[1.] Today’s ruling by Judge Morrison England, E.D. Cal.) In Crowley v. Faison allows a lawsuit against Black Lives Matter Sacramento and codefendants to proceed, based on “BLM’s posting of racist emails purportedly sent to BLM” by plaintiff—plaintiff claims, apparently with some evidence, that they were actually sent by someone impersonating her (who was later identified, as a result of a search warrant based on a criminal complaint, as likely to have been plaintiff’s ex-tenant). Let’s look at the facts:
On or about April 25, 2021, an email address purportedly assigned to Karra Crowley (crowleykarra64@gmail.com) sent the following email to BLM via its general (info@blacklivesmattersacramento.com) address.
Whomever it might concern
You guys are sick of being talked about on the news. Your guys are nothing more than a group of domestic terrorists. It’s easy to cry because you don’t want your way. You can’t have your way about something. [sic]It is impossible to make a difference in the world. EVER!!!! GROW THE FUCK UP. We matter!!
Karra Crowley
Crowley Properties
Defendant Faisson responded later that same day on behalf of BLM, using an email address, tanya@blacklivesmattersacramento.com, that apparently belongs to her:
We appreciate that you took the effort to contact us. However, we do not know you or your feelings. We are not interested in hearing from you about BLM.
The following reply was made by “Karra Crowley”, on April 26th, 2021.
We are both pillars of this community. Our children have been taught to hate African Americans !!!!. Your (sic) are nothing more than thugs, and your life is a low-life’s. Stop being so pathetic. You are not going to make a difference in the world. White people are the kings You are peasants!!!!
Another email with one sentence, “Let’s bring back slavery !!!!”” was sent a minute later.
The defendants then posted the emails above to BLM’s Facebook page at 3:57 PM on April 26, 2021 with the following explanation note:
Karra Crowley is an emailer to us. We thought it was time for her to become famous. Crowley Properties is her Roseville business, but she resides in Loomis.
Karra Crowley claims that she was contacted by her assistant 18 minutes later at 4:15 pm. She advised her to check out Crowley Properties and BLM’s Facebook pages as they had been “blowing up with hateful remarks and threats.” Ms. Crowley claims that she later looked at the pages but was horrified by the allegations made about her. According to Ms. Crowley, she sent Tanya Faison the following email response at 4:36 PM.
Tanya,
It is not me, I am not sure who sent those hateful email. It is not me and it isn’t even my email. People who know me will be able to tell that I won’t ever say these things and I don’t use such filthy language. Your false posts about me would be greatly appreciated.
Respectfully Karra Crowley
Although Ms. Crowley claims she didn’t receive a reply from Ms. Faison, the Defendants added this to BLM Facebook Page less than an hour later at 5:11 pm:
HER [Karra Crowley’s]INFORMATION HAS BEEN VERIFIED. I AM NOT GOING TO BE RESPONSIBLE FOR SHARING ADDRESSES AND PHONE NUMBERS BUT FOLKS … ESPECIALLY YOU LIGHTER HUED FOLKS COMING AND BEING DISRESPECTFUL … YOU NEED TO GET YOUR DUCKS IN A ROW BEFORE YOU COME HERE MAKING ACCUSATIONS
WE KNOW HER BUSINESS ADDRESS WE KNOW HER PO BOX
We know her and her husbands home.
ROSEVILLE, LOOMIS
Plaintiffs allege that they were subject to a torrent of hateful messages almost instantly after the Facebook posts by Defendants. These comments came in the form of voicemails, phone calls and Facebook postings. These comments included claims that Karra Crowley is “a sick racist freak”, and “a garbage person.” Others called for people to “not rent from her” and “support.” [a]This “disgusting” human runs this business.
Additionally, defendants had posted their own post within only two days, which was April 28, 2021, prompting 284 “Reactions,” 120″ comments and 183 “Shares.” Fox 40 News, an affiliate of the Sacramento television station, reached out to Mr. Crowley, who said he felt “compelled” to give an interview in order to minimize the damage. Karra Crowley was also interviewed and provided interviews for the Sacramento Bee newspaper, as well three other news channels.
Karra Crowley posted a comment to the Facebook page of Defendants, which responded directly to her posts. Here is her response on the 27th of April 2021 (the day after the first postings).
My name is Karra Crowley and I am NOT the person who wrote those despicable emails. The email crowleykarra64@gmail.com does not belong to me nor do I have any affiliation with it. I do not agree with the opinions expressed in these emails. Anyone who knows me will confirm this. To get the truth of it, find out who sent that email.
