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Hollander v. CBS News, Inc.

United States District Court, S.D. New York

May 10, 2017

ROY DEN HOLLANDER, Plaintiff
v.
CBS NEWS INC., MAJOR ELLIOTT GARRETT, NBCUNIVERSAL NEWS GROUP, LESTER DON HOLT, JR., KATHARINE BEAR TUR, CHARLES DAVID TODD, ANDREA MITCHELL, HALLIE MARIE JACKSON, KRISTEN WELKER, ABC NEWS DIVISION, THOMAS LLAMAS, CECILIA M. VEGA, JONATHAN DAVID KARL, NEWSHOUR PRODUCTIONS LLC, GWENDOLYN L. IFILL, JOHN YANG, LISA DESJARDINS, CABLE NEWS NETWORK, ABILIO JAMES ACOSTA, NEW YORK TIMES NEWSROOM, MEGAN M. TWOHEY, DAVID BROOKS, WASHINGTON POST NEWSROOM, and JENNA JOHNSON, Defendants.

          OPINION & ORDER

          PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE.

         Plaintiff Roy Den Hollander, an attorney proceeding pro se, brings this lawsuit against seven television and print news organizations and 17 journalists associated with them. Hollander styles these organizations as CBS News, Inc., NBCUniversal News Group, ABC News Division, NewsHour Productions LLC, Cable News Network, the New York Times Newsroom, and the Washington Post Newsroom. Hollander alleges that these news organizations are "enterprises" within the meaning of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"). He alleges that the news organizations and journalists violated RICO § 1962(c) in connection with their reporting of the 2016 United States presidential election. Specifically, Hollander alleges, the defendants promoted and disseminated “false and misleading news reports” or commentary concerning Donald Trump's candidacy for President. Each false and misleading news report, Hollander claims, was a predicate act of wire fraud supporting a claim of racketeering.

         The Court previously denied Hollander's application, during the election campaign, for injunctive relief against these defendants, on the grounds that Hollander sought a prior restraint, offensive to basic First Amendment principles. With the election over, Hollander has dropped his bid for injunctive and declaratory relief. Hollander continues, however, to pursue money damages.

         Defendants now move to dismiss Hollander's First Amended Complaint (“FAC”) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Their arguments include that the conduct that Hollander terms wire fraud is speech protected by the First Amendment, that Hollander has not suffered an injury in fact sufficient to confer standing to bring this lawsuit, and that his RICO claims are conclusory in various respects and otherwise fail to state a claim upon which relief can be granted.

         Each of these arguments is meritorious. Each requires dismissal of this lawsuit. In the interest of economy, the Court develops only one here: that dismissal is mandatory because the news reporting that Hollander assails as wire fraud is speech protected by the First Amendment of the United States Constitution for which civil damages to an offended audience are not available.

         I. Background[1]

         A. Hollander's Claims

         Hollander is an attorney who resides in Manhattan. FAC ¶ 25. He alleges that the defendant media organizations propagated false or misleading news reports and commentary regarding the Trump presidential campaign. As an exhibit to the FAC, he attaches a 59-page, single-spaced “sampling” of approximately 90 examples of such news reports or commentary. Each is accompanied by Hollander's explanation of why the report or commentary was, allegedly, false, misleading, or incomplete. See id., Ex. A.

         The first example in Hollander's sampling is representative of Hollander's critiques. Hollander there faults defendants CBS News, Inc. and its reporter, Major Garrett, for their coverage on October 3, 2016 of statements made by Donald Trump in Northern Virginia in response to a question by a Marine veteran regarding health care for U.S. veterans. Id. at 1. Hollander faults these defendants for “falsity, prevarication, or dissemblance” based on their failure to include in the coverage the fact that the Marine veteran afterwards described Trump's comments as “thoughtful” and stated that he “believe[d] [Trump] is committed to helping” veterans. Id.

         In a later example, also representative of his critiques, Hollander cites a July 28, 2016, column titled “The Democrats Win the Summer” by New York Times columnist David Brooks, a defendant in this case. There, Brooks assailed Trump for having “abandoned the Judeo-Christian aspirations that have always represented America's highest moral ideals” and called Trump a “morally untethered, spiritually vacuous man who appears haunted by multiple personality disorders.” Id. at 48-49. Hollander faults the New York Times and Brooks for “falsity, prevarication, or dissemblance” for failing to mention that “Trump often speaks of love and compassion in his speeches.” Id. at 49. Hollander adds that “Brooks has neither the qualifications nor facts necessary to conclude that Trump has mental disorders, is amoral or is spiritually empty.” Id.

         Hollander further asks the Court to “take judicial notice of the liberal bias of the mainstream media, which includes” the defendant media organizations and reporters. FAC ¶ 54.

         Hollander alleges that the defendants engaged in an act of wire fraud, constituting a RICO predicate act, each time they (1) “create[d] and cause[d] to be broadcast and disseminated false and misleading news reports concerning” candidate Trump; (2) “provide[d] and cause[d] to be broadcast and disseminated commentary based on a false set of facts or fail[ed] to reveal the factual basis for the assertion of the judgments on which the commentaries are based”; or (3) “lobb[ied] and cause[d] to be broadcast and disseminated lobbying on various news-talk shows in furtherance of their opposition to the Trump Candidacy.” Id. ¶ 26.

         Hollander alleges that the purpose of these allegedly false and misleading news reports and commentary was “to prevent Donald J. Trump from being elected President” and “to aid and abet Hillary R. Clinton in being elected President.” Id. ¶ 27. Hollander alleges that the media organizations are liable along with the authors of the reports and commentary “because these news organizations . . . instituted policies to aid and abet the schemes to undermine the Trump Candidacy with false and misleading information.” Id. ¶ 29. Hollander alleges the defendants aimed to “manipulate and rig this republic's electoral process, ” knowing that the public relies on the media “to be their surrogate observers of the Presidential campaigns, report back to them the material facts on both sides of the election battle, and provide professional judgments based on observed facts free of intentional falsehoods, prevarications, dissemblings or ideological biases.” Id. ¶ 30.

         As relief, Hollander seeks money damages for the costs he “incurred in investigating, preventing, and rectifying the defendants' frauds.” Id. ¶ VII.4. In the FAC, Hollander also sought (1) a declaratory judgment that defendants' conduct violated RICO; and (2) a permanent injunction prohibiting defendants “from continuing to create and cause to be broadcast and disseminated false and misleading news reports, commentaries and lobbying against the Trump Candidacy by requiring them to fact check their presentations, refrain from spinning out-of-context quotes by Trump and provide equal time to both sides.” Id. ΒΆ VII.1. The Court, however, has already rejected Hollander's bid for injunctive relief as seeking a prior restraint incompatible with the First Amendment. And Hollander acknowledges that, with the 2016 ...


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