The local council in New Milton, England, fined Lee Reynolds £1,000 ($1,329) for fly-tipping after he left a small box of cardboard on the ground next to four overflowing recycling bins. Fly-tipping is illegally dumping waste or not taking it to a proper disposal site. The bins were completely full, and he said the warning signs were hidden by the pile of garbage. The council later reduced the fine to £150 ($200) after changing the charge to “failure to control household waste.” Reynolds paid it but says he is still unhappy and is continuing to complain. He argues the messy site was a fire hazard, and the fine was unfair since the council wasn’t keeping the area clean.
From Jones v. Florida Dep’t of Health, decided by Florida Court of Appeal Judges Joseph Lewis, Ross Bilbrey, and Thomas Winokur:
Jones was … the Environmental Health Program Consultant in the [Florida Department of Health] Division of Disease Control and Health Protection. In March 2020, as part of DOH’s response to the COVID-19 pandemic, Jones was assigned to work on the Department’s “COVID-19 Dashboard” to provide an interactive illustration of COVID-19 testing data to the public. The parties agreed that Jones’ chain of command began with her immediate supervisor, IT Director Craig Curry. Their Division Director was Dr. Carina Blackmore. Authority proceeded to then-Deputy Secretary Dr. Shamarial Roberson ….
[O]n or about April 9, 2020, Curry learned that Jones had posted Facebook messages identifying herself as the person who maintained DOH’s COVID-19 Dashboard and explaining the information displayed on the Dashboard. About twelve days later, Curry discovered that Jones had given an interview to DOH’s outside geographic information system (GIS) vendor describing her work as the Dashboard manager.
Curry also found out about a blog Jones published, representing herself as the author of DOH’s COVID-19 Dashboard and posting charts of DOH data she had created stemming from her job duties. Curry was concerned that Jones had not obtained permission from DOH’s Office of Communications before making these public statements as a DOH representative about the Dashboard information.
In late April 2020, to facilitate the State’s plan to reopen counties with lower rates of new COVID-19 infections, Jones was tasked with creating and presenting reopening criteria to include on the Dashboard. Jones presented her work on this “county scorecard project,” including positivity rates for each county, to Deputy Secretary Roberson on April 26, 2020.
According to Jones, Roberson disapproved of Jones’ presentation because her COVID-19 figures exceeded the target percentage rates for reopening many counties. {The veracity of Jones’ allegations is immaterial to our disposition.} Jones testified that Roberson instructed her to reconfigure the data by lowering the infection rates and exempt counties with smaller populations from the “scorecard” materials.
Jones alleged that she considered this a directive to falsify the data, and she refused to do so. Jones added that ultimately, the county scorecard data was not published. Although she disagreed with instructions given by Roberson, Jones did amend the COVID-19 Dashboard to reflect new case positivity rates and other data provided by DOH epidemiologists.
Jones continued to publish data to the public through DOH’s open data hub, including data not approved for publication by DOH. On May 5, 2020, Jones was instructed to take the data hub offline temporarily so the information could be vetted, but she was openly defiant…. Jones was removed from her assignment on the COVID-19 Dashboard on May 6, 2020.
Jones admitted that on May 7, 2020, she altered the Dashboard files and removed several team members’ administrative software rights, preventing their access and hindering their ability to do their jobs. Curry instructed Jones to restore the administrative privileges for her colleagues and directed her not to impede their work with the Dashboard. But Jones never complied. Instead, Curry had to contact the software vendor directly to get the access privileges reinstated.
The following week, on May 14, 2020, Jones texted Curry that she was considering filing a whistleblower complaint about “how I’m being treated, the Dashboard mess, gross mismanagement.” … The next day, Jones emailed an outside GIS COVID data listserve group informing the recipients that she was no longer the manager of the COVID-19 Dashboard and that the new team running the Dashboard was not expected to “continue the same level of accessibility and transparency” as she had….
Jones was fired on May 18, 2020, and sued on various grounds. The court rejected Jones’ whistle-blower claim:
[Jones] admitted, and the trial court found, that she presented no evidence that she engaged in whistleblower activity protected by the statute before her employment was terminated. It was undisputed that Jones made no report of a violation of law or prohibited act by DOH, as defined by section 112.3187(5), to a recipient listed in section 112.3187(6), and submitted no written and signed complaint under section 112.3187(7) before her termination. Thus, we agree with the trial court that Jones failed to establish a prima facie case of retaliation under section 112.3187.
The trial court rejected Jones’ argument that she was prevented from filing a written report by her termination. The court found that Jones “had ample opportunity to make a protected disclosure under the FWA … if she intended to do so after her alleged refusal to falsify data on April 26, 2020.” The record supports the trial court’s finding that Jones was not prevented by DOH or any supervisor from meeting the requirements of section 112.3187(5), (6) and (7) before her employment was terminated on May 18, 2020….
Jones’ text on May 14, 2020 … stating she wanted to complain about “how I’m being treated” was not a protected disclosure of a law violation by DOH under section 112.3187(5). The court applied the correct rule that “personal complaints” are not protected disclosures under section 112.3187. Pickford v. Taylor Cnty. Sch. Dist. (Fla. App. 2020) (holding complaint about salary not protected); Nazzalv. Fla. Dep’t of Corrs. (Fla. App. 2019) (holding that complaints about personal conflict with supervisor not protected under section 112.3187)….
Jones does not contest the trial court’s citations to her deposition and the depositions of the other witnesses to establish that shortly before she was terminated, she interfered with other employees’ access to the COVID-19 Dashboard and refused to reinstate this access when directed to do so. The trial court also cited deposition pages supporting its finding that before Jones’ termination, she messaged a large group of people outside DOH disparaging the new Dashboard team after she was reassigned.
The trial court’s finding that Jones’ termination of employment was based on these instances of insubordination and violation of DOH policy, and not retaliation for protected whistleblower reports as defined by section 112.3187(5), (6), and (7), was supported by competent, substantial evidence….
And the court rejected Jones’ First Amendment claim:
To show that her communications were protected speech under the First Amendment, Jones was required to demonstrate she (1) spoke as a private citizen; (2) on a matter of public concern; and (3) her interest in publishing the speech outweighed the employer’s interest in regulating the speech.
The character of speech as a citizen and not as an employee depends on whether the speech “owes its existence to a public employee’s professional responsibilities.” … Jones testified that she was assigned to create and manage DOH’s COVID-19 Dashboard and that she was responsible for communicating with the public and the media on DOH’s behalf about the Dashboard….
Jones agreed that in her personal blog post and Facebook post she identified herself as the DOH Dashboard manager speaking with authority derived from her employment. Thus, Jones’ public-facing comments about the Dashboard and her reassignment away from that duty were made as a DOH employee, not as a citizen on her own behalf.
