Thursday, April 16, 2015

The SPLC, PayPal, and Tortious Interference

Kyle Bristow


Dr. Greg Johnson of Counter-Currents Publishing declared on his website recently that his project is “under siege” by the Southern Poverty Law Center, which—along with other leftist outfits—is putting pressure on PayPal and Amazon to cease permitting him to raise funds and sell books.
Dr. Johnson relays in his article that Heidi Beirich “has been writing letters to Amazon.com and PayPal to get them to stop doing business with Counter-Currents.  The SPLC wants to put us out of business because they fear the ideas that we advocate.”  He also notes that just days after the Washington Post ran an article about the matter, Amazon shut down Counter-Currents’ Amazon Affiliate Marketing account, which earned Dr. Johnson approximately $6,000.00 per year when viewers of his website purchased goods from Amazon after visiting that website.
A simple search on the Hatewatch blog of the SPLC shows that the SPLC has attempted to shame Amazon and PayPal into ending relations with rightist entities a number of times now.  On January 8, 2015, the SPLC yelped that Amazon permits Counter-Currents and VDARE to earn money by referring viewers of their websites to Amazon; on April 1, 2015, the SPLC yapped that PayPal was not terminating the accounts of organizations of which the SPLC had previously complained; and on March 21, 2011, the SPLC whined that Amazon does not pander pornography but dares to disseminate books written by political dissidents.  For the last one, the SPLC took vehement offense to the mere availability for sale of my purely fictional novel, White Apocalypse, which was praised by no less than five Ph. D. scholars, while The Occidental Dissent described it as being “A thrilling and intelligent story with epic ramifications.”
The SPLC’s attacks on our organizations’ revenues via Amazon and PayPal is not the first time they have attempted to interfere with the pecuniary interests or liberties of those whom they disagree politically.  For example:
The SPLC gloated on their Hatewatch blog that a political dissident objects to the “panic” created by the SPLC outing political dissidents—which clearly demonstrates that the agents of the SPLC know what they are doing and are thrilled with the effects that they are having.
The issue now presented is whether the SPLC can be sued for interfering with the pecuniary interests of those whom they find politically disagreeable.  Unfortunately, the answer is not simple due to the First Amendment to the United States Constitution.
Tortious interference with contract or business expectancy is a tort existing per the common law, and although most states treat it in a similar manner, there are some nuances from state-to state.  As such, an analysis would have to be undertaken on a case-by-case basis by a lawyer to determine whether a claim invoking it would be valid.  Generally, however, the following would need to be proven by the plaintiff:  (1) there existed a contact or future business relationship; (2) the tortfeasor had knowledge of the contract or future business relationship; (3) a breach of the contract or a termination of the future business potential occurred; (4) the breach or termination was caused by the tortfeasor through unjustified instigation; and (5) the plaintiff suffered damages due to the breach of the contract or termination of the future business potential.
The elements of the tort are mostly easily understandable by laymen; however, for purposes of whether an instigation was unjustified, the plaintiff can establish this element of the tort with (1) evidence of a per se wrongful act or (2) a lawful act committed with malice and without justification for the purpose of invading the contractual rights of the plaintiff.  Factors to be analyzed for this element include:  (1) the nature of the tortfeasor’s conduct; (2) the nature of the plaintiff’s interest; (3) the social utility of the plaintiff’s and the tortfeasor’s respective interests; and (4) the proximity of the tortfeasor’s conduct to the interference.
States are split as to whether the First Amendment bars tortious interference claims when politics is a motivation to cause pecuniary injury. See: Tucker, Robert.  “‘And the Truth Shall Make You Free’:  Truth as a First Amendment Defense in Tortious Interference with Contract Cases.”  24 Hastings Const. Law Q. 709 (1997).
