Tamar Herman v. Ibtihaj Muhammad ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0784-23
TAMAR HERMAN,
Plaintiff-Respondent,
v.
IBTIHAJ MUHAMMAD,
Defendant,
and
SELAEDIN MAKSUT, COUNCIL
ON AMERICAN-ISLAMIC
RELATIONS, a/k/a CAIR, a/k/a
CAIR FOUNDATION INC., and
CAIR NEW JERSEY, a/k/a
CAIR NJ, a/k/a CAIR NJ INC.,
Defendants-Appellants.
_______________________________
Argued September 10, 2024 – Decided October 15, 2024
Before Judges Sumners, Susswein and Bergman.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Union County,
Docket No. L-2913-22.
Abigail B. Everdell (Davis Wright Tremaine, LLP) of
the New York Bar, admitted pro hac vice, and Jorkeell
Echeverria argued the cause for CAIR Foundation Inc.,
CAIR New Jersey, and Selaedin Maksut (Robert Balin
(Davis Wright Tremaine, LLP), Abigail B. Everdell,
and Pashman Stein Walder Hayden, PC, attorneys for
CAIR Foundation Inc.; Carlton Fields, PA, attorneys
for CAIR New Jersey and Selaedin Maksut; Robert
Balin, Abigail B. Everdell, Bruce S. Rosen, Michael T.
Hensley, Jorkeell Echeverria, and Lauren Fenton-
Valdivia, on the briefs).
Erik Dykema (Bochner PLLC) argued the cause for
respondent (Edward Andrew Paltzik (Bochner PLLC)
and Erik Dykema, attorneys; Edward Andrew Paltzik
and Erik Dykema, on the brief).
PER CURIAM
On motion for leave granted, defendants Counsel on American Islamic
Relations (CAIR) Foundation, CAIR-NJ, and CAIR-NJ's executive director,
Selaedin Maksut, appeal the Law Division's denial of their Rule 4:6-2(e) motion
to dismiss plaintiff Tamar Herman's amended complaint alleging defamation per
se and false light invasion of privacy. We reverse.1
I.
1
In a separate opinion, we affirmed the Law Division's denial of defendant
Ibtihaj Muhammad's Rule 4:6-2(e)'s motion to dismiss. See Tamar Herman v.
Ibtihaj Muhammad, No. A-1328-23 (App. Div. October 15, 2024).
A-0784-23
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The following facts are alleged in the amended complaint. Herman is a
second-grade teacher at an elementary school (school) in the South Orange-
Maplewood school district. On October 6, 2021, Herman believed that one of
her students, who normally wears a form-fitting hijab as part of her Muslim
faith, was wearing a "hood" covering her eyes. Attempting to reengage the
student in schoolwork, Herman asked the student to remove the hood from her
eyesight. Unbeknownst that the student was wearing a loose-fitting hijab,
Herman "lightly brush[ed] back" the student's hijab and "immediately and gently
brushed [it] back to cover . . . the [s]tudent's hair." Herman claims that "out of
respect for the religious practices of Islam and for the [s]tudent's observation of
same, [she] apologized to the [s]tudent." Herman maintains the hijab "never left
the [s]tudent's head," and class resumed without disruption. After the student
told her mother about the incident, the mother spoke to the school's principal
and assistant principal.
The next day at 4:00 p.m., defendant Ibtihaj Muhammad, a practicing
Muslim who wore a hijab while winning a Sabre fencing medal for the United
States in the Olympics, posted the following sentiments on Instagram:
I wrote this book [The Proudest Blue: A Story of Hijab
and Family] with the intention that moments like this
would never happen again. When will it stop?
Yesterday, Tamar Herman, a teacher at Seth Boyden
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Elementary [School] in Maplewood, NJ forcibly
removed the hijab of a second[-]grade student. The
young student resisted, by trying to hold onto her hijab,
but the teacher pulled the hijab off, exposing her hair to
the class. Herman told the student that her hair was
beautiful and she did not have to wear [a] hijab to
school anymore. Imagine being a child and stripped of
your clothing in front of your classmates. Imagine the
humiliation and trauma this experience has caused her.
This is abuse. Schools should be a haven for all of our
kids to feel safe, welcome and protected — no matter
their faith. We cannot move toward a post-racial
America until we weed out the racism and bigotry that
still exist in all layers of our society. By protecting
Muslim girls who wear hijab, we are protecting the
rights of all of us to have a choice in the way we dress.