Karra Crowley got a threat of death via her home telephone number on the following day, April 28, 2021. Crowley saw the sign, which was written on white posterboard and attached to shovels that were inserted in the ground as a threat of burying her, placed on the property across from Crowley’s driveway. It read, “
KARRA — FUCK YOU!
*Be a decent person, it’s not that hard just like it’s not that hard to find someones (sic) address*
Christopher Crowley still received text messages containing extremely vile threats a month after his arrest. This May 25th, 2021 message illustrates the point.
Old man, you fucked with the wrong men. Your ugly wife is going to be killed first. She will be cut from the bottom of her stinky cunt, all the way to her throat. Then I’ll carefully remove her intestines. Next, I will go after your child. I’m going to open her stomach, then take her intestines and push them down her throat. Everyone knows exactly where they are. Ah yes. You might call the police, but I doubt they will be able help before I reach everyone.
Another text sent that day indicated that Crowley was “a dead lawyer and so are your cunt wives and daughters” and promised that “there would be a mass shooting at the lawyers.” [sic]Tomorrow’s office [with]Multiple dead” and said that “I might even kill your grandchild.” “You won’t even see it coming.”
Plaintiffs claim that Defendants are refusing to remove offensive content from BLM’s page on Facebook. Plaintiffs filed the present lawsuit on April 30, 2021, just four days after Defendants’ postings to that page….
[2.] The court concludes that plaintiffs must show “actual malice” by defendants. I disagree with that conclusion. Gertz v. Robert Welch, Inc. (1974), private-figure plaintiffs—as plaintiffs here are likely to be—only have to show negligence to recover proven compensatory damages (including identifiable business losses as well as emotional distress damages). MetabolifeAccording to the court’s case, it stated that “Because defendants’ speech dealt with a subject of public concern, Metabolife must prove that statements were false or made with actual malice” but I take this as a consequence of Metabolife’s incontrovertible status as a public figure. However, the court concluded that plaintiffs presented sufficient evidence to support even higher standards of “actual malice”.
The defendants correctly pointed out that Plaintiffs had to prove that both the challenged statements and their fabrication were false. Metabolife Int’l, Inc. v. Wornick (9th Cir. 2001)…. “[T]he actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term…. instead, [it] requires … that the statements were made with a reckless disregard for the truth.” Consequently, “[t]There must be enough evidence to support the conclusion that defendant had serious doubts about the authenticity of the publication. This is the SolanoCourt observed, that inference may prove the fact that defendant actually had serious doubts regarding the truthfulness of the statement. It would not be common for a defendant admitting such doubts. A court will usually infer actual malice from objective circumstances.
Plaintiffs complaint asserts that they “wrote nothing.” [n]or sent the emails posted by Defendants” and that Defendants’ statements that Karra Crowley sent the emails were false…. Karra Crowley wrote Tanya Faison, Defendant Tanya Faison direct and stated that Crowley had not sent the emails. She also explained that the email was not hers and that she used an address that did not belong to her. Crowley demanded that Faison remove all false information regarding her immediately.
Karra Crowley was not the only one who refused to respond. 35 minutes later, Karra Crowley received an email from BLM at 5:11 pm. This time, Crowley made a second posting stating that Crowley had been “verified” with Defendants having her address, home, and postal box numbers. Karra Crowley posted a second time on BLM’s Facebook page, disavowing her statements again and identifying the email address that made them. However, Defendants still refused to respond to the postings.
Plaintiffs claim that Plaintiffs have argued that the Plaintiffs Complaint, along with the attached exhibits from both sides to their motion papers, reveals that defendants knew of or were recklessly unaware of Ms. Crowley’s emails. Plaintiffs argue that it is impossible for anyone to send such degrading emails, as the inevitability suggests. AndTanya Faaison needed to attach Plaintiffs’ names and business information. Tanya Faison reported that Plaintiffs had been “verified”
Furthermore, these alleged “assurances”, were only given in a matter minutes After Karra Crowley had emailed Ms. Faison directly asking her to remove the false postings on grounds that she was not the author of the emails and they had not been sent from her address. The fact that the email purporting to come from Ms. Crowley was sent less than 2 hours later by Defendants supports the not-improbable conclusion that there had been no prior verification, despite Plaintiffs’ requests that their followers be “famous”. These events support the conclusion that defendants acted recklessly and with disregard for truth.
Last but not least, Plaintiffs remind us that “[w]What would the Defendants tell their friends to “make Plaintiffs famous”? The only plausible inference Plaintiffs draw is:
It is obvious that Ms. Crowley and her husband are trying to hurt their company. In other words, Defendants intentionally incited their friends to do harmful things to Plaintiffs by Defendants’ defamatory posts—which shows Defendants’ ill will/or hatred towards Plaintiffs.
