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To commence the statutory time period for appeals as of right

(CPLR 5513[a]), you are advised to serve a copy of this order, with
notice of entry, upon all parties.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
--------------------------------------------------------------------------x
PROJECT VERITAS,

Plaintiff,

-against- DECISION & ORDER

Index No. 63921/2020
THE NEW YORK TIMES COMPANY, MAGGIE ASTOR,
TIFFANY HSU, and JOHN DOES 1-5, Seqs. No. 1 & 6

Defendants.
--------------------------------------------------------------------------x
WOOD, J.

New York State Courts Electronic Filing (ANYSCEF@) document numbers 13-93, 115, 119,

were read in connection with the motion by Defendants, The New York Times Company (“NYT”),

and NYT reporters Maggie Astor and Tiffany Hsu, to dismiss plaintiff Project Veritas’ complaint,

pursuant to CPLR 3211(a)(1) (based upon documentary evidence), CPLR 3211(a)(7) (for failure

to state a cause of action), and CPLR 3211(g) (awarding mandatory attorneys’ fees and costs

pursuant to the “Anti-SLAPP Law”).

Plaintiff Project Veritas, a non-profit journalistic organization (“Veritas”), brought this

action against Defendants for publishing five purportedly false and defamatory articles in

September and October of 2020 (“the Articles”). The Articles reviewed a video report published

on September 27, 2020 by Veritas (“the Video”), on the topic of alleged illegal voting practices,

featuring a Somali-American Minneapolis campaign worker named Liban Mohamed. The Video

also featured an interview with Omar Jamal, a community service officer for the Ramsey County

Sherriff’s Office, and a political consultant in the Minneapolis Somali-American community.

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Jamal stated that there was widespread corruption by Somali-American politicians, who were all

part of an extended Somali-American “clan,” including cash payments to elderly voters in

exchange for their absentee ballots. Veritas claims that it did not selectively edit or doctor any of

the interviews presented in the Video.

The Articles include three written by defendant Astor, the first on September 29, 2020,

titled “Project Veritas Video Was a ‘Coordinated Disinformation Campaign,’ Researchers Say,”

which was published online by NYT (NYSCEF#5). On the same day, an abbreviated version titled

“Researchers Say a Project Veritas Video Accusing Ilhan Omar of Voter Fraud Was a

‘Coordinated Disinformation Campaign,” was published online by NYT (NYSCEF#6). The last

was on September 30, 2020, titled “Project Veritas Releases Misleading Video, Part of What

Experts Call a Coordinated Effort,” was published in print by NYT (NYSCEF#7).

Additionally, defendant Hsu wrote two articles about Veritas. The first, on October 25,

2020, titled “Conservative News Sites Fuel Voter Fraud Misinformation,” was published online

by NYT (NYSCEF#8). On October 26, 2020, a substantially similar version of the first Article,

titled “False Voter Fraud Stories Are Churning on Conservative News Sites,’” was published in

print by NYT (NYSCEF#9).

According to the complaint, NYT, Astor and Hsu were driven by resentment and

journalistic competitiveness after NYT’s “much-hyped story” about President Trump’s tax returns

was upstaged by Veritas’ video report, as well as by “their own political biases against Veritas’

perceived right-leanings,” so they set out to discredit Veritas’ reporting. Veritas asserts five counts

of defamation, alleging that Defendants published false and defamatory statements impugning

Veritas’ journalism with reckless disregard for the falsity of those statements.

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In the instant motion, Defendants argue that Veritas failed to adequately plead, and cannot

demonstrate with clear and convincing evidence that there is a substantial basis in law and fact that

Defendants acted with actual malice; Defendants’ reporting on the Video was substantially true

and corroborated by other media outlets and fact checkers; Veritas failed to allege a false or

defamatory statement of fact; and Veritas’s extensive reputation for publishing selectively edited

videos makes it “libel-proof”.

Now, based upon the foregoing, the motion is decided as follows.