Writing books and posting on social is not enough. We
must stand together and vehemently denounce
discrimination in all of its forms. CALL Seth Boyden
Elementary (973) 378-5209 and EMAIL the principal
sglander@somsd.k12.Nj.us and the superintendent
Rtaylor@somsd.k12.Nj.us
About thirty minutes later, Muhammad edited and reshared the post on
Instagram and Facebook. 2 The edited post omitted the first two sentences ("I
wrote this book with the intention that moments like this would never happen
again. When will it stop?") and included a photo of the school. Muhammad's
2
The original post, which included a photo and statement about Muhammad's
then-recently published book, has since been removed from Instagram but
remains on Facebook.
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posts garnered considerable reactions in mass media and social media, including
from CAIR and CAIR-NJ, "a nonprofit organization that focuses on Muslim
civil rights and advocacy," and Maksut, calling for Herman's immediate
termination.
On October 8, the day after Muhammad's posts, Maksut, "having seen
Muhammad's social media posts (like thousands of other people)," made the
following statements 3:
• [A]t 12:41 a.m. Eastern Time, [he tweeted:]
"[a]bsolutely unacceptable. Teacher pulls off 7[-
]year old's hijab . . . in front of the class. Our
@CAIRNJ office is calling for immediate
termination. Racist teachers like this cannot be
trusted around our children.
• [A]t 7:34 a.m. Eastern Time, ABC's television
show "Good Morning America" broadcasted a
report entitled "Calls To Fire Teacher Accused
Of Pulling Of Student's Hijab." . . . During . . . an
interview with Maskut. . . .[,] Muskat stated:
"The hijab, you know, is much like any other
article of clothing for a Muslim woman. To
remove that publicly can be very humiliating."
Later in the [interview] . . . Maskut stated:
"Anyone who thinks it's OK to do this to a student
clearly is not fit to be a teacher." [(Empasis
omitted).]
3
The amended complaint includes links to the posts and media reports, which
we need not include in this opinion.
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• At approximately 2:13 p.m.[,] . . . Maksut posted,
and later deleted, the following reply to his
original Twitter post: "Call and email the
Superintendent, Dr. Ronald G. Taylor, today, and
let him know Tamar Wyner Herman is unfit to be
a teacher.
Maksut's statements were also aired on area radio stations. CBS News
New York quoted Muskat stating: "The teacher not only put her hands on her,
removed her headscarf. And this is, of course, humiliating for any Muslim
woman to be exposed this way, in public." WCBS NEWSRADIO 880 reported
that Maksut stated: "Clearly [Herman has] demonstrated she cannot be trusted
around students."
Also on October 8, CAIR shared a link to an NBC-New York television
segment, "NJ Teacher Accused of Pulling Hijab Off 2nd Grade Student's Head,"
on its Facebook and Twitter accounts, along with the following message: "A
teacher pulled off a 7-year-old student's hijab in front of her class. This is
completely unacceptable, and we are calling for immediate termination. Our
children are not safe with #Islamophobia in the classroom." The press release
reiterates Muhammad's version of the incident and includes an earlier quote
from Maksut. CAIR later tweeted: "CAIR-NJ Exec. Dir. Selaedin Maksut:
'Forcefully stripping off the religious headscarf of a Muslim girl is not only
exceptionally disrespectful behavior, but also a humiliating and traumatic
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experience.' @CAIRNJ @Mselaedin #Islamophobia." Around the same time,
CAIR-NJ made three identical tweets and several Facebook posts, echoing
Maksut's earlier sentiments quoted in the CAIR Foundation's Press release.
CAIR also posted a press release on its website entitled "CAIR-NJ Calls
for Immediate Firing of Teacher Who Allegedly Pulled Off Muslim Student's
Hijab," which included the following quote from Maksut:
We call for the immediate firing of the Maplewood
teacher who pulled off the headscarf of a young Muslim
student. Anything less is an insult to the students and
parents of Maplewood, NJ. Forcefully stripping off the
religious headscarf of a young Muslim girl is not only
exceptionally disrespectful behavior, but also a
humiliating and traumatic experience.
Muslim students already deal with bullying from peers,
it's unthinkable that teacher would add to their distress.
Islamophobia in our public schools must be addressed
in NJ. Classrooms are a place for students to feel safe
and welcome, not fear practicing their faith.
On October 9, during a phone interview with the NBC's Today Show,
Maksut stated: "Anything less than removing her from the classroom would be
unacceptable. If she can't respect the religious practices of her students, then
she shouldn't be teaching."
On October 9, CAIR posted a YouTube video clip of the Good Morning
America report, which included the following quote from Maksut: "The hijab,
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you know, is much like any other article of clothing for a Muslim woman. To
remove that publicly can be very humiliating. . . . Anyone who thinks it's OK to
do this to a student clearly is not fit to be a teacher."