The hateful slew of postings and messages that Defendants’ conduct engendered just that response—both personal threats to Plaintiffs, some of which were chillingly violent as described above, and threats to harm their business. [Note that this particular argument seems to me largely beside the point, given the court’s recognition above that “actual malice” doesn’t mean “ill will or hatred,” but focuses solely on what the defendants knew was false or likely to be false. -EV]
Given all of the above, in this Court’s view the postings, emails, and reasonable inferences therefrom show enough of a likelihood that Plaintiffs can demonstrate “actual malice” (through Defendants’ malicious/reckless behavior) to withstand the anti-SLAPP motion to strike on that basis….
[3.] The 47 U.S.C. was also rejected by the court. § 230 defense:
47 U.S.C. § 230 … provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” …. “§ 230(c) provides broad immunity for publishing content provided primarily by third parties.” If (i), the Act requires dismissal. [the defendant]You are a “provider” or user of interactive computer services. (iii) The information [the plaintiff]Holding [the defendant]The information provided by an additional content provider was considered liable. (iii). [the defendant]You are liable for the information as the “publisher” or speaker. In short, anyone who is defamed online can sue that speaker but cannot usually sue his messenger. …
[But i]mmunity under § 230 requires that the third-party provider, here the individual masquerading as Karra Crowley, have “provided” the emails to Defendants “Use the InternetOr another interactive computer service.” Batzel v. Smith (9th Cir. 2003). 2003).[I]The imposter may have intended that his/her emails be shared on BLM Sacramento’s facebook page. Direct“to the Facebook page”, but did not. These circumstances raise the legitimate question of whether or not the imposter intended to publish on the Internet. Without a finding, the Act’s immunity is inapplicable. {The requirement that material be supplied with the intent to be posted online makes perfect sense, since: Batzel v. Smith (9th Cir. (9th Cir. 2003). This is because “users or providers of interactive computing services” could, with impunity, post material that they know was not intended to go on the Internet. This could result in “nearly limitless immunity for speech never meant to be broadcast over the Internet.”}
Karra Crowley informed Defendants she didn’t author the emails and that they never came from her address 24 hours after her last email was published. Plaintiffs continued to receive hateful and dangerous messages from Defendants, even though they refused to remove the offensive posts from the Facebook page. The most disturbing of these messages, which graphically depicted how he or her was going kill Karra Crowley’s daughter and sent it almost one month later, is the one we just mentioned. [Again, I don’t think this particular argument is legally relevant under § 230, though the others might be. -EV]
The Act provides immunity from materials that are posted to the internet by publishers, but here the Defendants didn’t just post them. Karra Crowley was then suggested by the defendants that she “needs” to be well-known and that all her information, including home and business addresses, had been “verified”.
{Although Defendants seem to claim that Ms. Crowley was not the sender, the Court rejects this argument in light of later posts by Defendants stating that “information has been confirmed” and that “she is verified”. Posting this information on the heels to publishing the emails less than 2 hours later on Defendants Facebook page creates the impression that Defendants are trying to promote Ms. Crowley’s claim of authorship. On a motion to dismiss, the court must adopt whatever plausible interest supports a valid claim.}
It’s those representations [that Crowley’s information has been verified -EV] that Plaintiffs claim are libelous, particularly after Defendants persisted in allowing the postings to remain even after they had been denounced as false, a decision which caused further harassment and threats to be directed towards Plaintiffs…. The plaintiffs are still free to sue the author of defamatory Internet publications under section 230. …
[4.] Plaintiffs were allowed to assert an infliction or emotional distress claim by the court.
As stated above, defendants’ posts to Facebook suggest that they posted subject emails immediately despite the fact that it is possible for an individual to not only identify her and her company but also send offensive emails racial to the representative of an organisation at the forefront in race relations issues in the country.
Furthermore, the Defendants not only posted the emails but also encouraged Ms. Crowley’s followers to make her famous by assuring that they had “verified” her “information and addresses in Roseville & Loomis. After Ms. Crowley informed Defendant Faison that the emails had been sent from another source, she was refused permission to remove the offensive messages from the website. She received harassment threats and even death threats a month after her initial contact.
Because this Court cannot rule out a reasonable jury finding all of this to be outrageous conduct, amendment to include an intentional infliction of emotional distress cause of action is proper, particularly since amendment should be permitted with extreme liberality at this stage of the proceedings….