On appeal, Jones does not argue that her refusal to comply with her supervisor’s directives (to refrain from public dissemination of data until they were vetted by DOH personnel, to reconfigure COVID-19 data for a new purpose, and to reinstate access to the Dashboard for fellow DOH employees after she removed it) were protected by the First Amendment. Likewise, Jones does not argue that her public criticism of the DOH team assigned to the Dashboard in her place was protected citizen speech.
As the Supreme Court has recognized, “the government as employer indeed has far broader powers than does the government as sovereign.” And “even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.” … Jones could not demonstrate that her employment was terminated in retaliation for her exercise of speech protected by the First Amendment….
Miriam R. Coles and Dawn M. McMahon (Henry Buchanan, P.A.) and C. Alan Lawson, Jason Gonzalez, Jessica Slatten, and Taylor Greene (Lawson Huck Gonzalez, PLLC) represent defendants.
Florida nonprofit African People’s Education and Defense Fund twice applied for COVID-relief grants from monies made available to Pinellas County by the federal government. The Pinellas County Board of Commissioners initially approved APEDF’s first grant request but later revoked that approval; the Board denied the group’s second grant application outright.
APEDF sued, contending that the Board had revoked the first grant and denied the second on the basis of race and because of the group’s association with the “Uhuru Movement”—which APEDF describes as a collection of “like-minded groups and individuals promoting Black community empowerment.”
The court allowed APEDF’s First Amendment to go forward:
Where, as here, the government is doling out public funding, it operates as a sovereign rather than as an employer. Pinellas County wasn’t seeking an ongoing relationship with APEDF, nor was it offering to pay APEDF to perform a service or to act as an agent. Rather, it was simply determining whether APEDF’s contributions to the public justified an award of grant money. In that respect, APEDF is less like an employee or a traditional government contractor and “more like [an] ordinary citizen[ ] whose viewpoints on matters of public concern the government has no legitimate interest in repressing.”
To be sure, APEDF wasn’t (and isn’t) legally entitled to a COVID-relief grant. And as the County emphasizes, the government doesn’t engage in viewpoint discrimination simply because it “selectively fund[s] a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.” That being said, “even in the provision of subsidies, the Government may not ‘ai[m] at the suppression of dangerous ideas.'” … “[E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.” …
The essence of APEDF’s First Amendment claim here is that the County manipulated the ARPA grant program to suppress ideas that it viewed as dangerous—namely, those associated with the Uhuru Movement. That, it seems to us, is the very kind of claim that the NEA v. Finley (1997) Court suggested might have merit. Though the government can deny funding to applicants for many reasons, it “may not deny” even a discretionary “benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” See also Speiser v. Randall (1958) (“The appellees are plainly mistaken in their argument that, because a tax exemption is a ‘privilege’ or ‘bounty,’ its denial may not infringe speech.”)….
Having concluded that APEDF is entitled to full (rather than diminished) First Amendment protection, we restate the governing test: To state a First Amendment retaliation claim, APEDF must allege (1) that it engaged in “constitutionally protected” speech or associational activity, (2) that it “suffered adverse conduct that would likely deter a person of ordinary firmness from engaging” in that activity, and (3) that “there was a causal relationship between the adverse conduct” and the activity….
Pointing to the significance of the grants to its operations, APEDF claims that the County’s actions would likely deter a nonprofit of ordinary firmness from engaging in expressive association. The County denies the existence of any chill because, it says, APEDF (1) “is free to engage in protected expressive association (including with the Uhuru Movement) without the benefit of grant funding” and (2) “in fact it does so.” … [W]e think APEDF has the better of the argument….
APEDF has adequately alleged that it was put in a sufficiently “coercive” position here. The County offered nonprofits an opportunity to apply for grants to mitigate and remediate the financial harm caused by the global COVID pandemic. APEDF prepared and submitted two competitive grant applications explaining the economic harm it had suffered as a result of COVID and its need for the grants. It scored high on objective markers, and it initially won a $36,801 grant for radio equipment to permit Black Power 96 to “continue broadcasting timely information on local health and educational services and emergency alerts.” Then, though, APEDF claims that on account of its association with the Uhuru Movement, its first grant was revoked and its second application—for a $67,327 grant to purchase an “urgently needed” back-up power generator—was denied. Giving it the benefit of reasonable inferences, APEDF has plausibly alleged that the County effectively punished it for associating with the Uhuru movement—forcing it to choose between that association and an important infusion of cash that, by objective markers, it seemed to have warranted….
And the court also allowed APEDF’s Equal Protection Clause race discrimination claim to go forward:
We begin with the question whether APEDF, as an inanimate corporation, can assert a claim for race discrimination under the Equal Protection Clause. Taking a cue from our existing precedent, we conclude that it can…. [A] corporate entity needn’t assume a racial identity in order to bring a race-discrimination claim under the Equal Protection Clause. Rather, even a “colorless” corporation (our term) can suffer—and sue to vindicate—its own injury caused by a government actor’s intentionally discriminatory conduct, even if that conduct is directed at others….
APEDF alleges that the County discriminated against it because many of its leaders are black, most of its staff and volunteers are black, and it serves the black community. In other words, APEDF alleges that it was treated unequally because it contracts with and “associate[s] with members of a protected class.” Under our precedent, that is enough….
APEDF has plausibly alleged both direct and circumstantial evidence indicating that the County acted with a prohibited discriminatory intent. As for direct evidence, there are the blatantly race-coded texts between Latvala and Bonneau. Latvala’s opening salvo indicates that it was APEDF’s name that initially caught his eye: “Google the African peoples one.” Then, in a follow-up, he stated: “[S]ee if this African group is a hate group.” In the same exchange, he asked whether radio equipment specified in one of the grant applications was “for [B]lack [P]ower 96.” And continuing in the same vein, at a later Board work session, Latvala objected to the fact that APEDF was associated with the Uhurus, who, he said, were reportedly tied to “black nationalist groups.”
Circumstantial evidence also plausibly indicates that the County acted with a discriminatory purpose. First, it appears that the County took “procedural and substantive departures from the norms [it] generally followed” when revoking and denying APEDF’s funding requests. APEDF’s first grant application was ranked fourth out of 55 applications. The Board then awarded funding to the 34 top-ranked organizations, including APEDF. Notably, APEDF’s was the only grant award later revoked, and it was revoked without notice. So too with respect to APEDF’s second grant application: It (too) was ranked highly—this time fourth out of 78 applications. County staff recommended removing three organizations, including APEDF, from the list, but the Board ultimately funded all the applicants on the list except APEDF.