Generally, CPLR 3211(a)(7) provides that Aupon a motion to dismiss [for failure to state a

cause of action], the sole criterion is whether the subject pleading states a cause of action, and if,

from the four corners of the complaint, factual allegations are discerned which, taken together,

manifest any cause of action cognizable at law, then the motion will fail. The court must afford

the pleading a liberal construction, accept the facts alleged in the pleading as true, accord the

plaintiff the benefit of every possible inference, and determine only whether the facts as alleged

fit within any cognizable legal theory@ (Esposito v Noto, 90 AD3d 825 [2d Dept 2011]; (Sokol v

Leader, 74 AD3d 1180 [2d Dept 2010]).

Here, Veritas’ complaint adequately pleaded the five causes of action sounding in

defamation. Defamation can sound in libel or slander. Libel involves publication, something in

writing or pictures, and slander involves statements, something spoken (Klein v McGauley, 29

AD2d 418, 421 [2d Dept 1968]). “The elements of a cause of action for defamation are (a) a false

statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace,

(b) published without privilege or authorization to a third party, (c) amounting to fault as judged

by, at a minimum, a negligence standard, and (d) either causing special harm or

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constituting defamation per se” (Udell v NYP Holdings, Inc., 169 AD3d 954, 955 [2d Dept 2019]).

In the context of deciding the issue of defamation on a motion to dismiss, the Second Department

has held that:

Truth is an absolute defense to a defamation action, and the test to determine

whether a statement is substantially true “is whether [the statement] as
published would have a different effect on the mind of the reader from that
which the pleaded truth would have produced” (As only statements alleging
facts can be the subject of a defamation action, “[a]n expression of pure
opinion is not actionable,...no matter how vituperative or unreasonable it may
be”. The question is not whether there is an isolated assertion of fact; rather,
it is necessary to consider the writing as a whole, including its tone and
apparent purpose, as well as the overall context of the publication, to
determine whether the reasonable reader would have believed that the
challenged statements were conveying facts about the plaintiff Thus, “[i]n
determining whether a complaint states a cause of action to recover damages
for defamation, the dispositive inquiry is whether a reasonable listener or
reader could have concluded that the statements were conveying facts about
the plaintiff” (Udell, 169 AD3d at 956 (internal citations omitted).

Defendants claim that a reasonable reader would understand that the primary gist of the

Articles was that the Video was deceptive because it failed, as the promotional materials for the

Video and the Video itself claimed, to show that Rep. Omar’s campaign was linked to the alleged

ballot harvesting scheme. The link between Rep. Omar’s campaign and the ballot fraud

purportedly depicted in the Video is what the Articles identify as relying on “unidentified sources”

and “with no verifiable evidence” and which led to the description of the Video as “deceptive”—

not all aspects of the Video. The gist of those statements is that the allegations about Rep. Omar’s

campaign’s connection to the ballot fraud are insufficiently supported—which is what numerous

“independent reputable news sources and fact checkers” concluded. The defendants also appear to

argue that “Tweets” or other marketing by Veritas and third parties to draw viewers to the Video

by Veritas somehow made the contents of the Video itself deceptive.

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In response, Veritas contends that NYT’s own ethical policies—which NYT publishes on

its website—prohibit news reporters from injecting their subjective opinions into news stories

published by NYT, and thus a reasonable reader would expect a news reporter’s statements to be

assertions of fact and not opinion. However, Defendants rely on a recent federal case where the

court rejected the argument that inclusion of an article “in the ‘News’ section rather than in the

‘Opinion’ section of NYT is dispositive of whether the statements contained in the article should

be considered fact or opinion (Brimelow v New York Times Co., No. 20 CIV. 222 (KPF), 2020

WL 7405261, at 5 [S.D.N.Y. Dec. 16, 2020]).