Just under a year after the incident, Herman filed a Law Division
complaint against defendants and Muhammad, asserting claims for defamation
and false light invasion of privacy. The complaint was amended after
Muhammad and defendants withdrew their respective Rule 4:6-2(e) motions to
dismiss for failure to state a claim without prejudice. Defendants claimed
Herman failed to plead facts establishing that their statements were made with
actual malice––a required element of defamation and false light invasion of
privacy.
To address concerns raised by the motions to dismiss, Herman amended
her complaint, making allegations that defendants' statements were made with
actual malice because Muhammad "did not investigate whether the allegations
in her posts were true or false, or even make a good faith effort to determine
whether the allegations were true." 4 She avowed Muhammad posted an
4
The record does not include the initial complaint or indicate what allegations
were added in the amended complaint. As best we can determine from the briefs
and the record, the allegations referenced in this and the next paragraph form
the basis of Herman's actual malice claims.
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"unbelievable" version of the incident "based on the third-hand account of a
dubious witness (the [s]tudent, a [seven-year-old] second-grader)." Herman
asserted that, after the incident, the student's mother called Muhammad's
mother, who then relayed the version of the incident that Muhammad posted.
Herman claimed Muhammad's allegations were "neither 'true' nor even
'substantially true.'" She alleges Muhammad "grossly distorted . . . [her] gentle
and momentary light brushing back of the [s]tudent's [hijab]." Herman further
alleged that Muhammad's removal of the initial Instagram post evinces her
"reckless disregard for the truth of her statements."
As to defendants, Herman alleged they acted maliciously because "Maksut
repeated Muhammad's allegations and expanded upon them without
investigation or a good faith effort to determine whether the allegations were
true or false, or to get the facts straight, because––like Muhammad––Maksut
simply did not care at all whether the statements were true or not." She claimed
"Maksut's exaggerated and inflammatory language substantially distorted and
twisted what happened during the interaction between Herman and the [s]tudent,
transforming Herman's caring actions into imagined abhorrent actions." She
contended Maksut "knowingly, maliciously, and willfully published . . . without
authorization or privilege." She asserted defendants' statements were "neither
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true nor substantially true" but were "for the purpose of drumming up support
and publicity, to achieve donations" with "reckless disregard for the fact that
their likely false statements would harm Herman." Herman claimed defendants
never "attempted to contact Herman to learn what happened." Herman
concluded "these facts demonstrate actual malice on the part of . . .
[defendants]."
II.
After Herman amended her complaint, defendants, as well as Muhammad,
renewed their Rule 4:6-2(e) motions to dismiss Herman's complaint, arguing she
failed to plead facts showing their statements were made with actual malice. In
its statement of reasons, the motion court noted the motions as deficient under
Rule 4:6-2(e) and considered them ones for summary judgment. As to
defendants, the court held their brief's statement of facts cited sources outside
the pleadings in footnotes, warranting a summary judgment analysis. Herman
opposed the motions by also submitting a certification that raised facts outside
the pleadings. Nevertheless, applying Rule 4:6-2(e), the court determined that
under Neuwirth v. Murphy, 476 N.J. Super. 377, 391-92 (App. Div.), certif.
denied, 255 N.J. 444 (2023), dismissal was not appropriate because Herman's
amended complaint specifically pled facts establishing that defendants'
A-0784-23
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defamatory and false light invasion of privacy statements were made with actual
malice. The court held "[Herman] has presented detailed facts that call into
question whether . . . Muhammad and thus . . . all [d]efendants, . . . knew or had
serious doubts about the veracity of the alleged defamatory statements they
made or circulated." The court's order denied CAIR defendants' Rule 4:6-2(e)
motion, without reference to a summary judgment motion.
Days before seeking leave to appeal the denial of their motion to dismiss,
defendants moved before the motion court to stay discovery. Before we granted
leave to appeal, the motion court declined to stay discovery. In its statement of
reasons, the court noted that although the motion was "procedurally deficient,"5
it denied the motion on its merits based on the well settled standards set forth in
Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982). In determining defendants did
not show a likelihood of success in reversing the denial of their motion to
dismiss, the motion court "amended, clarified, supplemented or otherwise
amplified" its denial that, under Neuwirth, Herman pled sufficient facts
establishing actual malice.
5
The motion court determined the motion's return date did not comply with
Rule 1:6-3 (a), was not supported by a brief as required by Rule 1:6-5 and was
premature because our court had not ruled on the motion for leave to appeal.
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III.
A.