Second, APEDF has plausibly alleged that the County treated similarly situated white-coded comparators more favorably—and, further, that the County’s explanations for its differential treatment don’t hold water. For instance, with respect to the revocation of APEDF’s first grant, Latvala asserted at a Board meeting that the County should “prioritiz[e] people over products and things.” But as APEDF’s complaint explains, while its grant was revoked, four nonprofits that serve predominantly white communities—and are not black-led—obtained funding for similar “products and things”—building renovations, computers, a truck, furniture, etc….
Finally, APEDF has plausibly alleged that the County sought to establish a pretext for its discriminatory conduct. Recall one of Latvala’s texts to Bonneau: “[T]he [U]hurus are claiming we are discriminating if we defund them.” But, he continued, “One of my questions yesterday was about political parties being eligible [for funding] so we are going to use that“—because, he boasted, “this ain’t my first rodeo.” …
Giving it the benefit of all reasonable inferences, APEDF has plausibly alleged that the County intentionally discriminated against it on the basis of race when it revoked its previously awarded grant for radio equipment and then denied its second grant request….
The court rejected, however, APEDF’s due process claim.
Luke Charles Lirot and Rachel Ricks (Law Office of Luke Lirot) represents plaintiff.
This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff’s hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant’s subsequent complaints.
Plaintiff’s operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff’s response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.
Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant’s Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….
The merits of the Parties’ competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant’s conduct during the litigation, the meaning and scope of the District Court’s February 20, 2026 Order …, and whether Defendant’s subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court’s inherent authority….
On March 11, 2025, Defendant served a subpoena on the Miami Beach Police Department seeking video footage of the underlying incident that Plaintiff previously provided to the department. The Miami Beach Police Department produced responsive surveillance footage to Defendant’s counsel on March 26, 2025, and counsel thereafter transmitted that footage to Defendant. On April 2, 2025, before the entry of a protective order, Defendant posted an excerpt of the surveillance footage to his public Instagram account, which had more than 90,000 followers. On April 7, 2025, the Parties jointly moved for entry of a stipulated protective order governing discovery in this action. The Court entered the Parties’ Stipulated Protective Order on April 9, 2025.
The Protective Order provides that material produced by a nonparty is automatically treated as “Outside Counsel Eyes Only” for thirty days following production without the need for an affirmative designation by a party. The Protective Order further prohibits the use of discovery material for any purpose unrelated to this litigation, including any public, commercial, business, or personal purpose. The Protective Order restricts access to material designated as “Highly Confidential” or “Outside Counsel Eyes Only” to specified persons and does not permit unrestricted public dissemination of such material….
On April 10, 2025, one day after entry of the Protective Order, Defendant again posted the surveillance footage to his social-media accounts. On April 16, 2025, Plaintiff formally designated the materials produced by the Miami Beach Police Department as “Highly Confidential,” and Plaintiff’s counsel communicated that designation to Defendant’s counsel. Defendant’s counsel then informed Defendant of the designation, after which Defendant removed the footage. Defendant contemporaneously published a social-media post acknowledging that he was “required under the rules to remove the video.”
Notwithstanding his knowledge of the Protective Order and Plaintiff’s confidentiality designation, Defendant again posted the surveillance footage on September 17, 2025…. Although Plaintiff requested severe evidentiary and litigation-ending sanctions [over this], the undersigned concluded that those sanctions were not then supported by the record because a lesser sanction had not previously been imposed for the violation. The undersigned instead awarded Plaintiff its reasonable attorney’s fees and costs attributable to the sanctions motion and expressly admonished Defendant that the Protective Order was not optional. The undersigned further warned Defendant that any future violation of the Protective Order would be treated with the utmost seriousness, including case-dispositive sanctions.
After further proceedings concerning the amount of the award, the Court ordered Defendant to pay Plaintiff $15,000.00 no later than April 26, 2026….
Separate from the Protective Order dispute, the District Court addressed Defendant’s social-media activity in connection with pretrial scheduling and discovery matters. On February 10, 2026, Plaintiff moved for an extension of time to take Defendant’s deposition and represented that Defendant had repeatedly scheduled and cancelled depositions based on asserted physical limitations while simultaneously publishing social-media content showing him engaged in activities including ice skating, kayaking, and bicycling. The District Court granted Plaintiff additional time to take Defendant’s deposition and stated that it was “deeply disturbed by this trend.” The District Court cautioned Defendant that sanctions, “potentially including the striking of Defendant’s pleadings,” would be imposed if the conduct continued….
[In a] February 20 Order, the District Court observed that the communications between the Parties had become “toxic,” particularly in light of Defendant’s online communications, and agreed with Plaintiff that the time had come for the matter to proceed toward resolution. The District Court stated that it was “deeply disturbed by Defendant’s conduct,” including his “continued social media attacks aimed at Plaintiff and its counsel” and his attempt to effect service at an address he knew belonged to Soffer’s child. The District Court then expressly “DIRECT[ED] Defendant to cease such harassing conduct and social media references to Plaintiff and its counsel during the course of this litigation.” …
In the Motion for Sanctions, Plaintiff contends that Defendant continued to publish social-media content referencing Plaintiff, Plaintiff’s counsel, and this litigation almost immediately after entry of the February 20 Order. Plaintiff identifies multiple occasions between February 26 and May 28, 2026, on which Defendant allegedly violated the Order. [For more details, see the opinion, but here’s one example. -EV] …
The May 24, 2026 social media publications constitute perhaps the most egregious violations of the February 20 Order. To recap, in one video, Defendant alleged that a member of his family was confronted and threatened in Jerusalem by an individual who invoked Plaintiff’s counsel. Defendant specifically identified Plaintiff’s counsel as the attorney representing the hotel in this action and asserted that this lawsuit was filed to “intimidate and silence him” after he publicly alleged that he had been threatened with murder in an antisemitic attack. Defendant further stated that it “remains unknown whether anyone connected to the ongoing litigation had prior knowledge of, encouraged, or otherwise played any role in the confrontation” and that he “has endured nearly two years of legal and public harassment by [Plaintiff’s counsel] and the hotel in an effort to financially and personally destroy him after speaking out about the alleged antisemitic attack.”
In the other May 24, 2026 post, Defendant referred to Plaintiff, Soffer, and Plaintiff’s counsel, Burstyn, by name, and questioned whether Burstyn appeared in materials associated with Jeffrey Epstein. The post also referenced Burstyn’s representation of another client, questioned Burstyn’s role in events preceding the death of Virginia Giuffre, criticized Burstyn’s representation of Plaintiff, and concluded with an assertion concerning public distrust of attorneys, stating that Plaintiff’s counsel “is the reason that 84% of Americans believe that attorneys are scumbags.”
