Cousins v. Goodier ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SCOTT D. COUSINS )
)
Plaintiff, )
v. ) C.A. No. S20C-11-036 CAK
)
ROSEMARY GOODIER, and )
JOHN DOES 1-10, )
)
Defendants. )
Submitted: June 24, 2021
Decided: July 30, 2021
Defendant Rosemary Goodier’s Motion to Dismiss for Failure to State a Claim
under Delaware Superior Court Civil Rule 12(b)(6)
MEMORANDUM OPINION AND ORDER
Rodney A. Smolla, Esquire, 4601 Concord Pike, Wilmington, DE 19803, Attorney for
Defendant Rosemary Goodier.
Douglas D. Herrmann, Esquire, Troutman Pepper Hamilton Saunders LLP, 1313
Market Street, Suite 5100, Wilmington, DE 19899-1709, Attorney for Defendant
Rosemary Goodier.
Stephen J. Neuberger, Esquire, and Thomas S. Neuberger, Esquire, The Neuberger
Firm, P.A., 17 Harlech Drive, P.O. Box 4481, Wilmington, Delaware 19807, Attorneys
for Plaintiff.
KARSNITZ, J.
INTRODUCTION
At the end of the day, the question presented in this case is this: in the tort
context, do certain statements made by Defendant Rosemary S. Goodier
(“Defendant” or “Goodier”)1 about a lawsuit filed by Plaintiff Scott D. Cousins
(“Plaintiff” or “Cousins”) contain implied facts which may be considered by a jury if I
allowed this to go to trial, or as a matter of law are they unactionable expressions of
Defendant’s opinion? If the former, then I may not grant Defendant’s Motion to
Dismiss the Complaint under Delaware Superior Court Civil Rule 12(b)(6). If the
latter, then I may. To put it another way, viewing the Complaint in the light most
favorable to Plaintiff (and I do), has he pled facts which would entitle him to recover
on his claims under any reasonably conceivable set of circumstances susceptible of
proof? If so, then I may not grant Defendant’s Motion to Dismiss the Complaint
under Delaware Superior Court Civil Rule 12(b)(6). If not, then I may.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a member of the Delaware Bar who resides in Kennett Square,
Pennsylvania and was employed by Bayard, P.A., a law firm in Wilmington,
1
In his Complaint, Plaintiff argues that, although the identities and residence of Defendants John
Does 1-10 are unknown at this time, I have personal jurisdiction over each of Defendants Goodier
and Defendants John Does 1-10 under a conspiracy theory of personal jurisdiction. Plaintiff asserts
that he will ascertain the identities and residence of Defendants John Does 1-10 in initial discovery
and amend the Complaint to allege such specific information. I do not address that issue in this
Opinion, as it is unnecessary to the disposition of this case. Nor do I refer to Defendants John Does
1-10 in this Opinion, but only to Defendant Goodier.
1
Delaware (“Bayard”). Defendant is also a member of the Delaware Bar who
resides in Chadds Ford, Pennsylvania.
On August 5, 2020, Plaintiff filed a pro se lawsuit against the Unionville
Chadds Ford School District in the Court of Common Pleas in West Chester,
Pennsylvania with respect to its use of the letter “U” with a feather as the Unionville
High School mascot. Later that day, Defendant sent an email to Bayard which was
critical of Plaintiff’s lawsuit. Within the next 24 hours, Bayard requested Plaintiff’s
resignation. Following his eventual resignation from Bayard, Plaintiff inquired or
applied to several law firms and in-house counsel law departments, without success.
Ultimately Plaintiff formed his own law firm.
