When Zeal Outstrips Reason: Second Circuit Upholds Judgment Stemming from Website’s Publication of Allegations of Child Sexual Abuse

Powell v. Jones-Soderman and Foundation for the Child Victims of Family Courts, No. 20-532-CV (2nd Cir.) February 26, 2021.


The United States Court of Appeals for the Second Circuit recently upheld a Connecticut federal court judgment that the founder of a child advocacy foundation had libeled a Connecticut father when, during pending divorce proceedings, she published on her website allegations that the father had committed child sexual abuse. 

On appeal, Jones-Soderman argued that the trial court erred in finding her liable because proof of the falsity of her statements was lacking, and such proof was necessary to overcome her First Amendment defense. Moreover, she said that the trial court failed to give consideration to her good faith belief that she was publishing the truth.  

While the First Amendment may protect commentary on matters of public interest, no such protection extends to demonstrably false statements, which the appellate court found were amply examined by the federal trial court in taking testimony and in admitting to the record state court findings that the allegations of sexual abuse were without merit.  

Jones-Soderman is not entitled to reliance on an “actual malice” standard for publication of defamatory material, the Second Circuit found, but even if she were, that standard would have been met, and it would negate any qualified privilege she might have.  

That Jones-Soderman published statements about the plaintiff when in his ex-wife’s employ in a custody battle and with knowledge that clinicians, state authorities, and the state court had found the abuse claims without foundation.  No qualified privilege may serve as shield in such circumstances, nor may a “good faith belief” in the truth of the published statements be invoked where Jones-Soderman knew of evidence contradicting the claims.

Jones-Soderman’s status as a mandated reporter of child abuse is of no moment with respect to the facts in this case, particularly where no complaint to Child Protective Services was ever made.

Powell v. Jones-Soderberg, No. 20-532 (2nd Cir.)

“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.

Supreme Court Holds Federal Officials May Be Liable Individually for Damages for Violations of the Religious Freedom Restoration Act


Tanzin, et al. v. Tanvir, et al., No. 19-71.  Opinion issued December 10, 2020.


The Religious Freedom Restoration Act (“RFRA”) was Congress’ attempt to re-introduce the highest standard of review for analyses of the constitutionality of laws that burden religion.  To survive a RFRA challenge, a measure that substantially burdens religious exercise must serve a compelling government interest by the least restrictive means. 

Prior to the enactment of RFRA, Employment Division v. Smith, 494 U.S. 872 (1990), a decision that remains both widely criticized and widely discussed, held that in general there is no constitutional offense to be found in generally applicable neutral laws that may incidentally burden religion. Enacted in 1993, RFRA was intended to restore the higher standard of review that Smith was perceived to have eroded.  

The scope of available remedies provided but not enumerated in RFRA is the subject of the case just decided, in which the plaintiffs objected to the government’s having placed them on “no fly” lists because, they asserted, they refused to act as informants for religious communities for the Federal Bureau of Investigation.  

Plaintiffs sued federal officials in their individual capacities.  Claims for injunctive relief were mooted by their removal from “no fly” lists, but plaintiffs would not abandon their claims for money damages.

The trial court that dismissed the claims for monetary damages was reversed by the United States Court of Appeals for the Second Circuit, which concluded that the language of RFRA providing “appropriate relief” to claimants and permitting actions against “the government” includes federal officials in their individual capacities.  The Supreme Court has agreed. 

Justice Thomas has proffered a textual analysis in support of the Court’s decision to reject the government’s argument that “government” as used in RFRA is limited to acts of officials in their official capacities, and that “government” cannot extend to the individual assets of federal employees which would be reached to satisfy judgments.

An ordinary and limited meaning of a word in a statute changes where Congress chooses to change the use of the word, Justice Thomas observed.  RFRA expands the definition of “government” to include officials or persons acting under color of law.

Officials are “persons” who are answerable under RFRA and judgments against them can be considered to be relief against the government.

Moreover, the “under color of law” language that appears in RFRA echoes the language of a principal civil rights statute, 42 U.S.C. Section 1983, which has been interpreted to apply to suits against officials in their official capacities. 

In general, “appropriate relief” may be fashioned according to context, but from common law forward money damages against officials have been available even where the sovereign itself is immune from suit.

In addition, although the 1988 Westfall Act precludes common law claims against federal officials, constitutional and statutory remedies are preserved.

Just as the language of 42 U.S.C. Section 1983 is an appropriate source of comparison for analysis of the scope of a cause of action under RFRA, so does the availability of money damages under Section 1983 serve as support for recognizing claims for money damages under RFRA. 

This is all the more apt, Justice Thomas states, where Section 1983 permits relief for violations of First Amendment interests.  In that RFRA was intended to return the law to the status quo ante Smith, monetary damages should be available in service of that end, to re-establish and to maintain a full panoply of relief.  

Congress did not limit redress under RFRA to equitable remedies, although it could have, and it is plain that such remedies will not be adequate, and hence not appropriate, Justice Thomas concluded, where costs have been incurred and losses occasioned which cannot be cured by any form of injunctive relief.

Neither the spectre of separation of powers concerns nor the desire for a presumption against monetary damages, as raised by the government, can transform those questions into matters for judicial intervention, the Court continued, where addressing such questions is the province of the legislative branch. 

With policy soundly committed to Congress, the Court noted that its decision does not in any way diminish the availability of qualified immunity defenses. 

JustLawful Observation:  The brevity of this opinion ought not be confused with the scope of its potential reach.  At a minimum, it will have all officialdom on its toes when it comes to matters impacting religion.

19-71 Tanzin v. Tanvir (12_10_2020)