The claim of tortious interference, however, has successfully been used against the Simon Wiesenthal Center in the past.  In McCalden v. California Library Assoc., 955 F.2d 1214 (9th Cir. 1990), David McCalden, a historical revisionist, entered into a contract with a public library to rent exhibit space to display materials about controversial subjects and a room to hold a discussion. The Simon Wiesenthal Center’s and American Jewish Committee’s representatives were alleged by McCalden to have contacted library officials to inform them that should the exhibit space and room be used by McCalden, a disruption would occur.  The City of Los Angeles passed a unanimous resolution to request that the library not permit McCalden to have his exhibit or room; the Los Angeles Police Department informed the library’s official in charge that it had received threats against his life if McCalden was permitted to use the library’s facilities; and the Simon Wiesenthal Center rented a room immediately adjacent to the one to be used by McCalden, and McCalden maintained that this was done so that leftist agitators would be in position to disrupt his program.  Due to the pressure, the library cancelled McCalden’s exhibit display and room reservation.
Instead of blogging about the transgressions that had been perpetrated against him, McCalden hired an attorney and went straight to federal court.  McCalden alleged breach of contract, tortious interference with contract, and state-specific and federal causes of action related to his constitutional rights being violated.  The trial court judge ruled in the defendants’ favor, and instead of blogging about his defeat in court, he appealed to the United States Court of Appeals for the Ninth Circuit—which is notoriously left-wing.
At the time of the appeal, McCalden had passed away, and his estate—managed by his widow, Viviana McCalden—continued to seek vindication. Even in death McCalden would not acquiesce.  The Ninth Circuit ruled that the trial court was incorrect to dismiss the tortious interference and breach of contract claims for procedural and substantive reasons that are outside the scope of this article.  Noteworthy, however, about the appellate case is that the Simon Wiesenthal Center attempted to raise the First Amendment as a defense.  Said the Ninth Circuit in pertinent part to this futile effort:  “Privately communicated threats have traditionally been punishable where they have ‘a reasonable tendency to produce in the victim a fear that the threat will be carried out.’”  McCalden at 1222 (quoting Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir. 1983).  The Ninth Circuit further opined,
That appellees [(Simon Wiesenthal Center)] were engaging in protected expressive activities at the same time and to the same end as the alleged threats of violence does not immunize appellees from liability for the alleged threats.  In Claiborne, the Court held that NAACP official Charles Evers could not be held liable for a public speech, but the Court stated unequivocally that individuals who “engaged in violence or threats of violence … may be held responsible for the injuries that they caused.”  Claiborne, 458 U.S. at 926, 102 S.Ct. at 3432.  Nor does the fact that appellees were politically motivated immunize them from liability if they in fact engaged in threats of violence.  The boycotters who threatened and engaged in violence in Claiborne were no less politically motivated than Charles Evers whose public speech the Supreme Court held to be protected by the First Amendment.  Id.; see alsoRankin v. McPherson, 483 U.S. 378, 386-87, 107 S.Ct. 2891, 2898, 97 L.Ed.2d 315 (1987) (“a statement that amounted to a threat to kill the President would not be protected by the First Amendment”).  Appellant [(McCalden)] may not be able to support the allegations in his complaint, but those allegations are sufficient to survive a motion to dismiss. (Ibid.)
After the Ninth Circuit ruled that the Simon Wiesenthal Center would not be able to worm its way out of liability short of a trial occurring, it petitioned the United States Supreme Court to review the appellate court’s ruling.  In Simon Wiesenthal Center for Holocaust Studies v. McCalden, 504 U.S. 957 (1992), the Supreme Court refused to review the case, and after this occurred, the Simon Wiesenthal Center settled out of court with McCalden’s widow for an undisclosed sum of money.
What distinguishes the SPLC’s antics from those of the Simon Wiesenthal Center’s in the McCalden case is that the SPLC is not overtly threatening when it tries to cause political dissidents to suffer pecuniary injury.  The alleged threatening nature of the Simon Wiesenthal Center’s actions is what permitted the Ninth Circuit to rule that the First Amendment could not be used by them as a shield insofar as threats of physical violence are outside the scope of that constitutional amendment.
Irrespective of whether the First Amendment applies, states differ as to whether truth is an absolute defense to the claim of tortious interference.  Courts have frequently stated that it is a matter for the factfinder to decide on a case-by-case basis insofar as the unique facts at issue will determine whether the interference was privileged as a matter of right.  See, e.g.,Krystkowkiak v. W.O. Brisben Companies, Inc., 90 P.3d 859, 864-65 (Colo. 2004) (“The First Amendment will not protect petitioning activity that is a sham, undertaken to harass an opponent rather than obtain relief from the government.  … To be protected, petitioning activity must legitimately be aimed at obtaining favorable government action.  … Those who exploit the inevitable delays, costs and inconveniences of the government process to punish their adversaries may not avail themselves to the First Amendment.”)  (Citations omitted.)