Plaintiff filed his Complaint in this case on November 30, 2020. The
Complaint contains four counts against Defendant: tortious interference with
contract, defamation, aiding and abetting, and civil conspiracy. However, in his
papers filed in response to Defendant’s Motion to Dismiss the Complaint under
Delaware Superior Court Rule 12(b)(6), Plaintiff addressed only the first two counts:
tortious interference and defamation. That matters not, however, because all four
counts rest on a single predicate act of Defendant: the email she sent on August 5,
2020 to Bayard. The Complaint cites two sentences containing three phrases from
that email, claiming that they communicate actionable false statements of fact:
• We hope you can reflect upon how shockingly racist and tone deaf this suit
is, particularly in light of the present demands against the school board, who
2
has to deal with getting students back to school safely in the midst of a deadly
pandemic. [Emphasis supplied]
• Our tax dollars and administrative resources will be plunged into countering
some shockingly racist statements by Mr. Cousins about protecting his white,
Christian heritage. [Emphasis supplied]
Defendant has filed a Motion to Dismiss the Complaint under Delaware Superior
Court Civil Rule 12(b)(6), and the parties have briefed and orally argued the Motion.
This is my decision on the Motion.
PRELIMINARY COMMENTS
This case, like several others which have recently come before me, requires
me to examine the interplay between tort law and constitutional free speech issues.
Plaintiff filed a lawsuit which he believed promoted his principles. Defendant
reacted quite strongly because she believed this lawsuit was “shockingly racist.” I
have no doubt that each party is sincere in the opinion each asserts. Sincerity is an
asset, but civility is as well.
Defendant’s comments regarding Plaintiff’s lawsuit are her opinions. To
borrow a phrase now in common parlance – spoiler alert – as opinions Defendant’s
comments are protected by constitutional privilege.
Two other preliminary comments. First, Plaintiff argues articulately that
because Defendant’s comments were made in a private email to his employer,
Bayard, the comments receive less or no constitutional protection. I reject that
contention. For me, a statement made in a private email carries the same
3
constitutional protections as one stated through a megaphone on Rodney Square.
My second preliminary comment responds to Plaintiff’s argument that no one
could consider Plaintiff’s lawsuit “shockingly racist,” as Defendant wrote. This
contention is factually wrong – we know at least one person was of the opinion that
the lawsuit was shockingly racist. The underlying suggestion Plaintiff makes is that
I apply an objective standard to evaluate Defendant’s statement. Here lies the
underlying and unyielding principle. For me, courts cannot, and should not, evaluate
the objective validity of an opinion. To do so violates First Amendment standards.
As I will describe later in this opinion, simply labelling a statement as an
opinion does not end the discussion. If the opinion suggests or implies facts, I must
examine the implied facts to determine if they conceivably make a case for
defamation. For me, in this case they do not.
ANALYSIS
DEFAMATION
Standard of Review
The Delaware Supreme Court has addressed the Rule 12(b)(6) standard of
review in the defamation context several times,2 most recently finding:
2
See Ramunno v. Cawley, 705 A.2d 1029, 1034-38 (Del. 1998) (stating that the Superior Court
failed to give proper inferences and improperly substituted its own views for that of the fact-finder,
and reversing because the Superior Court “strayed from the time-honored rules governing motions
to dismiss under Rule 12(b)(6) by failing to draw every reasonable factual inference in favor of the
complainant.”); Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (stating the standard and citing
Ramunno); Spence v. Funk, 396 A.2d 967, 968 (Del. 1978) (reversing a ruling that grossly
4
[T]he threshold for the showing a plaintiff must make to survive a
motion to dismiss is low. Delaware is a notice pleading jurisdiction.
Thus, for a complaint to survive a motion to dismiss, it need only give
general notice of the claim asserted.3
The Court must “view the complaint in the light most favorable to the
nonmoving party, accepting as true [his] well-pled allegations and drawing all
reasonable inferences that logically flow from those allegations.”4 The motion can
be granted only when the “plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.”5 In Doe, the
Court explained that review of the Ramunno decision demonstrates that this is a
relatively low bar because it:
… illustrate[s] that even silly or trivial libel claims can easily survive
a motion to dismiss where the plaintiff pleads facts that put the
defendant on notice of his claim, however vague or lacking in detail
these allegations may be.6
Elements of Defamation
Under Delaware law, at trial Plaintiff would have to prove that: 1) Defendant
made a defamatory statement; 2) concerning Plaintiff; 3) the statement was
published; and 4) a third party would understand the character of the communication
insensitive remarks about a police chief are not actionable and stating the “test for sufficiency is a
broad one” on a Rule 12(b)(6) motion).