Our review of a trial court's ruling on a motion to dismiss is de novo.
Watson v. N.J. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017) (citing
Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016)). Since our "review
is plenary[,] . . . we owe no deference to the trial judge's conclusions." State v.
Cherry Hill Mitsubishi, 439 N.J. Super. 462, 467 (App. Div. 2015) (citation
omitted). In considering a motion under Rule 4:6-2(e), courts must accept the
facts asserted in the complaint and should accord the plaintiff all favorable
inferences. Watson, 453 N.J. Super. at 47.
"A complaint should be dismissed for failure to state a claim pursuant to
Rule 4:6-2(e) only if the factual allegations are palpably insufficient to support
a claim upon which relief can be granted." Frederick v. Smith, 416 N.J. Super.
594, 597 (App. Div. 2010) (internal quotations and citation omitted). "[O]ur
inquiry is limited to examining the legal sufficiency of the facts alleged on the
face of the complaint." Green v. Morgan Props., 215 N.J. 431, 451 (2013)
(internal quotations and citation omitted). Therefore, the pleading must be
"search[ed] . . . in depth and with liberality to ascertain whether the fundament
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of a cause of action may be gleaned even from an obscure statement of claim."
Id. at 452 (internal quotations and citation omitted).
B.
Defendants assert the motion court misapplied Rule 4:6-2(e) and
Neuwirth, erroneously finding Herman sufficiently pled actual malice regarding
their statements about Herman's incident with the student. They contend the
court "conflated [Herman's] allegations about Muhammad's subjective
knowledge of falsity with allegations about the CAIR [d]efendants' subjective
knowledge of falsity." Defendants argue the court failed to establish their
"subjective awareness" of the incident and only addressed Herman's allegations
concerning Muhammad's mindset. Defendants also contend Herman failed to
plead facts that they published statements about the incident knowing the
statements were false, made with reckless disregard as to their truth, or had
reason to doubt their truth. Finally, citing Neuwirth, defendants contend
Herman's allegations that they failed to investigate or retract their statements do
not demonstrate they acted with actual malice.
To establish a prima facie case of defamation, there must be: "(1) the
assertion of a false and defamatory statement concerning another; (2) the
unprivileged publication of that statement to a third party; and (3) fault
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amounting at least to negligence by the publisher." DeAngelis v. Hill, 180 N.J.
1, 12-13 (2004). "A defamatory statement, generally, is one that subjects an
individual to contempt or ridicule, one that harms a person's reputation by
lowering the community's estimation of him or by deterring others from wanting
to associate or deal with him." Durando v. Nutley Sun, 209 N.J. 235, 248-49
(2012) (quoting G.D. v. Kenny, 205 N.J. 275, 293 (2011)).
A defendant's statements of opinion about a plaintiff, rather than of fact,
are not actionable defamation. "Statements of opinion, like unverifiable
statements of fact, generally cannot be proved true or false," but such a statement
is not protected where it implies false underlying facts. Lynch v. N.J. Educ.
Ass'n, 161 N.J. 152, 167 (1999); see also Ward v. Zelikovsky, 136 N.J. 516, 533
(1994) ("an accusation of bigotry is not actionable unless the statement suggests
the existence of defamatory facts").
The sole issue here is whether defendants' statements were made with
"actual malice." There must be a showing of actual malice by a defendant where
the statement is about a plaintiff who is a public figure or relates to an issue of
public concern. See Senna v. Florimont, 196 N.J. 469, 495, 496 (2008)
(recognizing that "news stories about those subjects involve the public interest
and deserve heightened protection"). The actual malice standard applies here
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because Herman's conduct arose in the context of her teaching in a public school.
See Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 160 (2000)
(alleged defamatory statements concerning "the welfare of [a child] entrusted to
the care of a teacher," held to be "a matter of public concern.").
