Gilmore v. Jones (P)

Plaintiff Brennan Gilmore was among hundreds of individuals who gathered in Charlottesville, Virginia on August 12, 2017 to protest various white supremacist and neo-Nazi groups participating in the “Unite the Right” rally. In footage he recorded that day, he captured James Fields driving into a crowd, killing one person and injuring approximately 36 others. Gilmore alleges that, in the days following, Alex Jones and other defendants published articles and videos falsely portraying him as a “deep state” operative who conspired to orchestrate violence in Charlottesville for political purposes. Gilmore’s defamation claims will proceed against all defendants but one. His claims for intentional infliction of emotional distress will be dismissed.

This court’s diversity jurisdiction is not extinguished by one defendant’s alleged domicile in Virginia; evidence suggests instead that he is domiciled in Texas. He’s registered to vote in Texas, which verifies active voters by mailing out non-forwardable renewal certificates. He rents an apartment in Virginia, but it’s a temporary shared housing community for renters who want to avoid a long-term commitment. This situation suggests this defendant hasn’t made a permanent home in Virginia.

In addition, the court can exercise personal jurisdiction over almost all of the defendants based on written or visual media they created that targeted a Virginia audience; i.e. discussing Gilmore, his connection to a Virginia event (the United the Right rally), and his former work for former Virginia gubernatorial candidate Tom Perriello.

In the context of his defamation claims, Gilmore qualifies as a limited public figure and must therefore allege that the defendants published their allegedly defamatory articles and videos with actual malice. The facts in his complaint meet this standard.

The defendants insinuated that Gilmore had foreknowledge of a violent attack and filmed it for clandestine political purposes. This type of publication is precisely the sort of factual assertion that would tend to harm the reputation of another as to lower him in the estimation of the community and deter third persons from associating with him. Furthermore, Gilmore adequately alleges defamation per se under Virginia law because, at a minimum, the statements would tend to prejudice Gilmore in his profession (a State Department diplomat).

Gilmore’s allegations sufficiently establish actual malice. The defendants allegedly conceived a storyline about the events in Charlottesville and then consciously set out to make false statements about Gilmore conform to that storyline. Gilmore also alleges that the defendants departed from “even the most basic journalistic standards” by failing to reach out to him to confirm the story’s statements. Together, these allegations are sufficient to allege actual malice.

As to intentional infliction of emotional distress, there can be no serious dispute that Gilmore sufficiently alleges that the defendants’ conduct was intentional or reckless. But he has not alleged distress of sufficient severity. Much of the distress Gilmore alleges — such as stress, anxiety, sleeplessness, depression, and seeking counseling — has been deemed insufficiently severe by the Supreme Court of Virginia. Second, Gilmore hasn’t alleged that he is functionally incapable of carrying out any of his work or family responsibilities. Third, a significant portion of the distress Gilmore alleges is speculative in nature; e.g. he “may” need to remove himself altogether from his company’s client-facing work, but doesn’t allege that he has actually been forced to do so.

Motion to dismiss granted in part and denied in part.

Gilmore v. Jones (P), No. 3:18cv17, Mar. 29, 2019. WDVA at Charlottesville (Moon).

Categories: Opinions, U.S. District Court - Western District of Virginia

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