3
Doe, 884 A.2d at 458 (internal punctuation and footnote omitted).
4
Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871 (Del. 2020).
5
Id. at 871–72.
6
Doe, 884 A.2d at 459.
5
as defamatory.7 The first element is perhaps the most important. Whether or not a
statement is defamatory is a question of law.8 In answering this question, I must
decide “whether alleged defamatory statements are expressions of fact or protected
expressions of opinion.”9 Because this question is one of law, I can make this
determination under the standard of review for a motion to dismiss, discussed above.
I have before me the allegedly defamatory statements and I can determine whether
they are defamatory based on the words and the context in which they were
published. I turn now to the first element: whether Defendants statements were
defamatory. If they were not, then I need not consider the other elements of
defamation.
Rhetorical Hyperbole and Name Calling
Tort liability does not attach to hyperbole and name calling at common law
and under First Amendment principles. Insult and critique are different from
palpable false statements of fact. Plaintiff bears the burden of establishing that
Defendant published a false statement of fact concerning him.10 Even using
7
Doe, 884 A.2d at 463.
8
Riley v. Moyed, 529 A.2d 248, 251 (Del.1987).
9
Id.10
Philadelphia Newspapers, Inc., v. Hepps, 475 U.S. 767, 778 (1986); Milkovich, 497 U.S. at 16-17
(1990); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988) (First Amendment precluded
recovery for emotional distress over ad parody which “could not reasonably have been
interpreted as stating actual facts about the public figure involved”); Letter Carriers v. Austin,
418 U.S. 264, 284-86, (1974) (use of “traitor” in literary definition of union “scab” not basis for
defamation action under federal labor law since used “in a loose, figurative sense” and was
“merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union
members”).
6
language that might in some contexts be deemed factual is insulated from liability
when in the specific context in which it is published, it is plain that it is being used
figuratively to express an opinion.11 Plaintiff’s Complaint must be dismissed if the
“allegedly defamatory statements cannot be interpreted as stating actual facts, but
instead are either ‘subjective speculation’ or ‘merely rhetorical hyperbole.’”12
In my view, Defendant’s three statements a b ou t P l ai nt i ff ’ s l a ws ui t are
not actionable under this test. A specific accusation that a person engaged in
palpable race discrimination may be actionable defamation because jurors can
objectively determine the motive for the discrimination. In contrast, political,
cultural, and ideological critiques that accuse institutions or individuals of being
racist or bigoted are not actionable but are expressions of name calling and
rhetorical hyperbole protected at common law and under the First Amendment.13
Courts have consistently held that imputations of r a c i s m a n d a l l s o r t s o f
o t h e r n e g a t i v e q u a l i t i e s are inherently subjective and not actionable.14
11
Greenbelt Co-op. Pub. Association v. Bresler, 398 U.S. 6, 13 (1970) (accusations of “blackmail”
protected under First Amendment).
12
Doe, 884 A.2d at 466 (Del. 2005); Beverly Enterprises, Inc. v. Trump, 182 F.3d 183, 187 (3d Cir.
1999) (“Although Trump’s statements were undoubtedly offensive and distasteful, the law of
defamation does not extend to mere insult.”).
13
McCafferty v. Newsweek Media Group, Ltd., 955 F.3d 352, 358 (3d Cir. 2020) (while specific
accusations of race discrimination may be actionable, “a simple accusation of racism” is not).