Whether a statement constitutes fact or opinion is a question of law for the court to decide,

considering the following three factors:

(i) whether the statement in issue has a precise, readily understood meaning; (ii)
whether the statement is capable of being proven true or false; and (iii) whether
either the full context of the communication in which the statement appears or the
broader social context and surrounding circumstances are such as to signal readers
that what is being read is likely to be opinion, not fact. (see Mann v Abel, 10 NY3d
271, 276 [2008])

This court’s review of the Articles involves considering the full text of the Article in which

the purportedly defamatory statements were made. Actionable assertions of fact are tightly

intertwined with what defendants now characterize as opinion. In part, Defendants argue that their

statements describing Veritas’ Video as “deceptive,” “false,” and “without evidence” were mere

opinion incapable of being judged true or false. However, if a writer interjects an opinion in a news

article (and will seek to claim legal protections as opinion) it stands to reason that the writer should

have an obligation to alert the reader, including a court that may need to determine whether it is

fact or opinion, that it is opinion. The Articles that are the subject of this action called the Video

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“deceptive”, but the dictionary definitions of “disinformation” and “deceptive” provided by

defendants’ counsel (NYSCEF doc 14 at footnote 29), certainly apply to Astor’s and Hsu’s failure

to note that they injected their opinions in news articles, as they now claim. Likewise, Defendants

now appear to assert that the promotion of the video was where the deception was (Astor affidavit

NYSCEF doc 85, at paragraphs 8-9; Hsu affidavit NYSCEF doc 86 at paragraphs 7-8;

Memorandum of Law NYSCEF doc 14, at pages 7-8, 11-12, 23, 28). But there is a difference

between viewing a disappointing “fight of the century” and reporting that it was not worth the Pay-

per-View fee or did not live up to the hype, and reporting to the public that Pay-per-View

knowingly marketed a fight that was fixed. Plaintiff is entitled to try to establish whether NYT’s

writers were purposely and/or recklessly inaccurate, or whether they were inaccurate, sloppy, or

something less.

For instance, in defendant Astor’s article dated September 29, 2020 (NYSCEF#5), she

spends the majority of the article merely describing the Video, and speaks to the conclusions of

researchers at Stanford University and the University of Washington, and others. There, Astor

obviously reports on the findings of these groups, and throughout the article they are properly

cited. However, the source of the following statement is unclear, or if it is fact or opinion that:

“Mr. O’Keefe and Project Veritas have a long history of releasing manipulated or selectively edited footage

purporting to show illegal conduct by Democrats and liberal groups” (NYSCEF #5).

In the second Astor article, also dated September 29, 2020, there are citations to

researchers, but this one statement is unclear whether its source is Astor, or if it is information told

to her by the researchers: “Project Veritas had hyped the video on social media for several days before

publishing it. In posts amplified by other prominent conservative accounts, Mr. O'Keefe teased what he

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said was evidence of voter fraud, and urged people to sign up at "ballotharvesting.com" to receive the

supposed evidence when it came out (None of the material in the video actually proved voter fraud)”

(NYSCEF#6).

The third Astor article on September 30, 2020, is repetition of the other two articles.

(NYSCEF#7).

Next, the subject articles written by Hsu on October 25, 2020 and October 26, 2020, contain

questionable language, where fact and opinion converge:

In a similar cycle, the Fox News host Sean Hannity and conservative
publications magnified the reach of a deceptive video released last month by
Project Veritas, a group run by the conservative activist James O’Keefe.
The video claimed without named sources or verifiable evidence that the
campaign for Representative Ilhan Omar, a Minnesota Democrat, was
collecting ballots illegally (NYSCEF#8 and #9).

Stating that the video is “deceptive” and stating “without verifiable evidence” in a factual

way in a news article certainly presents the statement as fact, not opinion. Further, the Astor and

Hsu Articles could be viewed as exposing Veritas to ridicule and harm to its reputation as a media

source because the reader may read these news Articles, expecting facts, not opinion, and conclude

that Veritas is a partisan zealot group, deceptively editing video, and presenting it as news.

Upon review of the total context and tone of the stories, which clearly disparage Veritas

and the Video, the court concludes that a reasonable reader could very well believe that the

challenged statements were conveying facts about Veritas. The Articles certainly could be viewed

as being purposely designed to appear that Defendants are imparting facts and evidence

that Veritas’ videos were deceptive and Veritas is merely a right-wing political group.