These posts did not merely allude to Plaintiff—they expressly identified Plaintiff, Plaintiff’s counsel, and the upcoming trial. They therefore violated both components of the District Court’s directive. They constituted social-media references to Plaintiff and Plaintiff’s counsel, and they also plainly continued the very social-media attacks that prompted the District Court’s intervention. These publications therefore fall squarely within the conduct the District Court sought to halt and cannot reasonably be characterized as compliance with the February 20 Order….
And the Magistrate Judge therefore recommended sanctions against the Defendant:
The totality of the record demonstrates that Defendant willfully chose to disregard a clear judicial command. It is undisputed that Defendant knew of the District Court’s February 20 Order. Nevertheless, Defendant continued making prohibited social-media references over approximately three months.
The violations were not confined to a single publication or a single day. Instead, Defendant repeatedly returned to social media to discuss Plaintiff, Plaintiff’s counsel, and the pending litigation. That pattern is inconsistent with negligence or misunderstanding….
Further, Defendant knew the significance of an order, the requirement that he comply with an order, even if he disagreed with it, and the consequences for failing to follow an order. Not only has Defendant already been sanctioned for violating an order of this Court, but Defendant was also warned about the potential for graver consequences if he violates any other orders….
Turning to the issue of whether lesser sanctions would suffice, the record contains multiple warnings of escalating specificity. The District Court first warned Defendant on February 10, 2026 that continued misconduct could result in striking Defendant’s pleadings. Then, on February 20, 2026, the District Court directed Defendant to cease social-media attacks and references to Plaintiff and its counsel. Less than one week later, the undersigned warned Defendant that Court Orders are not optional, that Defendant could not take matters into his own hands, and that future violations would be treated with the utmost seriousness, including the potential for Rule 37(b)(2)(A) sanctions. Those warnings did not produce compliance. Another admonition would repeat a measure the record has already shown to be ineffective with Defendant.
Further, the Court previously imposed a sanction in the form of a $15,000.00 fee award based on Defendant’s knowing violation of the Protective Order. The violations of the February 20 Order followed that ruling and the accompanying admonition…. [T]he prior monetary sanction did not deter Defendant from again disregarding a pretrial directive….
At his deposition, Defendant admitted under oath that his social-media publications were intended to cause Plaintiff and Plaintiff’s counsel to reconsider their conduct and litigation strategy. Consistent with that testimony, Defendant’s May 24 and May 28 posts publicly accused Plaintiff of attempting to destroy him through this litigation, attacked Plaintiff and Plaintiff’s counsel personally notwithstanding the Court’s directive prohibiting such conduct, and attempted to rally public opinion by requesting “your support” in his trial “Against ‘that Hotel’ in Miami” where he will “absolutely defeat the antisemitism-deniers.”
Defendant therefore used repeated violations of the Court’s Order as an extrajudicial litigation tactic designed to influence whether, and under what conditions, Plaintiff continued to prosecute its claims against him. That objective directly implicates the integrity of the judicial process. The pattern of Defendant’s repeated, willful violations of the February 20 Order when coupled with his stated intention behind his social-media posts and his history of sanctions and admonitions demonstrate that lesser sanctions will not suffice.
Accordingly, the undersigned concludes that striking Defendant’s Answer and Affirmative Defenses, dismissing his Counterclaim with prejudice, and entering default judgment as to liability on Plaintiff’s well-pleaded claims constitute appropriately tailored remedies that address the institutional harm caused by Defendant’s abuse of the judicial process. {This recommendation is not based upon any determination that Defendant’s affirmative defenses or Counterclaim lack substantive merit. Rather, it is based upon Defendant’s willful violation of this Court’s Order, his deliberate use of those violations as a litigation tactic, and the demonstrated inadequacy of lesser sanctions to secure compliance or preserve the integrity of these proceedings.}
With that said, the recommendation of entry of default judgment would not, by itself, establish the amount of Plaintiff’s damages. Plaintiff would remain obligated to establish any unliquidated damages through appropriate evidence and further proceedings and Defendant would be able to defend against such damages claims….
[T]he Court [also] finds it appropriate to award Plaintiff its reasonable attorney’s fees and expenses incurred as a result of litigating the Motion for Sanctions. The amount should be determined through a separate fee submission with Plaintiff bearing the burden to establish the reasonableness of its counsel’s hourly rate along with the reasonableness of the requested fees….
Sean A. Burstyn (Burstyn Law PLLC) represents the hotel.
When former FBI Director James Comey used Instagram to share a photo of seashells arranged to form the numerical slogan “86 47” last year, federal prosecutors claim, he was publicly threatening to assassinate President Donald Trump. Yet before Comey posted that picture, Amazon vendors had offered more than 200,000 products featuring that supposedly homicidal phrase or variations on it, including “86 46” (referring to Joe Biden) and “86 45” (referring to Trump during his first term).
How many federal law enforcement inquiries did the sale or purchase of those products generate? Zero.
In a motion they filed on Tuesday night, Comey’s attorneys cite that information from Amazon to support their argument that the April 28 indictment charging him with threatening the president should be dismissed because the prosecution is selective and vindictive, driven by Trump’s personal animus against a longtime nemesis. They also submitted an affidavit in which Patrick J. Fitzgerald, one of Comey’s lawyers, summarizes evidence that the defense obtained from the government through discovery. That evidence confirms that the Secret Service illegally surveilled Comey after he posted the seashell picture, and it contradicts Acting Attorney General Todd Blanche’s account of how the case unfolded.
James Comey/Instagram
After Trump fired Attorney General Pam Bondi on April 2, Blanche was so desperate to secure his nomination to replace her that he eagerly pursued a legally absurd case against Comey based on a ubiquitous expression of opposition to the president that is clearly protected by the First Amendment. By posting that seashell photo, Blanche claimed with a straight face, Comey had committed two federal felonies punishable by up to 10 years in prison.
Comey took the picture at the center of the indictment while vacationing in North Carolina. He posted it on on May 15, 2025, with the jokey caption “cool shell formation on my beach walk.” He took the post down within a few hours, offering this explanation: “I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”
We already knew that the Secret Service tailed Comey and his wife as they drove back to their home in Virginia the day after the Instagram post. That was ridiculous enough, since it suggested that the former federal prosecutor, deputy attorney general, and FBI director might pose an active threat to the president’s life. The new filings show that the Secret Service also submitted an “emergency” request for cellphone location information from Verizon so it could track Comey as he made his way back to Virginia.