14
Agar v. Judy, 151 A.3d 456, at 481 (Del. Ch. 2017); Stevens v. Tillman, 855 F.2d 394 (1988), cert.
denied, 489 U.S. 1065 (1989) (“racist”); Buckley v. Littell, 539 F.2d 882 (2d Cir.1976), cert.
denied, 429 U.S. 1062 (1977) (“fascist,” “fellow traveler,” and “radical right”); Rutherford v.
Dougherty, 91 F.2d 707 (3d Cir.1937) (religious hatred and bigotry); Coral Ridge Ministries
Media, Inc. v. Amazon.com, Inc., 406 F. Supp. 3d 1258, 1277 (M.D. Ala. 2019) (“hate group”); Sall
v. Barber, 782 P.2d 1216, 1218–19 (Colo.Ct.App.1989) (“bigot”); Rambo v. Cohen, 587 N.E.2d
140, 147 (Ind.Ct.App.1992) (“anti-Semite”); Raible v. Newsweek, Inc., 341 F. Supp. 804, 806–07
7
Taking Defendant’s statements about Plaintiff’s lawsuit in context—both the immediate
context and the broader social context—it becomes apparent that the “allegedly
defamatory statements cannot be interpreted as stating actual facts, but instead are
either ‘subjective speculation’ or ‘merely rhetorical hyperbole.’”15
Fact vs. Opinion
In Riley v. Moyed,16 the Delaware Supreme Court embraced an influential
four-part test articulated by United States Circuit Court of Appeals for the District of
Columbia to distinguish between actionable false statements of fact and non-
actionable opinion.17 “First, the Court should analyze the common usage or meaning
of the challenged language. Second, the Court should determine whether the
statement can be objectively verified as true or false. Third, the Court should
consider the full context of the statement. Fourth, the Court should consider the
broader social context into which the statement fits.”18 The four Riley/Ollman factors
apply collectively and in their totality, and often overlap and interrelate.
Common Usage
In my view, the common usage of phrases such as “shockingly racist” and
“protecting his white, Christian heritage” as applied to Plaintiff’s lawsuit clearly point
(W.D.Pa.1972) (“white majority”); Rybas v. Wapner, 311 Pa. Super. 50 (1983) (“anti-Semitic”);
Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 766 (D.N.J. 1981) (racial prejudice);
Sweeney v. Philadelphia Record Co., 126 F.2d 53, 55 (3d Cir. 1942) (bigotry).
15
Doe, 884 A.2d at 466.
16
529 A.2d 248 (Del. 1987).
17
See Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984).
18
Riley, 529 A.2d at 252 (internal citations omitted).
8
toward critique and opinion, and not factual assertions. “An alleged defamatory
statement is generally not provable as false when it uses a term that has an
imprecise and debatable meaning.”19
In Buckley, the Second Circuit held that characterizing William F. Buckley,
Jr. as a “fellow traveler” of “fascism” or the “radical right” used terms which were
“concepts whose content is so debatable, loose, and varying, that they are
insusceptible to proof of truth or falsity.” The Court noted that those ambiguous
labels contrasted sharply with accusations of actually being a member or legislative
representative of a concrete political party, which are allegations that are
“susceptible to proof or disproof of falsity.” In contrast, what was or was not
“fascism” was subject to argument, the sort of imprecise meaning and usage
common “in the realm of political debate.”
In Coral Ridge, the Court quoted Buckley and applied its principles in holding
that accusations that defendant was a member of a “hate group” were not
actionable. “Similar to the terms ‘fascism,’ ‘radical right,’ and ‘political Marxist,’
the term ‘hate group’ also suffers from a ‘tremendous imprecision of the meaning
and usage ... in the realm of political debate.’”
Objective Verifiability
For me to send this case to a jury, I must find that the jury can determine the
19
Buckley v. Littell, 539 F.2d at 890, 893-894 (term “fascist” not actionable); Coral Ridge
Ministries Media, Inc., 406 F. Supp. 3d a t 1276 ( term “hate group” not actionable).