The Anti-Defamation League has also been sued for tortious interference—albeit unsuccessfully.  In Augustine v. Anti-Defamation League of B’Nai B’Rith, 75 Wis.2d 207 (Wis. 1977), the ADL successfully exerted moral pressure on a radio station to terminate a radio show host’s employment for permitting national socialists to appear on his program, use racial epithets, and not utilize the “panic button” to censor their commentary or to not provide a disclaimer at the end of the show that the opinions of the guests are not those of the radio station.  In this case, the Wisconsin Supreme Court held that the exerting of moral pressure is privileged per the First Amendment.
Daryle Lamont Jenkins of the leftist One Peoples Project and Jeffrey Imm, however, were successfully sued by the late David Yeagley for tortiously interfering with his contract to speak at an American Renaissance conference.  Jenkins and Imm were accused of using threats of violence to shut down the conference; neither raised a First Amendment defense, and Imm likely settled out of court—the case was dismissed against Imm not long after it was filed—while Jenkins was ordered to pay $50,000.00 after Yeagley’s attorneys successfully filed a motion for summary judgment.
The general rule of thumb, it appears, is that when illegal force is threatened or used by a political organization to successfully interfere with the pecuniary interests or rights of a political opponent, the victim can sue for tortious interference and the First Amendment clearly cannot be raised as an affirmative defense.  However, when a political organization merely uses moral pressure to successfully interfere with the pecuniary interests or rights of a political opponent, whether the victim can successfully sue for tortious interference would be determined by the facts unique to the case, as well as the substantive law of the state in which the case is being litigated.
Further, the nature of the relationship between the third-party and political dissident that is targeted for interference would be highly relevant:  if the SPLC or some other organization were to attempt to interfere with a political dissident’s non-political source of income for purely punitive reasons, that likely would not be protected by the First Amendment.  Lastly, whether the political dissident is a public or limited public figure would also be highly relevant, since private figures enjoy an expectation of privacy.
Notwithstanding the foregoing, defamation actions have successfully been utilized in the past by victims of the SPLC and ADL.  For example, Prof. Guenter Lewy sued the SPLC in 2008 for having libeled him, and the SPLC settled out of court for an undisclosed amount of money and issued a public apology and retraction.  Likewise, the ADL was sued for having defamed the Quigleys, a Roman Catholic couple, after their Jewish neighbors got into a sparring match with them over an extremely insignificant dispute; after a four-week jury trial in federal court, the plaintiffs were awarded a judgment in the amount of $10.5 million—which was nearly a quarter of the ADL’s annual budget at the time.
If one is wronged by an organization of “social justice warriors” on account of one’s political views, it would be advisable to consult in a timely manner with an attorney in the jurisdiction in which the injury occurred.  Lawsuits have been successfully brought against such organizations in the past, and will certainly be successfully brought against them in the future—especially since the left hands of these organizations many times do not know what the extreme left hands are doing.  (The torts of negligent retention, supervision, and training will need to be discussed another day.)
Instead of bringing our grievances to Internet forums, it could very well be better to bring them to court.  The Quigleys, Prof. Lewy, Yeagley, and McCalden would not beg to differ.
Kyle Bristow is an attorney licensed to practice law in Michigan and Ohio, and he has filed two amicus curiae briefs on behalf of the Traditionalist Youth Network, LLC:  Brief of Traditionalist Youth Network, LLC, as Amici Supporting the Appellants, DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (No. 14-1341) (Arguing that same-sex marriage is not a right recognized by the Western legal tradition) and Brief of Traditionalist Youth Network, LLC, as Amici Supporting the Appellants, Kolbe v. O’Malley, __ F.3d __ (4th Cir. 2015) (No. 14-1945) (Arguing that a ban on military-style weapons is unconstitutional).  His website can be viewed at www.KyleBristow.com.

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