The day of the Instagram post, a Secret Service special agent in charge (SAIC) “asked me about the possibility of pinging Comey’s cell phone,” an assistant to the SAIC (ATSAIC) reported in an email the next day. “I said it could be done, but it would be a bad idea.”
Why? Under 18 USC 2702, a cellphone provider generally may not “knowingly divulge” customer records, but there is an exception when a “governmental entity” asks for the information if “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.” In this case, there was no evidence to support such a belief.
“To declare an exigency exception” to the usual warrant requirement, the ATSAIC noted, “we needed to believe that there is an imminent threat to life or limb.” At the time, he added, “we did not believe that anyone’s life was in immediate danger,” so “legally it was a bad idea to ping the phone.” The ATSAIC said he “argued against taking this option” because it was “legally questionable.” The SAIC “agreed with me but said we might do it anyway.”
And so they did. On May 16, an agent filled out a form asking Verizon for Comey’s location information, averring that the surveillance was “relate[d] to an emergency involving danger of death or serious physical injury to a person, necessitating disclosure without delay of information relating to that emergency.” The agent, whose name is redacted in the copy of the form that Comey’s lawyers filed in the U.S. District Court for the Eastern District of North Carolina, certified that “the foregoing is true and correct.”
That agent said he “was asked by the SAIC to ping the cellphone of James Comey via exigency.” He added that he did so “with hesitation.” An assistant agent in charge (ASAIC) reported that “the # 3 guy at DOJ ‘wanted to ping the cellphone via an exigency request.'”
The Secret Service also interviewed Comey by phone the day of the Instagram post and again, in person, at the agency’s headquarters in Washington, D.C., the next day. That interview, according to Fitzgerald’s affidavit, “was attended in person by the General Counsel for Homeland Security, the General Counsel for the Secret Service, a Deputy Chief Counsel for the Secret Service, an Assistant U.S. Attorney from the Eastern District of Virginia, an ATSAIC from the Secret Service and a Special Agent from the Secret Service.”
During a Fox News interview that morning, Trump had declared that Comey’s seashell picture “meant assassination” and “says it loud and clear.” Comey, he averred, was “calling for the assassination of the president.”
A couple of hours after that interview, the Secret Service decided to start treating the phrase “86 47” as a potential indicator of violent intent. “Effective immediately, please include ‘8647’ in manual keyterm searches for threats to POTUS,” the directive said, because those four digits “could be coded threat language for ‘kill the 47th President.'” Although “we will be in for a surge of discoveries/reports,” it added, “please keep management informed and we will help manage the surge.”
By the end of the day, the Secret Service had ditched that new policy. “As we figured,” an assistant director said at 11:12 p.m., “this is a lot and we can’t, nor should be expected to document all of these references to 8647. We should go back to business as usual, unless someone is inciting violence along with those numbers or adding egregious and threatening language.”
Meanwhile, Trump was keenly interested in the Secret Service interview with Comey. In an email, SAIC John Bush, who was in charge of the Presidential Protective Division and traveling with Trump, said he was “getting LOTS of questions” about the interview and asked if he could “get an immediate readout.” A Secret Service supervisor replied that he would “ask for the preliminary interview notes as soon as they are available.” Around 12:15 p.m. that day, a Secret Service timeline noted, “POTUS was requesting a copy of the interview notes to use in his 6 pm press conference.” Bush said “it is a hot topic on the plane and [the president] is very interested.”
Bush received a summary of the 45-minute interview around 9:30 p.m., three hours after it was concluded. According to the Secret Service, Comey “presented a professional appearance, was eager to speak and agreed to the consensual conversation.” He “answered all questions posed to him, and his attorney never stopped the interview.”
The Secret Service had closed its investigation by November, classifying it as a “non-referred matter,” meaning “the determination can be made based upon initial investigation that there is no risk of an unwanted outcome and there is no judicial outcome.” But then the FBI launched its own investigation.
The day that Comey posted the seashell picture, FBI Director Kash Patel said his agency was “aware of the recent social media post by former FBI Director James Comey, directed at President Trump.” He added that “primary jurisdiction is with [the Secret Service] on these matters and we, the FBI, will provide all necessary support.”
Apparently unsatisfied with the outcome of the Secret Service investigation, the FBI shifted from support to instigation. But although its probe officially started on October 30, the flurry of investigative activity that Fitzgerald describes did not begin until April 13, about two weeks before the indictment, when the FBI finally got around to interviewing “Person-1,” a hostile acquaintance of the Comeys whom the Secret Service had interviewed the previous May.
Person-1 had exchanged text messages with Comey’s wife, Patrice, that resulted in the decision to take down the Instagram post. Patrice Comey reported that “Person-1 had contacted her to advise her that the post was being viewed by some as a call to violence against President Trump.” Person-1, who had worked in the restaurant business, initially interpreted the “86” in Comey’s photo in light of that experience (“like we’re 86 on broccoli”). But after seeing right-wing reactions to the picture on social media, Person-1 decided that Comey’s message had violent connotations.
Person-1 said that impression was reinforced by comments that former Trump lawyer Rudy Giuliani had made during a podcast five days after the Instagram post. Comey was “guilty as hell,” Giuliani said. Given Comey’s experience as a prosecutor in organized crime cases, Giuliani averred, he would have known that eighty-six means kill in mafia lingo. But Giuliani, who also had worked on organized crime cases as a federal prosecutor, conceded during a Newsmax interview the same day that “I didn’t know what it meant until my boys told me.”
In an effort to support a sinister interpretation of Comey’s picture, the FBI’s Charlotte field office searched the agency’s database of investigations. “These searches produced inconclusive results regarding the use of ’86’ or ‘eighty-six’ as a slang term,” it reported. “Additionally, the searcher was unable to determine if the subject [Comey] would have had access or been exposed to any potential files meeting the search parameters.”
The FBI also searched records related to United States v. John Gambino, an organized crime case that Comey prosecuted in 1993, and United States v. Salerno, which Giuliani had prosecuted in the mid-1980s. Those searches, which continued into the night before the indictment, likewise found no “86” references.
On May 6, about a week after the indictment, the FBI case agent conducted telephone interviews with two retired agents. One agent, who “had worked organized crime cases in New York and was specifically assigned to the FBI squad that investigated the Gambino crime family,” reported that he “was familiar with the term ’86’ and used it and heard others use it throughout his life.” He “never understood the term ’86’ to mean to kill.” He “did not recall any instances in which he heard organized crime subjects or sources use ’86’ to mean to kill someone.”
The other retired agent, who “had worked organized crime cases in New York for a ‘very long time,'” could not recall “any instance where ’86’ was used in the organized crime context to mean ‘kill.'” He “understood the term to be used by organized crime to mean ‘get rid of things.'”