9
truth or falsity of Defendant’s statements in some objectively verifiable manner. I
cannot imagine what types of questions I could put to the jury in my jury
instructions in this regard. If I allowed the jury to review the underlying West
Chester, Pennsylvania lawsuit and asked the jurors to determine as a matter of fact
whether it is “shockingly racist,” I think it is highly debatable whether that fact
would be verifiable on the face of the lawsuit. Nor do I think that the statement
“shockingly racist” implies the existence of an independent, undisclosed
defamatory factual basis for Defendant’s opinion about the lawsuit under Kanaga
and Ramunno.20 Even if the statements were verifiable, they are supported by
premises in Plaintiff’s lawsuit that cannot be held to be false as a matter of fact. I
have great faith in, and respect for, jurors. I believe they would understand that
Defendant’s opinion represents her interpretation of the lawsuit, and that they are
free to draw their own conclusions about the lawsuit. They would not, however, be
determining a matter of fact. Moreover, how would I review such a determination
by the jury?
Ollman held as “obviously unverifiable” the alleged defamatory statement
that the plaintiff academic was an “outspoken proponent of political Marxism.”
The Ollman court held that this characterization was “much akin to” the “fascist”
label in Buckley, in that it was a “loosely definable, variously interpretable
20
Defendant never ascribed the words “shockingly racist” to Plaintiff himself, but only to the
lawsuit.
10
statement” made in the context of “political, social or philosophical debate.”
Full Context of the Statement
Defendant’s allegedly defamatory statements were contained in an email sent
to Bayard to “bring to the firm’s attention the lawsuit filed by one of your directors,
Scott Cousins, against the Unionville Chadds Ford School District” and it
contained a link to a news story about the lawsuit. “When an opinion is
accompanied by its underlying non-defamatory factual basis, a defamation action
premised upon that opinion will fail no matter how unjustified, unreasonable or
derogatory the opinion might be.”21. The email concerned the lawsuit, not
Plaintiff, and members of Bayard could read the lawsuit for themselves and draw
their own conclusions. Defendant’s statements were not made in isolation but
were imbedded in other statements about the protection of students from COVID-
19, the waste of tax dollars in defending the lawsuit, and the fact that Plaintiff’s
child had graduated from Unionville. In my view, any reasonable reader of the
email would believe that Defendant is plainly expressing her opinion that the
lawsuit was a waste of public resources and her concurrent opinion that the lawsuit
contains offensive statements. I find it interesting that Defendant also calls the
lawsuit “horrific,” yet Plaintiff does not characterize that statement as defamatory.
To me, “horrific” and “racist” are both subjective terms of opinion.
The third factor under the Riley/Ollman test is an inquiry into context. T h e
21
Riley, 529 A.2d at 254.
11
only conduct of Plaintiff that Defendant criticized was the filing of the lawsuit, thus
providing readers of the email with the plain contextual understanding that her
characterizations were her opinions concerning that lawsuit.
Broader Social Context
The broader social context in which Defendant’s statements were made is the
national discourse on race in America, symbols which suggest racial or ethnic
stereotypes, and the names and mascots of sports teams. Charges of “racism” are
often made during this discourse, and heated rhetoric and name calling are common.
Both in its pleadings and at oral argument, Plaintiff stated that Defendant
relies on an overbroad interpretation of Riley, which interpretation -- if not Riley
itself – was overruled by the United States Supreme Court three years later in
Milkovich v. Lorain Journal Co.22 In Milkovich, the Supreme Court rejected a
constitutionally required “opinion” exception to State defamation laws.23 It held
that, in addition to existing constitutional protections, no additional separate
constitutional privilege for “opinion” is required to ensure the freedom of speech
guaranteed by the First Amendment.24 I need not address whether Defendant made
arguments to the contrary, because I believe that Riley and Milkovich are compatible.