Alternatively, Defendants argue that even if the term “deceptive” could be given objective

meaning as a factual statement, Defendants demonstrated that the Video is deceptive, and the

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challenged statement is substantially true, as so many news outlets and fact-checkers

“independently determined.” The truth is an absolute defense. Attached to Defendants’ moving

papers are over 52 sources describing Veritas’ poor reputation for publishing deceptively edited

and misleading videos. According to Defendants, those sources are not just “some criticism from

mainstream and/or left-wing media, but rather, they come from a variety of reputable sources,

including Fox News, the Cato Institute, The Los Angeles Times, Newsweek, The Washington

Post, and The Blaze. Far from being “some criticism,” these sources resoundingly describe Project

Veritas as “partisan zealots,” with “a history of distorting facts or context,” “running cons,”

“misleadingly editing video,” and being “known for its deceptively-edited videos” (See, e.g.,

Kurtzberg Aff. Exs. 18, 28, 33, 47, 49 NYSCEF#15).

While this is a lengthy media list, polling does not decide truth nor speak to evidence, and

Defendants have not met their burden to prove that the reporting by Veritas in the Video is

deceptive. Defendants’ papers do not conclusively establish that the subject causes of action do

not exist, and the Court’s review of the complaint finds that Veritas adequately pleaded the five

causes of action set forth in the complaint. “Whether a plaintiff can ultimately establish its

allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman,

Sachs & Co., 5 NY3d 11, 19 [2005]).

Likewise, CPLR 3211(a)(1), also cited by Defendants, permits the use of “documentary

evidence” in support of a motion to dismiss defamation claims “where the documentary evidence

utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”

(Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002] [internal citation omitted]). Here, the

court finds that the documentary evidence submitted by Defendants fails to refute plaintiff’s factual

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allegations. Notably, Veritas documented in its complaint metadata and screen shots that

demonstrate the unlikelihood that Ms. Astor read and digested the EIP report/blog post, reviewed

news reports on Minnesota ballot issues, viewed the Video online, obtained comment from Alex

Stamos, wrote her own Article, submitted it to her editors, and had it posted online, all within 63

minutes (Complaint, at paragraphs 83-92, Astor Aff.).

Next, Defendants argue that Veritas is “libel proof”. This is a question of law for the Court

to decide (Stern v Cosby, 645 F.Supp.2d 258, 270 [S.D.N.Y. 2009]). The libel-proof plaintiff

doctrine bars relief in a defamation action, as a matter of law, to a plaintiff whose “reputation with

respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly

false statements on that subject” (Guccione v Hustler Mag., Inc., 800 F2d 298, 303 [2d Cir

1986] cert. denied, 479 U.S. 1091 [1987]). Defendants failed to demonstrate that Veritas is a

“classic libel-proof plaintiff”, whose reputation is so bad that it simply cannot be defamed. That

other media sources have criticized Veritas, or that Veritas may have suffered blows to its

reputation, without more, fails to meet the standard.

Accordingly, Defendants’ motion pursuant to 3211(a)(1) and (7), is denied.

Notwithstanding the foregoing, the analysis does not stop there. Defendants ask the court

to apply the recently amended anti-SLAPP law, comprised of various provisions of Civil Rights

Law §§ 70-a and 76-a, and CPLR 3211(g). The Strategic Lawsuit Against Public Participation

(“SLAPP”), laws were enacted originally to broaden the protections of citizens facing

litigation arising from their public petition and participation (Yeshiva Chofetz Chaim Radin, Inc.

v Vill. of New Hempstead by its Bd. of Trustees of Vill. of New Hempstead, 98 F. Supp. 2d 347,

359 [S.D.N.Y. 2000]). In fact, this version of the law existed on November 2, 2020 (the

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commencement date of this action) (Civ.Rights § 76-a). The purpose of the enactment of the

Anti-SLAPP law was to stop meritless, nuisance litigation, by well-funded developers against

average citizens who participated in public discourse against the developers or their projects (see

600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 137 [1993]).

Eight days after the commencement of this action, on November 10, 2020, the Anti-SLAPP

law was amended, and under CRL §76-a (eff. 1992), the definition of an “action involving public

petition and participation” was expanded to include:

(1) any communication [as pertinent here, any writing] in a place open to the public
or a public forum in connection with an issue of public interest; or
(2) any other lawful conduct in furtherance of the exercise of the constitutional right
of free speech in connection with an issue of public interest, or in furtherance of the
exercise of the constitutional right of petition. (CRL § 76-a).

