United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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
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 ¶
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.
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.
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. ¶ 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