Moreover, I believe that Riley is compatible with two subsequent opinions of the
22
497 U.S. 1 (1990).
23
The Supreme Court clarified any dictum to the contrary in Gertz v. Robert Welch, Inc., 418 US.
323 (1974).
24
497 U.S. at 21.
12
Delaware Supreme Court which recognized Milkovich.25
A good example of a lower court grappling with the Milkovich opinion is
Moldea, supra.26 The United States District Court for the District of Columbia
granted summary judgment in favor of a newspaper publisher in an action brought by
the author of a book arising from the publication of a book review which contained
an allegedly defamatory statement that the book contained “too much sloppy
journalism.” On appeal, the United Stated Circuit Court for the District of Columbia
originally reversed and remanded, holding that the allegedly defamatory statement
was a factually verifiable statement under Milkovich.27 On petition of rehearing,
however, the Circuit Court modified its earlier opinion and affirmed the District
Court’s summary judgment. It found that it was highly debatable whether the
allegedly defamatory statement was sufficiently verifiable to be actionable in
defamation:
Arguably, our decision … failed adequately to heed the counsel of
both the Supreme Court and our own precedents that “[w]here the
question of truth or falsity is a close one, a court should err on the
side of nonactionability.” Liberty Lobby, Inc. v. Dow Jones &
Co., 838 F.2d 1287, 1292 (D.C. Cir.) (citing Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S. Ct. 1558, 1564,
25
Kanaga v. Gannett Co., Inc., 687 A.2d 173, 178 (stating that Riley allows liability for “implied
assertions of fact”); id. at 179 (“a statement of opinion would be actionable if it implies the
allegation of undisclosed defamatory facts as the basis for the opinion”); Ramunno, 705 A.2d at
1036 (“a defamation action may lie where an opinion implies the existence of an undisclosed
defamatory factual basis”); id. at 1038 n.34 (“Again, in light of our holding in Kanaga that a
statement cast as an opinion is actionable if it implies the existence of undisclosed defamatory facts,
we caution against an overly rigid application of the four-part Riley test”).
26
22 F.3d 310 (D.C. Cir. 1994).
27
15 F.3d 1137.
13
89 L.Ed.2d 783 (1986)), cert. denied, 486 U.S. 825, 109 S. Ct. 75,
102 L.Ed.2d 51 (1988). “The First Amendment requires that we
protect some falsehood in order to protect speech that matters.” Gertz
v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S. Ct. 2997, 3007, 41
L.Ed.2d 789 (1974). The Court has cautioned in several cases that the
First Amendment preserves a “breathing space” essential to the
exercise of freedom of the press. “To that end [the Supreme] Court
has extended a measure of strategic protection to defamatory
falsehood.” Id. at 342, 94 S. Ct. at 3008.
However, the Circuit Court did not need to determine whether the allegedly
defamatory statement was verifiable, because the statement was a supportable
interpretation of the underlying book. Thus, even if the statement was verifiable, it
was supported by premises in the book that the Circuit Court could not hold to be
false as a matter of fact: “Because the reader understands that such supported
opinions represent the writer's interpretation of the facts presented, and because the
reader is free to draw his or her own conclusions based upon those facts, this type of
statement is not actionable in defamation.”28
Moreover, “[w]hen an opinion is accompanied by its underlying
nondefamatory factual basis, a defamation action premised upon that opinion will
fail no matter how unjustified, unreasonable, or derogatory the opinion might
be.”29 Defendant made it clear that she was critiquing Plaintiff’s lawsuit, which
had been the subject of media coverage and had been reviewed by members of
Bayard. Because Defendant fully disclosed the underlying nondefamatory factual
28
15 F.3d at 1144-45.
29
Riley, 529 A.2d at 254.
14
basis for her email as Plaintiff’s lawsuit, “readers can interpret the factual
statements and decide for themselves whether the writer’s opinion was justified.”30
I find that Defendant’s statements are statements of opinion rather than fact,
and that, as a matter of law, they are not actionable as defamatory. Thus, I need not
address the other elements of the tort of defamation.