The day after those interviews, at the direction of W. Ellis Boyle, the U.S. attorney for the Eastern District of North Carolina, the FBI “conducted both open-source queries and artificial intelligence searches—namely, on Google AI and ChatGPT—about the term ’86,'” Fitzgerald says. Regarding the government’s premise that eighty-six means kill, one result said “many career law enforcement officials, including former FBI agents, have publicly disputed this, stating they never heard ’86’ being used for murder in 35+ years of duty, considering it purely a restaurant or bar [term] for removal.” Another query “returned a document indicating that the Merriam-Webster dictionary does not officially enter a violent meaning for ’86’ because ‘it is relatively recent and lacks widespread use compared to its hospitality meanings.'”
In a May 8 telephone interview with the case agent, by contrast, Salvatore “Sammy the Bull” Gravano, a cooperating witness in United States v. JohnGambino, “stated his belief that Mr. Comey had to know what the term ’86’ meant ‘as it related to killing someone.'” You would not expect that term to show up in legal or investigative records, Gravano said, because “members of organized crime families refrained from using terms such as ’86’ that were commonly used in day-to-day business in the presence of law enforcement officers.”
Regardless of how often gangsters use eighty-six to mean kill, it is fair to say that is one of the verb’s possible meanings. But it is by no means the only or most common usage. The term, which originated in the mid-20th century as a reference to banning unwanted bar customers, has since been extended to many other contexts. Generally speaking, it means to “reject” or “discard,” which explains why federal law enforcement agencies have never previously viewed phrases like “86 47” as grounds for criminal charges.
Since 2007, the FBI has maintained a database of “all communicated threats received by the FBI, comprised of thousands of images of letters, envelopes, and other communications.” Comey’s lawyers asked the government how many times eighty-six had appeared in that database prior to his indictment. The answer: zero.
To convict Comey, prosecutors have to prove beyond a reasonable doubt that he “consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” the minimum First Amendment standard for “true threats” under the Supreme Court’s 2023 ruling in Counterman v. Colorado. One of the charges requires more: The government has to prove that Comey wanted people to view his seashell picture as a threat to kill the president.
In a Meet the Press interview five days after he announced Comey’s indictment, Blanche conceded that the phrase “86 47” is “posted constantly” without triggering criminal charges. But in Comey’s case, he said, it was “not just the Instagram post” that led to the indictment.
“This was an investigation that lasted 11 months,” Blanche said. “If the only facts that existed was the posting of the Instagram [message], obviously that wouldn’t have taken 11 months.” The investigation, he claimed, turned up “witnesses,” “documents,” and “materials” that will be used to “prove intent.”
That account glosses over the fact that the Secret Service, which Patel said had “primary jurisdiction” in the case, closed its investigation after concluding that there was “no risk of an unwanted outcome” and no basis for criminal charges. And when Blanche suggested that the government already had enough evidence to convict Comey, the FBI was still scrambling to shore up the government’s case.
The post-indictment investigation that Fitzgerald describes, including the interviews with former FBI agents and the A.I. queries, mostly undermined that case. And while the Sammy the Bull interview supports the idea that eighty-sixcan have a murderous meaning, such evidence is a far cry from proving Comey understood that when he posted his picture, let alone that he intended it to be interpreted that way.
Still, Blanche was telling the truth when he said it is “not just the Instagram post” that underlies Comey’s indictment. The decision to charge Comey with two federal felonies based on constitutionally protected speech would be inexplicable but for Trump’s personal vendetta against him and Blanche’s eagerness to exact revenge at his boss’s behest.
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
The court held that Heidi, who was sued as one of the defendants, couldn’t remain pseudonymous:
Throughout this litigation, Defendants have maintained that [Heidi Doe]’s name should be sealed…. Defendants … assert that [Heidi]’s true name must be kept under seal on the basis that her identity is protected by the District of Columbia reporter’s shield law. In the alternative, they argue that good cause exists under Rule 26(c) to maintain [her] pseudonym….
Defendants still have not shown [Heidi] is protected by the Shield Law. The District’s Shield Law prohibits the compulsory disclosure of “the source of any news or information procured by [a] person while employed by the news media and acting in an official news gathering capacity,” creating an absolute privilege for the identities of sources.
The court previously denied Defendants’ motion on the ground that they did not present any evidence—”not even a declaration”—to support treating as a source rather than as a journalist. Defendants this time come armed with a declaration from [Heidi], but the declaration only reinforces the court’s previous determination that [Heidi] is not a source within the meaning of the Shield Law.
In her declaration, [Heidi] states that she was motivated to pursue “undercover journalism” to expose corruption and promote transparency as to matters of public interest and explains that she was the one who “came up with the idea to film [Plaintiff] as a potential subject leading to important information for the public.” She was trained by OMG in the “techniques of undercover journalism,” and she received $7,000 from OMG after the publication of the videos and articles about Plaintiff “as an appreciation for [her] contribution,” describes her activities as “collecting … recordings and making observational notes,” “provid[ing] all this raw information to OMG’s team,” and “answer[ing] their questions about context,” and she compares herself to “prior undercover journalists.” Defendants refer to [Heidi] in their motion to dismiss as a “citizen journalist” or “undercover reporter,” and her activities as “undercover newsgathering,” And they describe [Heidi]’s relationship with OMG and O’Keefe as a “working relationship” wherein [Heidi] was “employed or contracted” by Defendants “to conduct an investigation of people like Mr. Mannina, and in the course of that employment she carried out the undercover news investigation.” The list goes on. All of these activities suggest [Heidi] was working for OMG and O’Keefe and was not a source.
Nothing in the declaration makes [Heidi] any more comparable to the protected “source” in Grunseth v. Marriott Corp. (D.D.C. 1994), which Defendants again cite to support their position. [Heidi]’s collaboration with OMG and O’Keefe does not at all resemble the leaking of internal records by a non-party employee of the defendant company in Grunseth. The Shield Law therefore is not a basis on which [Heidi] can proceed pseudonymously….
As for Rule 26(c), the court is not moved by Defendants’ conjecture about the harassment may face if her identity were unsealed. Rule 26(c) permits a court to, with “good cause,” withhold from the public certain information “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” In this circuit, courts balance five “non-exhaustive” factors to determine whether a party may proceed anonymously:
whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature;
whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;
the ages of the persons whose privacy interests are sought to be protected;
whether the action is against a governmental or private party; and, relatedly,
the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
Because proceeding under a pseudonym is a “rare dispensation from the court,” the party seeking pseudonymity “bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name.” “Speculative assertions of harm will not suffice.”
