemed--or likely to be deemed--“hate groups” and thus excluded from the AmazonSmile program. See Am. Compl. (doc. no. 40) at ¶ 31 (describing Coral Ridge’s founder as an “evangelist”). The bottom line is that, even is assumed that