CONCLUSION
For the reasons stated above, I GRANT Defendant’s Motion to Dismiss
Plaintiff’s Defamation Claim for Failure to State a Claim under Delaware Superior
Court Civil Rule 12(b)(6).
TORTIOUS INTERFERENCE WITH CONTRACT, CIVIL CONSPIRACY
AND AIDING AND ABETTING
Plaintiff’s three additional tort claims all rest on the very same allegedly
defamatory statements made by Defendant which are the subject of Plaintiff’s
defamation claim. If those statements are not actionable as defamation, they are not
actionable as tortious interference with contract, conspiracy, or aiding and abetting.
The same First Amendment protections that insulate Defendant from liability for
defamation insulate her from liability for tortious interference with contract. In
NAACP v. Claiborne Hardware Co.,31 the United States Supreme Court held that
the First Amendment barred tortious interference claims and protected the right of
30
Id. at 254; Kanaga, 687 A.2d at 178.
31
458 U.S. 886, 916-17 (1982).
15
individuals to engage in public protest for the purpose of influencing societal or
governmental change, even if that protest activity causes economic harm.32
The tortious interference with contract claim additionally fails because
Plaintiff does not allege in the Complaint that Defendant’s sole motivation in
making the statements was to interfere with his contact with Bayard. Defendant’s
email calls for no action by Bayard against Plaintiff and does not demand his dismissal
or discipline. Indeed, the Complaint states that Defendant’s motivation was at least
in part political, as Plaintiff’s “cancel culture” references bely. Under Delaware
law, however, “[o]nly if the defendant’s sole motive was to interfere with the contract
will this factor support a finding of improper interference.”33
Plaintiff may not through the artifice of clever pleading avoid the strictures of
defamation law that would otherwise apply. In Hoover v. Van Stone,34 the Delaware
Federal District Court, applying Delaware law, held that a counterclaim for
defamation was barred under the Delaware “judicial proceedings” absolute
privilege. The issue before the court was whether the judicial proceedings privilege,
originally developed in defamation law, should also be applied to, inter alia, claims
for tortious interference with contractual relationships. The court held that the
privilege should also apply to tortious interference with contractual relationships,
32
See also City of Keene v. Cleaveland, 167 N.H. 731, 740 (2015) (tortious interference claim
against protestors barred under First Amendment principles established in Claiborne).
33
WaveDivision Holdings, LLC v. Highland Capital Mgmt., L.P., 49 A.3d 1168, 1174 (Del. 2012)
(emphasis in original).
34
540 F. Supp. 1118 (D. Del. 1982).
16
less the policies underlying the privilege be defeated by mere artful pleading:
Defendants argue that even if the absolute privilege bars an action for
defamation, it does not preclude the prosecution of the three other
counts contained in the counterclaim. These counts, however, are all
predicated on the very same acts providing the basis for the defamation
claim. Application of the absolute privilege solely to the defamation
count, accordingly, would be an empty gesture indeed, if, because of
artful pleading, the plaintiff could still be forced to defend itself against
the same conduct regarded as defamatory.35
Hoover was endorsed and relied upon with approval by the Delaware Supreme
court in Barker v. Huang.36 In Barker the Delaware Supreme Court held that the
Superior Court erred in not applying the absolute privilege applicable in defamation
actions to the other causes of action that had been pleaded as well:
However denominated, Barker’s claim is that Huang intentionally
made derogatorily false statements about her, and that she has been
harmed thereby. To the extent that such statements were made in the
course of judicial proceedings, they are privileged, regardless of the tort
theory by which the plaintiff seeks to impose liability. We therefore
hold that Barker’s claims of invasion of privacy and intentional
infliction of emotional distress, to the extent that they complain about
statements made by Huang during the course of the Rochen litigation,
are barred by the absolute privilege.37
While Hoover and Barker concern common law immunity, their principle
should certainly apply with equal if not greater force to constitutional immunity
under the First Amendment. Numerous courts have held that tortious interference
claims grounded in the exercise of free expression on matters of public concern are
35
Id. at 1124.
