In the Report and Recommendation issued on September 22 by Magistrate Judge Kenneth Schroeder in Doyle v. James—later affirmed by Judge John Sinatra (W.D.N.Y.)—the plaintiffs’ claims are laid out as follows:
Paul Doyle, the lead pastor of Cornerstone Church in Batavia, New York, serves as the church’s senior pastor. Cornerstone is a modest rural congregation with a long-standing culture of service and outreach to the community. The church has cultivated ties with communities of color and actively assisted victims of the Buffalo mass shooting, among other initiatives.
Clay Clark is the proprietor of The Thrive Time Show, a widely successful business-oriented podcast. Clark has twice earned the honor of US Small Business Administration Entrepreneur of the Year and has received additional business recognitions.
“ReAwaken America” represents a conservative political movement that organizes events nationwide. The ReAwaken America Tour (“the Tour”) had planned a stop in Rochester, New York, on August 12, 2022, at the Main Street Armory. After local residents and politicians voiced concerns, the Armory canceled the event.
Subsequently, the Tour contacted Doyle to ask whether Cornerstone would host the gathering. Doyle convened with Rochester groups to learn about their worries and concluded that the Tour’s portrayal in media and by officials did not align with reality. He therefore agreed to host the event at Cornerstone, driven by a belief that free speech should not be curtailed and that those exercising it should not face intimidation—especially from government figures. The event was slated for August 11–13, 2022.
On August 3, 2022, New York Attorney General Letitia James sent a letter to Clay Clark and General Michael Flynn—a co-organizer of the Tour—addressed to Doyle at his home, care of Cornerstone Church. The plaintiffs contend that the letter was an effort to covertly intimidate and pressure them to cancel the event.
In part, James’s letter stated:
As New York’s chief law-enforcement official, I harbor substantial concerns that the ReAwaken America Tour’s upcoming event at Cornerstone Church in Batavia on August 12 and 13 could incite extremist or racially motivated violence. These concerns revolve around the dates chosen, which coincide with the five-year anniversary of the Charlottesville, Virginia, white supremacist rally, and around past extremist remarks made by you and other featured speakers on the tour.
I am particularly troubled by the speakers’ regular references to white nationalist ideas tied to the “Great Replacement Theory,” a belief used to forecast white genocide and the supposed replacement of native-born Americans with immigrants. This theory is commonly associated with violent acts, including the lethal shooting at a Tops Friendly Markets in Buffalo. In light of this violent incident and other recent acts of racially motivated violence nationwide and in New York, the Office of the Attorney General is concerned that such rhetoric could contribute to violent or unlawful conduct at the Tour’s upcoming event….
The Office of the Attorney General reminds you that New York law bars racially motivated violence, harassment, or interference with another person’s civil rights. New York Civil Rights Law § 79-n authorizes the Office of the Attorney General to investigate acts of violence, intimidation, threats, or harassment directed at individuals based on an individual’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation. Beyond actual damages, anyone violating this statute can face penalties of $5,000 per violation.
In addition, New York Civil Rights Law § 40-c prohibits discrimination against another person in the exercise of civil rights—including the right to peaceful protest—on the basis of similar protected characteristics. New York Executive Law § 63(12) further authorizes the Attorney General to act against businesses engaging in substantial fraud or illegality—including breaches of New York’s civil rights laws.
The Attorney General’s Office has a duty to shield New Yorkers from extremist and racially charged violence. We stand ready to investigate any breach of the statutes above and, if necessary, to enforce them to the fullest extent. You are instructed to implement all necessary measures to guarantee that the event fully complies with New York civil rights laws and all other applicable state and federal rules.
Your cooperation in ensuring a peaceful and lawful event is appreciated.
Plaintiffs contend that James’s implications of racial discrimination and fraud involving the church and the event were widely disseminated by various media outlets, harming Doyle’s reputation, the church’s reputation, and Clark’s reputation as well. They further charge that James did not undertake a reasonable inquiry to verify her concerns, arguing that a proper inquiry would have revealed Cornerstone’s charitable history, the strong standing of both plaintiffs, and the absence of any publicly documented violence by the Tour, nor any crimes or illicit activity attributed to it. They also claim they had reached out to law enforcement and local officials to ensure safety and compliance with all local rules and ordinances.
Plaintiffs further assert that none of the ReAwaken America events has ever been associated with the racial theories or violence James linked them to, and that her statements were negligent, reckless, and an improper abdication of her duty to exercise due diligence in her capacity as Attorney General, constituting an abuse of power.
Plaintiffs allege that James’s politically charged letter created a smear on their names and damaged relationships within the community. The publicity around James’s letter led to numerous ticket cancellations by people who had planned to attend before the false, derisive reports were publicized. Ultimately, the plaintiffs say they had to hire additional security to safeguard participants and attendees. In the end, the event proceeded without incident.
The court determined that the plaintiffs had sufficiently alleged that the letter was unconstitutionally coercive:
To assert a claim that the government violated the First Amendment by coercion, a plaintiff must plausibly claim conduct that, when viewed in context, could be reasonably understood as signaling a threat of adverse governmental action aimed at punishing or silencing the plaintiff’s speech. …
Here, after tying the plaintiffs and the event’s speakers to racist theories and past episodes of racist violence, the defendant enumerated several state anti-discrimination laws and penalties, concluding that her office “stands ready to investigate any violation of the laws above and, if necessary, to enforce them to the fullest extent.” The plaintiffs contend that they perceived this letter as a covert threat intended to force them to cancel the event, with the looming possibility of prosecution.
As this Court previously noted in its RR&O:
The defendant’s letter carries a heavy, ominous tone and tells the plaintiffs that: (1) she regards their prior statements as “extremist”; (2) she believes such rhetoric could lead to “violent or unlawful conduct” at the upcoming event; and (3) she “stands ready” to investigate and enforce violations of New York laws, including the penalties she lists.