The next provision of the Anti-SLAPP Law falls under CPLR 3211(g), which provides

that:

A motion to dismiss based on [§3211(a)(7)], in which the moving party has

demonstrated that the action, involves public petition and participation as defined in
Civil Rights Law, 76-a shall be granted, “unless the party responding to the motion
demonstrates that the cause of action has a substantial basis in law or is supported
by a substantial argument for an extension, modification or reversal of existing law.
The court shall grant preference in the hearing of such motion” (CPLR 3211(g)).

Civil Rights Law §70-a goes a step further, by creating an affirmative cause of action to

recover damages from plaintiff, including attorneys' fees, and other damages from plaintiff in

specified circumstances, if it can be shown that the applicant brought the action “without a

substantial basis in fact and law” (CRL §70-a).

These recent amendments by the Legislature have turned the original purpose of the Anti-

SLAPP law upside down. Here, one of the largest newspapers in the world since Abraham

Lincoln was engaged in the private practice of law, is claiming protections from an upstart

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competitor armed with a cell phone and a web site. Not only does the amended Anti-SLAPP law

grant protection to a Goliath against a David, but 16 years after the SLAPP law was enacted, a

newspaper had never qualified for SLAPP protection for its written articles (see Cholowsky v

Civiletti, 116 Misc3d 1138 [Sup. Ct, Suffolk Cty 2007]; aff’d 69 AD3d 110 [2d Dept 2009]).

Despite this dizzying turnabout created by the Legislature, the court agrees that this action meets

the amended Anti-SLAPP standard, as it arises from NYT’s reporting on an issue of public interest:

allegations of systemic voter fraud and potential disinformation about such voter fraud.

Accordingly, since under CPLR 3211(g) defendants have moved to dismiss the action

under CPLR 3211(a)(7), and demonstrated that this action entitles them to additional protections,

CPLR 3211(g) shifts the standard burden for a motion to dismiss from Defendants to Veritas to

“demonstrate that the cause of action has a substantial basis in fact and law.” In opposition,

Veritas argues that Civil Rights Law §76-a should not be given retroactive effect here, in that the

text of the November 10, 2020 Act amending CRL §§ 70-a and 76-a, along with CPLR 3211(g),

nowhere states that the amendments shall apply retroactively, but states only that the act “shall

take effect immediately.”

Retroactive operation is not favored by courts and “statutes will not be given such

construction unless the language expressly or by necessary implication requires it” (Majewski v

Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 584 [1998]). However, “remedial legislation

should be given retroactive effect in order to effectuate its beneficial purpose” (In re Gleason

(Michael Vee, Ltd.), 96 NY2d 117, 122 [2001]). Other factors pertinent here to consider whether

the Amendment conveyed a sense of urgency; and whether the enactment itself reaffirms

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a legislative judgment about what the law in question should be (Nelson v HSBC Bank USA, 87

AD3d 995, 998 [2d Dept 2011]).

To date, three federal courts have ruled that the amended Anti-SLAPP Law should be given

retroactive effect. In one case where NYT was a defendant, the Southern District ruled that “it is

clear that §76-a is a remedial statute that should be given retroactive effect. The Legislature

conveyed a sense of urgency by directing that the amendment was to take effect immediately”

(Palin v New York Times Co., No. 17-CV-4853 (JSR), 2020 WL 7711593 [S.D.N.Y. Dec. 29,

2020]). Likewise, the Eastern District found the anti-SLAPP amendments are

remedial, retroactive legislation:

The memorandum accompanying the bill's introduction states that “as drafted, and
as narrowly interpreted by the courts, the application of Section 76-a has failed to
accomplish [its] objective.” S52A Sponsor Mem. (July 22, 2020),
https://www.nysenate.gov/legislation/bills/2019/s52. The memorandum expresses
the specific intent that the proposed amendments will “better advance the purposes
that the Legislature originally identified in enacting New York's anti-SLAPP law”:
to protect the free exercise of speech, particularly in public fora on matters of public
interest. Id. The bill became effective “immediately.” Id. Under New York law,
these clear legislative expressions of remedial purpose and urgency give the
amendments retroactive effect. See Palin, 2020 WL 7711593, at 5
(quoting Gleason, 96 N.Y.2d at 123 (These factors together persuade [the Court]
that the remedial purpose of the amendment should be effectuated
through retroactive application) (Steven Douglas Coleman, Plaintiff, v Maria Kim
Grand, Defendant., No. 18CV5663ENVRLM, 2021 WL 768167, at 8 (E.D.N.Y.
Feb. 26, 2021).