Defendants chiefly focus on the second factor. They argue that public disclosure of [Heidi]’s name may invite harassment. Defs.’ PO Mot. at 9–12. [Heidi] attests that she fears [various things, all of which are redacted -EV].
Though the court is sympathetic to [Heidi]’s anxieties, that is not enough to continue to proceed under a pseudonym. Defendants admit that “[n]o specific threat has been made against her yet”—only that she “could” be doxed or “could” suffer reputational or emotional harm. Defendants have not “provide[d] evidence that psychological damage or violent threats are anticipated if” [Heidi]’s identity is disclosed. [Heidi]’s fears about [redacted] is entirely speculative. And though she alleges [redacted], she does not claim any threatened violence or harm. Even [redacted] is not enough, for “[m]ere embarrassment and harassment”—much less the mere possibility of them—are “insufficient to demonstrate the sort of retaliatory harm necessary to satisfy this showing.” … “[R]equests to proceed anonymously have been denied where the [party] merely cites personal embarrassment as the basis of the need for confidentiality.” And Defendants have offered nothing but speculation that there was [redacted].
Perhaps continued pseudonymity would not materially prejudice Plaintiff, who is now aware of [Heidi] ‘s identity. But “[l]awsuits are public events.” And “[i]dentifying the parties to the proceeding is an important dimension of publicness.” The public interest in open judicial proceedings “is a legitimate reason to requiring unsealing” [Heidi] ‘s name.
The other factors either do not weigh in favor of anonymity or fail to tilt the balance in that direction. [Heidi] is a private party, but she is not a minor, and this case does not involve sensitive or highly personal matters, see In re Sealed Case II (D.C. Cir. 2020) (listing as examples of “sensitive or highly personal matters” “sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors”). And the fact that [Heidi] engaged in First Amendment–protected journalistic activities also is not reason alone for this court to grant the “rare dispensation” of pseudonymity. On the contrary, by volunteering to work with OMG and agreeing to dupe Plaintiff knowing that her efforts could be published by OMG on the internet and thus reach a worldwide audience, she accepted some risk that her identity would be uncovered through litigation or otherwise.
The court therefore denies Defendants’ motion for a protective order. [Heidi] must proceed as a defendant in this case like any other under her true name and identity. The court, however, is amenable to a protective order keeping under seal [Heidi]’s address and contact information. The parties may jointly propose a protective order with that narrowed scope.
The court will unseal the entirety of its 60 Memorandum Opinion and Order, thereby disclosing Defendant Heidi Doe’s true name, unless she timely notices an appeal from the denial of the motion to permit her to proceed pseudonymously,
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
Mannina sued on various grounds; I discussed the court’s treatment of plaintiff’s defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here’s what the court had to say about the wiretapping claim:
Plaintiff alleges that the statements made and recorded while on the dates and during the confrontation at the Wharf are oral communications intercepted for the purpose of committing a tortious act in violation of the D.C. and federal wiretapping statutes.
Under both statutes, it is unlawful to “intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept any wire or oral communication.” An “oral communication” is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”
Even where that expectation is justified, both the D.C. and federal wiretapping statutes permit the interception of oral communications as long as one party to the communication has consented to the recording. But both also provide that this single-party consent rule does not apply if the communication is intercepted “for the purpose of committing any criminal or tortious act.”
Defendants first argue that Plaintiff has failed to plausibly allege that his expectation that his statements would not be intercepted was justified, because (1) [redacted] was a “new acquaintance” with whom he was meeting for the first time; (2) the dates were in public restaurants full of other people; (3) [redacted]’s use of a phone during the dates to send texts meant Plaintiff was on notice that was in possession of a recording device; and (4) recording devices were clearly used during the Wharf “ambush.” Defendants … mistakenly ask the court to draw inferences in their favor from the facts alleged in Plaintiff’s complaint. And the inferences they urge “call[] for the consideration of a host of intensely fact-bound circumstances.” So “[a]t this early stage of the proceedings, Plaintiff[‘s] allegations are sufficient to permit an inference that the communications at issue were made with a reasonable expectation that they would not be subject to interception.”
In a final effort, Defendants aver that the tortious-purpose exception is unconstitutional under the First Amendment, on its face and as applied. Defendants advanced the same arguments before the court in Democracy Partners v. Project Veritas Action Fund (Democracy Partners II) (D.D.C. 2020), which held that the wiretap statutes are constitutional because they are content neutral and clear intermediate scrutiny…. The court denies Defendants’ motions to dismiss on this issue but will not decide it now. This decision is currently on appeal, and the D.C. Circuit held oral arguments in January of this year. The court will revisit the issue on summary judgment, likely at that point with guidance from the Circuit. Permitting the wiretapping claims to proceed will not enlarge the scope of discovery, given that all claims rely on the same allegations.
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
Mannina sued on various grounds; I discussed the court’s treatment of plaintiff’s defamation and false light claim in a separate post, but here’s what the court had to say about the fraudulent misrepresentation claim:
A claim of fraudulent misrepresentation requires proof of “(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation.” Plaintiff alleges that [redacted] “knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes.” Using her “inauthentic profile,” falsely represented she was romantically interested in Plaintiff, when in fact “[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them.” And her false representations were “material to inducing” Plaintiff to go on the two dates with [redacted] and discuss his views and career.
{OMG and O’Keefe’s motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of “blam[ing] a lady for not being honest as to her motives” instead of “blaming himself for having a big mouth and spilling secrets.” Apparently, his “audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan.”}
Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because “a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern” and because the First Amendment “does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern.” …
“[T]he Supreme Court has said in no uncertain terms that ‘generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.'” Food Lion, Inc. v. Cap. Cities/ABC, Inc. (4th Cir. 1999). Thus, “far reaching as they may be,” First Amendment protections “do not place the unlawful acquisition of information beyond the reach of judicial review.” …
To be sure, it will be Plaintiff’s burden to prove that Defendants are liable for damages arising out of Plaintiff’s mental distress, loss of employment, and reputational consequences, and to establish causation as to each. “[B]ut certainly at this point it would be premature to preclude [him] from trying to do so.”
Plaintiff otherwise has plausibly alleged fraudulent misrepresentation. Plaintiff has alleged with sufficient “particularity”—as required by Rule 9(b)—that [redacted], in coordination with OMG and O’Keefe, knowingly made false representations about her political views and purpose for being on Bumble upon which Plaintiff relied to make statements that Defendants recorded, edited, and published, causing the loss of his employment.