Such wording could reasonably be understood as threats rather than a government official’s speech that is merely a sincere appeal in support of a political viewpoint. …
[D]efendant’s claim that her letter can only be read as a request to avoid or prevent unlawful conduct fails at the pleading stage. In NRA v. Vullo (2024), the Supreme Court rejected that argument:
Similarly, this Court cannot simply accept Vullo’s assertion that “pursuing admitted violations of the law … is an obvious alternative explanation” for her actions that would undermine the plausibility of any coercive threat raising First Amendment concerns… Of course, discovery in this case might reveal that the coercion claims are unfounded, or that certain actions should be interpreted differently in light of new evidence. At this stage, however, the Court must assume the complaint’s well-pled facts as true.
Given this backdrop, the fact that the defendant’s letter did not cause the plaintiffs to cancel the event does not preclude finding that the letter was an unlawful attempt to coerce them to do so. See Okwedy v. Molinari (2d Cir. 2003) (“A public-official defendant who threatens to wield coercive state power to suppress protected speech violates a plaintiff’s First Amendment rights.”) … Therefore, when the complaint is viewed in the plaintiffs’ favor and in light of the above authorities, the court concludes that the plaintiffs have plausibly alleged that they “reasonably understood” the letter to be an effort to curb the exercise of their First Amendment rights. Bantam Books, Inc. v. Sullivan (1963).
The court also found that the plaintiffs had adequately claimed that the letter was unconstitutionally retaliatory:
“When a private plaintiff sues a public official, the Second Circuit identifies the elements of a retaliation claim as follows: (1) the plaintiffs possess a First Amendment-protected right; (2) the defendant acted with motivation or substantial causation tied to the exercise of that right; and (3) the actions caused the plaintiffs some injury.” … The defendant does not contest the first element, and the complaint itself describes facts that could lead a reasonable person to infer that the defendant’s decision to send the letter was influenced by the political content of the plaintiffs’ speech …
The defendant argues that the plaintiffs have not adequately pled that the defendant’s actions caused a legally cognizable harm. The court has, in prior RR&O, discussed the issue of harm in the standing context, noting that “various non-speech harms can provide standing” for First Amendment retaliation claims. In particular, it recognized that “reputational harm” can be such an injury. The court observed:
Here, the complaint is filled with allegations that the defendant’s letter falsely linked the plaintiffs to racist, “white nationalist ideals,” to the “Great Replacement Theory,” to a racially motivated shooting in Buffalo, and to other forms of “racially motivated violence.” The plaintiffs specify damages flowing from the letter: injury to reputations; damage to Doyle’s ties within his community, especially with communities of color; and an increased threat of violence against the plaintiffs….
Thus, reading the allegations in the plaintiffs’ favor, the court concludes that they have sufficiently alleged injury for purposes of their retaliation claim….
The magistrate also concluded that the law was sufficiently settled to warrant denying qualified immunity to the defendants. An excerpt:
[I]t has long been clearly established that “implied threats to use coercive state power to stifle protected speech” violate the First Amendment. Hammerhead Enters., Inc. v. Brezenoff (2d Cir. 1983).
In 2003, the Court of Appeals reversed the dismissal of a complaint brought against Staten Island’s Borough President, who had sent a letter to a billboard company regarding signs that promoted a belief—per biblical instruction—that homosexuality is a sin. Okwedy v. Molinari (2d Cir. 2003). The letter noted that the defendant and many community members found the signs offensive, and it pointed out that the company “derives substantial economic benefits” from the billboards on Staten Island and asked the company to contact the defendant’s attorney to discuss the matter. The company removed the signs the same day.
The Court of Appeals held that the plaintiffs had adequately pled a First Amendment claim; that a jury could determine that the defendant’s letter contained “an implicit threat of retaliation”; and that a public-official defendant who uses coercive state power to silence protected speech violates a plaintiff’s First Amendment rights. …
And the court ruled that the plaintiffs had adequately alleged defamation, despite the defendant’s claim of absolute privilege:
“… [A]n executive official has absolute privilege to publish false and defamatory material about another in the course of performing official duties if the matter relates to the executive proceeding in which the official is acting.” … When determining whether absolute privilege applies, two factors are considered: (1) the speaker’s official status or position, and (2) the topic and forum of the statement in light of the speaker’s public duties. Under the second prong, it is not enough that the subject matter merely “relate to” the speaker’s duties; the speech must occur “during an essential part of the public duties being performed.”
Under this framework, the defendant is not entitled to dismissal of the plaintiffs’ defamation claims based on absolute immunity. The general duties of the New York Attorney General are articulated in New York Executive Law § 63, including: prosecuting and defending actions in which the state is a party; investigating indictable offenses upon the governor’s or other state officials’ request; prosecuting civil actions for discrimination at the request of the labor commissioner or the state division of human rights; pursuing criminal offenses; and seeking court orders to stop fraudulent or illegal acts.
In her current filings, the defendant cites N.Y. Exec. Law § 79-n(3), which authorizes the attorney general to apply in the state’s name to a court to halt unlawful bias-based violence or intimidation, as well as a penalty provision of an equal rights law that requires notice of any action under that section to be served on the attorney general.
However, the letter to the plaintiffs was not written to fulfill any of these duties because the defendant had initiated no investigation, prosecution, or other governmental action against the plaintiffs. In fact, the defendant does not argue that the plaintiffs engaged in any acts that would fall within the scope of her enforcement authority… Without a factual basis for a government official to believe that a citizen’s conduct warrants office scrutiny, the absolute privilege doctrine does not apply….
Tricia Sophia Lindsay represents the plaintiff.