36
610 A. 2d 1341 (Del. 1992).
37
Id. at 1349.
17
barred by the First Amendment.38
I find that Plaintiff’s claims for tortious interference with contract, civil
conspiracy and aiding and abetting are derivative of his defamation claim, and as
such are, like the defamation claim, non-actionable as a matter of law. Because I find
Plaintiff’s three additional tort claims non-actionable, I need not address the various elements of
tortious interference with contract under Delaware common law and §766 of the Restatement
(Second) of Torts (1979) as discussed in Plaintiff’s pleadings.
38
Resolute Forest Products, Inc. v. Greenpeace International, 302 F. Supp. 3d 1005, 1016
(N.D. Cal. 2017) (“Therefore, claims which are similar to defamation, such as tortious interference
with contractual or prospective relationships ‘are subject to the same first amendment
requirements that govern actions for defamation.’”), quoting Unelko Corp. v. Rooney, 912 F.2d
1049, 1058 (9th Cir. 1990); Gardner v. Martino, 563 F.3d 981, 992 (9th Cir. 2009) (applying
Unelko’s holding to actions for intentional interference with economic relationships and for
prospective economic advantage); Medical Laboratory Management Consultants v. American
Broadcasting Companies, Inc., 306 F.3d 806, 821 (9th Cir. 2002) (Tortious interference causes of
action are subject to First Amendment requirements); Redco Corp. v. CBS, Inc., 758 F.2d 970, 973
(3d Cir.1985) (unless defendants “can be found liable for defamation, the intentional interference
with contractual relations count is not actionable”); Beverly Hills Foodland, Inc. v. United Food &
Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir.1994) (Constitutional
requirements for defamation “must equally be met for a tortious interference claim based on the
same conduct or statements”; otherwise “a plaintiff may ... avoid the protection afforded by the
Constitution ... merely by the use of creative pleading”); State of South Dakota v. Kansas City
Southern Industries, 880 F.2d 40, 50–51 (8th Cir.1989) (applying First Amendment to tortious
interference); Eddy’s Toyota of Wichita, Inc. v. Kmart Corp., 945 F. Supp. 220, 224 (D. Kan. 1996)
(“[T]he court agrees with defendant that the letters in this circumstance are protected free speech
and cannot form a basis for plaintiff's tortious interference claim,” applying Claiborne); National
Organization for Women, Inc. v. Scheidler, No. 86 C 7888, 1997 WL 610782, at *31 (N.D. Ill.
Sept. 23, 1997) (“The court therefore concludes that the application of the state law of tortious
interference with contractual relations to Migliorino’s conduct in this case would violate the First
Amendment.”); City of Keene v. Cleaveland, 167 N.H. 731, 740 (2015) (tortious interference
claim barred under First Amendment principles established in Claiborne); Cincinnati Arts Assn. v.
Jones, 2002-Ohio-5428, 54, 120 Ohio Misc. 2d 26, 37, 777 N.E.2d 346, 355 (Rejecting tortious
interference claim applying Claiborne and observing: “Even when contracts are interfered with
by political speech, there is no right to recovery.”); Moldea, 22 F.3d at 320 (“[P]laintiff may not
use related causes of action to avoid the constitutional requisites of a defamation claim.”).
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CONCLUSION
For the reasons stated above, I GRANT Defendant’s Motion to Dismiss
Plaintiff’s Claims for Tortious Interference with Contract, Civil Conspiracy, and
Aiding and Abetting for Failure to State a Claim under Delaware Superior Court
Civil Rule 12(b)(6).
This case is dismissed.
IT IS SO ORDERED.
/s/ Craig A. Karsnitz
cc: Prothonotary
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