Defendants argue that liability for fraud cannot arise out of non-commercial or transactional settings and that the particular context of a date renders misrepresentation and reliance untenable, but they offer no case law to either effect. What’s more, [redacted] ‘s conduct was not akin to simply misrepresenting herself to impress a suitor; she deliberately fabricated a persona and received a fee to elicit information from Plaintiff that she had reason to believe OMG and O’Keefe would use, at least in part, for commercial purposes. {OMG and O’Keefe embedded paid advertisements within all three Videos.} The court therefore will not dismiss the fraudulent misrepresentation claim.
In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.
The publication of these videos caused Plaintiff to lose his job. Plaintiff subsequently brought this action alleging defamation, false light, fraudulent misrepresentation, conspiracy, and violations of the District of Columbia and federal wiretapping statutes….
Plaintiff alleges that, “[t]hrough numerous edits and splices from statements made throughout both dates, and even between each date, the various videos and articles … were created to intentionally provide false or implied evidence to support Defendant OMG and O’Keefe’s fabricated claims that [Plaintiff] was essentially attempting to launch an unlawful coup against President Trump.”
Specifically, he alleges that “Defendants falsely state or imply in their [publications] that Mr. Mannina was a senior Pentagon Official providing direct advice to the [Joint Staff] and part of a subversive ‘Deep State’ that held covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration … in highly secure locations, including ‘The Tank’, that were ‘reserved for critical defense deliberations.'” “Defendants further falsely state or imply that [Plaintiff], in his official capacity, was lying, spying, conspiring to commit a coup, and acting unethically.” …
Defendants argue that, “as a matter of law,” the statements “[c]haracterizing Mr. Mannina as being part of a ‘Deep State’ effort or a ‘coup’ [are] the kind of political hyperbole and opinionated commentary that is not meant as a literal accusation of criminal conduct” and therefore are “fully protected by the First Amendment.” They cite much case law to stand for the proposition that the First Amendment protects “[s]tatements of political opinion, epithets, and hyperbolic characterizations” because “they are not provably true or false statements of fact.” Indeed, the First Amendment protects “statements that cannot ‘reasonably be interpreted as stating actual facts’ about an individual” to ensure that “public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole.'”
But the problem with Defendants’ argument is that the disputed statements are more than mere opinion. For example, Defendants argue that “‘Deep State’ is a subjective pejorative used in political rhetoric to suggest disloyal bureaucratic opposition, and accusing someone of a ‘coup’ in this figurative context is similarly a dramatic way to impugn one’s political allegiance or motivations.” But a reader or viewer of the publications could construe these characterizations as fact.
To start, “[a] classic example of a statement with a well-defined meaning is an accusation of a crime.” Accusing someone of attempting to stage a “coup” clearly falls within that example. And such an accusation is “obviously verifiable” and defamatory per se.
Turning to context, the statements appear not in an editorial or op-ed section of a newspaper, where readers are “fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper,” but rather in publications that Defendants describe as being the product of “undercover journalism” or “investigative journalism.” “Cautionary language” such as “In my opinion …” or “Is it not true that … ?” that would cause a reader to “discount that which follows” as fact also is absent. Moreover, the videos appear on OMG’s website, which touts itself as “uncover[ing] the truth.” All of these could “influence the average reader’s readiness to infer that a particular statement has factual content.”
OMG and O’Keefe’s motion makes the point. Those Defendants insist that Plaintiff “is nothing less than a traitor to our country” with “seditious thoughts and plans” who “plan[ned] to undermine the President of the United States” but “got caught.” And they contend that “[t]his was Mr. Mannina’s chance in life to measure up for his cause of sedition against the government of the United States, and for a pretty smile, he chose to brag and reveal his secrets.” Defendants apparently believe that Plaintiff is in fact involved in sedition.
And so do the viewers of OMG’s videos “to whom [the statements were] addressed.” On each of the Videos, hundreds of viewers implicitly or explicitly accuse Plaintiff of being a “criminal” or “traitor” who should be charged with “treason” or “sedition.” These facts render it plausible that the disputed statements can “reasonably be interpreted as stating actual facts about an individual.”
The implication that Plaintiff is part of the “Deep State” is a closer call, but that too can be interpreted as stating facts when considered in the overall context. The D.C. Circuit has held that general accusations such as that someone is a “fascist,” “Marxist,” or even “political activist” are “hopelessly imprecise” and “obviously unverifiable.” Where those terms were used to denounce someone with whom the speaker disagrees or to express “that a person’s political outlook is not respectable,” they are constitutionally protected opinions.
But that does not mean such terms are not capable of being factual in other contexts. For example, labeling someone as a “Leninist” or “Communist-fronter” may be considered a defamatory factual assertion where those characterizations were also reinforced by additional accusations that the person advocated for “a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship.”
The “Deep State” implication plausibly resembles this latter example. Simply accusing someone of being part of the “Deep State” may be an expression “that a person’s political outlook is not respectable.” But Defendants have additionally asserted that, as part of the “subversive ‘Deep State,'” Plaintiff was a “senior Pentagon official” who held “covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration” and “was lying, spying, conspiring to commit a coup, and acting unethically.”
The imputation that Plaintiff is part of the “Deep State,” at least in this case, then, can reasonably be interpreted to state a fact that Plaintiff, by way of membership in the “Deep State,” is a government official conspiring to commit crimes against the Trump administration. That is not “obviously unverifiable.” …
[C]haracterizing statements such as that Plaintiff was part of a coup or the Deep State as opinion or political epithet does not negate that they “may still imply a false assertion of fact”—that Plaintiff is a government official involved in subversive criminal activity. And Plaintiff has alleged that some of the facts on which Defendants base these implications are “incorrect or incomplete,” such as that Plaintiff is a “Top Pentagon Advisor” or a “Senior Advisor” to the Joint Staff, much less a government official at all, or that he met with military leaders in the Tank in order to undermine the Trump administration. So even those statements—which Defendants have argued are not actionable because they are not disparaging but rather “over-credit[] his importance”—are relevant to Plaintiff’s defamation claim….
The court also concluded that it wasn’t clear that plaintiff was a public figure (even a limited-purpose public figure). “To be clear, the court does not foreclose Defendants from making the case on summary judgment that Plaintiff is a limited-purpose public figure. At this stage, it is at least plausible that Plaintiff is not.” Because of this, he had to plead only negligent falsehood, not reckless or knowing falsehood. “And Defendants do not argue that Plaintiff failed to plausibly allege ‘at least negligence.'”
Given that the court denied the motion to dismiss, “Plaintiff’s defamation claim can proceed to discovery. So, too, can Plaintiff’s false light claim.”
I’ll blog about some of the other issues in the case in separate posts.
Bradley Prescott Moss and Mark S. Zaid (Law Offices of Mark S. Zaid, P.C.) represent plaintiff.
