An attorney lost his city job after the Southern Poverty Law Center called him a neo-Nazi in an article he claims was based on information that was acquired illegally.
RICHMOND, Va. (CN) — A former Baltimore city attorney argued before a federal appeals court Tuesday that the publication of his membership history with a neo-Nazi group amounted to defamation so severe it should not be protected by the First Amendment.
“This case is extraordinarily important, not just for me, but for the fundamental principles of freedom of speech,” Glen K. Allen told a three-judge panel in a virtual Fourth Circuit hearing.
Allen’s dispute dates back to 2015 when the Southern Poverty Law Center got a tranche of documents from an accountant who worked for white supremacist group National Alliance.
Those documents included names, receipts and other information about the groups’ members, including who paid membership dues and other fees associated with attending the group’s events.
SPLC took that data and published it in their annually updated “hate map,” which documents cases of hate-motivated groups and violence across the country.
Among the names published was Allen, who was then a contractor in the city of Baltimore’s legal department. In August 2016, the SPLC published pictures and receipts of his purchases of holocaust-denying conference tickets and DVDs, alongside the words, “When the City of Baltimore recently hired Glen Keith Allen, a neo-Nazi, nobody knew of his involvement with the white supremacist group, except for us.”
Allen was fired by the Baltimore City Law Department after the article was published. He filed an 81-page federal lawsuit in December 2018 claiming the SPLC defamed him, along with other counts ranging from political interference to unjust enrichment. He sought over $6 million in damages.
But U.S. District Judge Catherine Blake dismissed the complaint in November 2019, finding the civil rights group did not defame Allen when it exposed his ties to National Alliance.
“The August 17, 2016, article and 2016 Hate Map are protected by the First Amendment,” the Bill Clinton appointee wrote. “First, Allen does not allege that the factual statements in them are false. Second, the statements he objects to are non-actionable opinion or hyperbole.”
Allen appealed and spent Tuesday’s hearing arguing the published information, acquired from a National Alliance member who stole the data, was covered by the 2001 U.S. Supreme Court ruling Bartnicki v. Vopper, which found publishers are protected by the First Amendment even if the original information was acquired by a third party illegally.
But Chad R. Bowman, an attorney with the Washington-based Ballard Spahr who argued on behalf of the SPLC, said in order for the information to lose free-speech protection, the publisher would have to be directly involved in its illegal procurement.
“SPLC gathered information from a source that’s a matter of public concern and published it and that’s what news outlets do every day,” he said. “So long as the publisher does not participate in the illegal act then the First Amendment protects the receipt and dissemination of that information.”
While the panel lobbed few questions during the 40-minute hearing, U.S. Circuit Judge G. Steven Agee, a George W. Bush appointee, wondered if Allen had standing to bring one of his claims, a count seeking declaratory judgment that the group violated its nonprofit status.
“I’m not sure what your injury is,” Agee said.
“I have a Damocles sword hanging over my head,” Allen replied. “My injury is instability and uncertainty that I might be attacked again.”
Agee seemed unsure how the judges could remedy the claim, opining that it was out of the court’s purview to interfere with the group’s tax status short of government involvement.
U.S. Circuit Judge Diana Gribbon Motz, a Clinton appointee, offered Bowman a hypothetical scenario: “What if the government took criminal charges against you, does Bartnicki protect you there?”
“There was a significant First Amendment question about the press receiving such information, fortunately there’s some nuance here,” Bowman replied, saying Allen was not only working in Baltimore’s civil rights office but had dreams of leading the branch in the future, which made publication more relevant.
Bowman also noted the SPLC was only given copies of the original documents, further protecting the group from charges related to their publication.
“This was more akin to a leak situation,” he argued, comparing it to the New York Times publishing data collected illegally WikiLeaks. “A criminal statute cannot trump the First Amendment as long as the news organization didn’t participate in the collection of the information.”
Neither Allen nor the SPLC responded to requests for comment following the hearing.
U.S. Circuit Judge Barbara Milano Keenan, a Barack Obama appointee, rounded out Tuesday’s panel. The judges did not signal when they intended to rule.
Allen isn’t the only subject of the SPLC’s “hate map” to put up a fight against the label. Last December, Fort Lauderdale-based Coral Ridge Ministries also argued before the 11th Circuit that its “hate group” label amounted to discriminatory defamation.
“When you present it as a fact, ‘this is a hate group,’ then they have to be held responsible for that incorrect statement,” attorney David C. Gibbs III argued on behalf of the ministry in that hearing which has yet to yield a ruling.
As for the hate map project, SPLC continues to publish its annual reports. The last release, covering 2019 but released in March 2020, found white nationalism is on the rise.
Attributing the numbers at least in part to more forms of digital communications, the SPLC found a 55% increase in white nationalist hate groups, from 100 in 2017 to 155 in 2019.
“A growing sector of white supremacists, who call themselves ‘accelerationists,’ believe mass violence is necessary to bring about the collapse of our pluralistic society,” the report states, almost foreshadowing the Jan. 6 riot at the U.S. Capitol by radical groups that left five dead.