While the federal decisions are not binding on this court, here Veritas has not sufficiently

raised any harsh impact that would preclude the applicability of the Anti-SLAPP statute, and thus,

the court will apply the Anti-SLAPP statute retroactively.

Eventually, to prevail at trial, Veritas will have a high burden, to show actual malice by

clear and convincing evidence. “The burden of proving ‘actual malice’ requires the plaintiff to

demonstrate with clear and convincing evidence that the defendant realized that his statement was

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false or that he subjectively entertained serious doubt as to the truth of his statement “(Prozeralik

v Capital Cities Communications, Inc., 82 NY2d 466, 474 [1993]). Actual malice is a high bar and

mere allegations about improper political or personal biases do not establish actual malice without

additional facts to suggest the speaker acted pursuant to that bias (McDougal v Fox News

Network, LLC, No. 1:19-CV-11161 (MKV), 2020 WL 5731954 [S.D.N.Y. Sept. 24, 2020]).

Veritas argues that not only does the complaint allege that Defendants had knowledge of

the falsity of their defamatory statements at the time of publication, but it pleads detailed facts

showing the presence of literally every “hallmark” of actual malice recognized by the law—

including setting out with a preconceived narrative, being motivated by ill will and bias, failing to

contact obvious sources of information, relying on biased and non-credible sources, violating

journalistic standards, and refusing to retract. Veritas alleges that it has far exceeded that standard

by pleading overwhelming circumstantial evidence of actual malice, including that:

• Astor and Hsu knew their claims about the video report were false because they had themselves
reviewed the video report (Compl. ¶¶ 97-98, Veritas alleges that Defendants knew that Omar Jamal—the
man they now acknowledge was the “primary named source” for the video report (Mem. at 25)—has long
been considered a credible, on-the-record source by The Times itself. (Compl. ¶¶ 113-122)
• Defendants were motivated by bias and ill will because they believed that the video report was
upstaging their story about President Trump’s tax returns and because Defendants all disagree politically
with what they perceive to be Veritas’ rightward leanings (Id. ¶¶ 72-76, 156).
• Hsu’s later October 2020 stories were motivated by vindictiveness and a desire to harm Veritas
for demanding a correction of Astor’s stories (Id. ¶¶ 148-154).
• The Times and its reporters set out with a preconceived storyline that the video report was
manipulated and deceptive, and that they ignored any evidence that contradicted that prejudged narrative
(Id. ¶¶ 75-76, 90, 202, 292).
• Both Astor and Hsu failed to conduct a reasonable investigation and intentionally failed to reach
out to obvious sources they knew would contradict the claims they planned to publish—including Veritas
and the named sources in the video report (Id. ¶¶ 123-125, 157).
• By intentionally declining to seek comment from Veritas prepublication, both Astor and Hsu
blatantly violated NYT’s own published policies and ethical guidelines requiring reporters to seek comment
from story subjects (Id. ¶¶ 125, 157).
• While Defendants attempt to argue that Astor did not act with actual malice because she relied on
a blog post by a group called the “Election Integrity Partnership,” Veritas has alleged—and demonstrated
through website metadata—that both the blog post and Astor’s story were a joint and coordinated effort

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between EIP and The Times to smear Veritas (Id. ¶¶ 77-92).

• Veritas further alleges that Astor knew the EIP blog post authors were heavily biased, as one of
the principal authors had previously been the subject of a Veritas story exposing wrongdoing on his part
while employed by Facebook (Id. ¶ 91).

