NY Times Uses Anti-SLAPP Law To Sue Guy Who SLAPPed It

In early 2020, Peter Brimelow, the founder of the incredibly sketchy site VDARE, sued the NY Times for calling him an open white nationalist" among other similar things. Brimelow and VDARE have only spent two decades or so pushing for ethno nationalism," that America is not a melting pot," and that we need to preserve and celebrate the distinctive culture of America." Also diversity per se is not a strength, but a vulnerability." It also claims that it's fighting to keep America American." Those all come from his website.

I mean, anyone with half a brain can see all of that and come to the opinion that Brimelow is an ignorant, bigoted piece of trash. But apparently, he wants to draw the line at open white nationalist" and that VDARE is an anti-immigration hate website."

The lawsuit did not go well. Less than a year after it was filed, the judge dismissed it easily. As the judge noted, calling someone a white nationalist is a statement of opinion. The judge actually notes that referring to him as an open white nationalist" without any links potentially pushed the opinion over to fact, because the open" part implied that he had embraced the term, but since the Times deleted open" and linked to SPLC, it changed it to opinion:

To some, it may be essentially synonymous with anti-immigration," a descriptor that Plaintiff cannot plausibly deny; to others, it may be synonymous with white supremacist," which suggests a belief in a racial hierarchy that is not specific to the United States. There is no single, precise understanding of the term white nationalist" that is falsifiable such that The Times's characterization of Plaintiff as such constitutes a statement of fact. Furthermore, the link to the SPLC's website, as objectionable as Plaintiff finds it, provides the previously missing underlying basis for the characterization. Therefore, the Court finds that the final version of the January Article referring to Plaintiff as a white nationalist" presents only non-actionable opinion.

There's also the problem of showing actual malice - meaning did the NY Times know that it was false to call him that when it did - and the court... says that's not going to fly.

Plaintiff must plausibly allege that The Times knew, or recklessly ignored information suggesting, that he did not hold white nationalist" views, but published that characterization anyway. Plaintiff's criticism of The Times's apparent acceptance of the SPLC's characterization and disregard of Plaintiff's objections notwithstanding (see Pl. Opp. 16-17), there is ample basis in the material of which the Court has taken judicial notice for The Times to reasonably have deemed Plaintiff's views as falling within a broad colloquial understanding of the term white nationalist." The Times's decision not to validate Plaintiff's preferred characterization and the differences he perceives between white nationalism" and civic nationalism" does not constitute recklessness. Rather, The Times was within its right to base its description of Plaintiff on its own evaluation of Plaintiff's published writings and other public commentary and on the analysis of an organization The Times perceived as having relevant expertise, namely the SPLC.

So for this and a few other reasons, the court tossed the case. Brimelow appealed and in November the 2nd Circuit upheld the lower court ruling dismissing the case. Brimelow filed a cert petition to the Supreme Court, which (quite reasonably) refused to hear the case.

That takes us up to now. Last week, Reuters reported that the NY Times was now suing Brimelow under NY's anti-SLAPP law. The article is next to useless, as it talks about how it's a first of a kind lawsuit, but doesn't really explain how, or bother to link to the actual filing. Thankfully, the amazing @puppyleak user on Twitter found the filing for me after my own docket searching came up empty.

So, now we can dig in and explain why this is a first of its kind" lawsuit and provide the info Reuters skipped over. As you may recall, in November of 2020, NY finally (after years and years of trying) amended its anti-SLAPP law to be more like the gold standard of anti-SLAPP laws (before that it covered only a very, very narrow slice of lawsuits).

In the recent trial in which the NY Times defeated Sarah Palin's bogus defamation lawsuit, the judge had noted that the newly amended anti-SLAPP law could apply to cases that started before the law was changed. That is, the anti-SLAPP law could be used retroactively.

The case from Brimelow was filed before the amended anti-SLAPP law, and the lower court's dismissal came basically a few weeks after the law was changed, but at a point when all of the briefing had been done. In other words, unlike in a normal anti-SLAPP situation, the NY Times was unable to use the anti-SLAPP law during the case itself to get it kicked out and to get attorney's fees.

So, what's new here is that the NY Times is now taking the rulings of a few judges in NY, who have said that the law is retroactively applicable, and arguing that Brimelow's case was a SLAPP, and he should pay for their fees. Because this option wasn't available at the time they sought to dismiss the case, they are now filing this new case in order to take advantage of that aspect of the law.

Thus, this is unique, as you rarely see an anti-SLAPP law used as a plaintiff in filing a new lawsuit, but it's the unique situation in New York of the expanded anti-SLAPP law combined with the agreement among judges that it applies to open cases that began prior to the expansion of the anti-SLAPP law. So, the NY Times had to wait until everything played itself out, and then the only way to seek to use the anti-SLAPP law to recover its costs was to file this new, separate lawsuit.

If the NY Times wins, the new NY anti-SLAPP law says that Brimelow must pay its legal fees.

Oh, and there is one small tidbit in the lawsuit that isn't going to help Brimelow. The complaint notes that while waiting for the Supreme Court to respond to his cert petition, Brimelow wrote an article admitting that even though there was almost universal skepticism" about his case, he was keeping it going because [t]he paper's arrogance, dishonesty and malevolence are simply beyond words" and noting who does it think it is?" Also: the New York Times case has just infuriated me." All of that... is not a good look if you don't want to be shown to be filing SLAPP suits in which you're suing someone out of personal animus, rather than legitimate legal claims.