"To satisfy the actual-malice standard, a plaintiff must show by clear and
convincing evidence that the publisher either knew that the statement was false
or published with reckless disregard for the truth." Lynch, 161 N.J. at 165. "The
[actual malice] test is subjective, not objective, and involves analyzing the
thought processes of the particular defendant." Durando, 209 N.J. at 251. The
test can be satisfied by proof that "the publisher fabricates a story, publishes one
that is wholly unbelievable, or relies on an informant of dubious veracity . . . or
purposely avoids the truth." Neuwirth, 476 N.J. Super. at 392 (quoting Lynch,
161 N.J. at 165-66) (internal citations omitted). "Mere failure to investigate all
sources [of information to be published] does not prove actual malice." Lynch,
161 N.J. at 172 (citing Costello v. Ocean Cnty. Observer, 136 N.J. 594., 615
(1994). "The actual-malice standard is a subjective standard that does not
involve consideration of whether a reasonable person would have, or should
have, known the statement was false but rather whether 'the defendant in fact
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entertained serious doubts as to the truth of his publication.'" Neuwirth, 476
N.J. Super. at 392 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
In Neuwirth, we reversed the trial court's order denying the defendants'
Rule 4:6-2(e) motion to dismiss the plaintiff's defamation count in his fourth
amended complaint. 476 N.J. Super at 381. After the plaintiff was terminated
as Assistant Commissioner for the Department of Health, he filed a multi -count
complaint, including a defamation claim asserting "[t]he State, through
anonymous sources, and Governor Murphy, made false and defamatory
statements, knowing them not to be true, to the news media and the entire public
of New Jersey during public Coronavirus Press Briefings." Id. at 387. He
asserted Governor Murphy "made his comments about [p]laintiff recklessly
and/or with actual knowledge of their falsity and to punish and further retaliate
against [p]laintiff for engaging in whistleblowing activity concerning high
ranking officials of his administration, which is further evidence of the
maliciousness of his actions." Id. at 389. We concluded the plaintiff's
"[r]epeated, conclusory allegations that Governor Murphy was 'aware' of the
truth and made the statements 'recklessly and/or with actual knowledge of their
falsity' are mere recitations of the applicable legal standard, not factual
assertions." Id. at 393. We added further that "allegations regarding Governor
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Murphy's failure to conduct an investigation between plaintiff's . . . termination
and the [next day's] press briefing are similarly unavailing." Ibid. We thus
dismissed the defamation claim because the plaintiff failed to adequately plead
actual malice. Id. at 394.
A defendant commits false-light invasion of privacy by
giv[ing] publicity to a matter concerning another that
places the other before the public in a false light [if]
....
(a) the false light in which the other was placed would
be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and
the false light in which the other would be placed.
[Romaine v. Kallinger, 109 N.J. 282, 294 (1988)
(quoting Restatement (Second) of Torts, § 652E);
accord Durando, 209 N.J. at 249.]
Simply put, false light invasion of privacy is "essentially [a claim] of
defamation." Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 121
(App. Div. 2009).
C.
We conclude Herman's amended complaint did not sufficiently allege a
prima facie case of defamation and false-light invasion of privacy because she
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failed to assert facts that defendants' statements regarding Herman's interaction
with the student were made with actual malice. We agree with defendants that
Herman's amended complaint improperly conflates their alleged subjective
knowledge of falsity with Muhammed's. Herman's allegations of defendants'
actual malice are imputed from Muhammad's conduct and her subjective intent.
Herman does not make factual allegations establishing that, prior to defendants
publicizing their statements about the incident, defendants acted in concert with
Muhammad or had any communication with Muhammad regarding the veracity
of the student's allegations. Herman makes conclusory claims––with no factual
support––that defendants knew the statements were false, were made with
reckless disregard as to their truth, or they had reason to doubt their truth.
Herman's allegations fail to address defendants' subjective intent in making their
statements.
The mere fact that defendants advocate for Muslims' civil rights does not
establish they knew Muhammad's social media posts were untrue yet still
published defamatory statements or put Herman's privacy in a false light.
Herman's amended complaint asserts that defendants' comments about the
incident were based solely on Muhammad's social media posts. And as we held
in Neuwirth, defendants had no duty to investigate Muhammad's posts. Thus,
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Herman cannot sustain a charge of actual malice by contending defendants
should have communicated with Muhammad, Herman, or the student's family
before circulating and commenting on Muhammad's posts. Defendants never
claimed they had first-hand knowledge of the incident. Accordingly, like the
situation in Neuwirth, we conclude Herman failed to adequately plead facts
showing defendants' statements were made with actual malice.
Finally, we reject Herman's request at oral argument that if we reverse the
motion court, we order dismissal of her amended complaint without prejudice
so that she can amend her complaint again with some guidance from us as to
what facts must be alleged to establish actual malice. Herman amended her
complaint after defendants' initial motion to dismiss was withdrawn without
prejudice. Given that opportunity to comport with the legal principles governing
defamation, she cites no legal or factual basis to afford her another opportunity
to amend her complaint. Moreover, our guidance begins and ends with the case
law governing defamation as discussed herein. Based on our conclusion that
Herman has not established prima facie claims, we discern no reason to allow
her another opportunity to amend her complaint to pursue claims against
defendants.
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Reversed and remanded for an entry of an order dismissing Herman's
complaint as to defendants.
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