Defendants claim that Veritas fails to consider the six stories that preceded the Astor

Articles and attacked the Video as deceptive and as providing insufficient support for its claims

“connecting” Rep. Omar’s campaign to the alleged pervasive ballot fraud scheme. It also fails to

account for the fact that only two of the eight articles published after the Astor Articles make any

reference to the them. Defendants argue that 14 sources concurred that the Video was deceptive

and made unsupported claims purporting to link Congresswoman Omar’s campaign to an illegal

ballot fraud scheme, and numerous sources recounted Veritas’ widespread reputation for deceptive

editing, giving Defendants every reason to believe that the Video was deceptive. The court can

take judicial notice of those sources — not for the truth of the matter asserted in their statements,

but to determine that NYT did not act with “reckless disregard of the truth.”

Defendants also point out that after the Video was released, they submitted reports of

allegedly independent fact-checkers, news organizations, and reputable academics (from

Defendants’ point of view) as being, among other things, “misleading,” “unfounded,” part of a

“disinformation campaign,” and “false”; and that within days of the Video being released, Omar

Jamal, a key source for the Video, went on Somali American TV and reportedly “backtracked” on

the cash-for-ballots allegations. Another man featured in the Video, Liban Osman, told

investigators at Fox News that he was offered a $10,000 bribe by Omar Jamal — to be paid by

Project Veritas — to say (falsely) that he was collecting ballots for Rep. Omar.

Turning to the submissions of the parties, the court first must disagree with Defendants that

the clear and convincing standard applies to this motion. CPLR 3211(g) does not impose a “clear

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and convincing” standard. The party opposing the motion must demonstrate that the cause of

action “has a substantial basis in law” (CPLR 3211[g]); International Shoppes, Inc. v At the

Airport, LLC, 131 AD3d 926, 929 (2d Dept 2015). Notably, CPLR 3211(h) contains the same “has

substantial basis in law” language as CPLR 3211(g). In deciding a recent CPLR 3211(h) motion,

the Second Department held that this standard was below the standard for summary judgment, and

that “the plaintiff must adduce allegations and evidence that demonstrate the existence of triable

issues of fact” (Golby v N&P Engrs. & Land Surveyor, PLLC. 185 AD3d 792,794 [2d Dept 2020]).

The court finds that the documentary proof and the facts alleged by Veritas are sufficient to meet

its burden. The facts submitted by Veritas could indicate more than standard, garden variety

media bias and support a plausible inference of actual malice. There is a substantial basis in law

to proceed to permit the plaintiff to conduct discovery and to then attempt to meet its higher

standard of proving liability through clear and convincing evidence of actual malice. Malice

focuses on the defendant's state of mind in relation to the truth or falsity of the published

information. Here there is a substantial basis in law and fact that Defendants acted with actual

malice, that is, with knowledge that the statements in the Articles were false or made with reckless

disregard of whether they were false or not. Veritas alleged actual malice by providing facts

sufficient to demonstrate Defendants’ alleged disregard for the truthfulness of its statements.

Accordingly, at this very early stage of the litigation, Veritas’ submissions were sufficient to

withstand defendants’ motions, and further proceedings are necessary to resolve the issues raised.

In light of the court’s rulings herein, plaintiff Veritas’ motion (Seq. 6) for limited discovery

in relation to the present motion (seq. 1) is deemed academic and moot.

Accordingly, based upon the stated reasons, it is hereby

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 INDEX NO. 63921/2020
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 03/18/2021

ORDERED, that the motion by Defendants for an order pursuant to CPLR 3211(a)(1),

(7), and CPLR 3211(g) dismissing the complaint and an award of attorney's fees on the defendant's

counterclaim, is denied; their application for relief under New York's Anti–SLAPP statute is also

denied; and it is further

ORDERED, that any future submissions by counsel shall adhere to the Uniform Court Rule

202.8-b; and it is further

ORDERED, that the parties shall appear at the Compliance Part, at a date, time, place, and

manner as so designated by that Part.

This constitutes the Decision and Order of the Court.

Charles D. Wood
Dated: March 18, 2021 I am the author of this
White Plains, New York document
2021.03.18 11:28:
41-04'00'
10.1.0
HON. CHARLES D. WOOD
Justice of the Supreme Court

To: All Parties by NYSCEF

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