Guy Who Boasted Of Hanging Out With The ‘First Guy To Storm The Capital’ Loses Libel Suit Against Person Who Pointed This Out
The truth remains the best defense against bogus defamation claims. And strong anti-SLAPP laws ensure the person being wrongfully accused of defamation gets to walk away with some of the anti-speech bully’s money.
That’s what happened here in this case highlighted by Eric Goldman. In an extremely ill-advised move, plaintiff Chad Burmeister created a Facebook post in which he labeled himself as “First guy to storm the capital today” while attending a Washington, D.C. “Stop the Steal” rally on January 6, 2021. This isn’t something someone imagined happened. It did happen and its part of the court record. This is taken from federal court decision [PDF]:
So, there’s the post by Burmeister, declaring himself to be on the frontline of the upcoming assault on democracy. But when someone pointed this out, Burmeister got litigious. The genesis of this lawsuit is, of all places, the social media platform hardly anyone considers to be a social media platform. From the decision:
This defamation case is about a LinkedIn post in which Defendant Alan Saldich wrote that Plaintiff Chad Burmeister had “participated in the seditious takeover” of the Capitol on January 6, 2021. Plaintiff alleges that on January 7, 2021, Saldich, acting in his capacity as Chief Marketing Officer of Corelight, published the following:
Normally I’d stay away from political commentary on LinkedIn, but today I’d like to highlight the actions of a former colleague, Chad Burmeister . . . from Littleton, CO who participated in the seditious takeover of the capitol on Wednesday. I have severed my connection with him here, and encourage all who are connected with him to do the same. It’s disgraceful. If you want to watch the video, it’s part of this . . . .
Saldich included a link to an article featuring a video segment of Next with Kyle Clark (“Clark Report”) from local news station 9News. The article had an image of Plaintiff and a caption stating “Coloradan who claims to storm the [Capitol] building heads home.” In the video, 9News anchor Kyle Clark states that Plaintiff bragged about being the “First guy to storm the capital [sic] today” in a selfie posted on Facebook, later changed to “Peaceful march to the capital [sic].” A screenshot of the Facebook post appeared on the face of Saldich’s LinkedIn post and in the video segment…
The screenshot is the one seen above. The news report is this one, which rebuts a local politician’s claims about Antifa raiding the Capitol with social media posts from non-Antifa Coloradans like the litigious Burmeister.
Burmeister felt harmed by his own speech. So, he naturally sued someone else.
Plaintiff alleges that the LinkedIn post damaged his reputation and career as a business owner, including causing a colleague to cancel a $250,000 order with Plaintiff’s company. He alleges that hundreds of users read the post and left “almost universally negative” comments, and that he has received anonymous death threats. Based on these allegations, Plaintiff brings state law claims for libel, trade libel, and false light invasion of privacy.
Burmeister alleged none of this had to do with what he posted but rather was exclusively due to someone else referring to something he had voluntarily posted to Facebook. It does not end well for the would-be insurrectionist, who has already lost his defamation suit against News9 for highlighting this post in its report on the January 6th attack.
The court says California’s anti-SLAPP law applies, even though the plaintiff is from Colorado. He chose to sue in a California court, which means local laws are valid. Since Burmeister cannot demonstrate (nor has he even argued otherwise) that Saldich’s statements addressed issues of public interest, the court only needs to examine one of the two prongs inherent to California’s anti-SLAPP law.
Burmeister claimed Saldich’s statement that he “participated” in the attack on the Capitol building is defamatory because he did not actually enter the building. The court points out that this isn’t the standard for defamation. The standard is what Saldich and others could infer from Burmeister’s post, which plainly stated he was hanging out with someone he claimed was the “first guy to storm” the Capitol.
The truth, by Plaintiff’s own admission, is that he attended the Stop the Steal Rally and publicly posted a photograph on Facebook with someone who claimed to be the “[f]irst guy to storm the capital [sic] today.” In the days leading up to January 6, he also publicly posted several references to a coming “rebellion” and “storm.” In context, the statement that he “participated” is a reasonable interpretation, whether or not Saldich’s post was technically accurate semantically. Contrary to Plaintiff’s assertion, Saldich did not accuse him of entering the Capitol Building or of being investigated for crimes. In fact, the Clark Report itself, which prompted Saldich’s post, includes Plaintiff’s statements that he did not enter the Capitol and did not break any laws.
At bottom, Plaintiff’s case is based on what amounts to an alleged misinterpretation of his own Facebook post: that it was not him who stormed the Capitol. That Plaintiff’s own social media post did not make this entirely clear, or did not explain what he meant by “storm,” is not grounds for a defamation suit. And even if interpreted correctly, his post could still reasonably be understood to mean, at minimum, that Plaintiff was proud to show the public that he was with the “[f]irst guy to storm the [Capitol].”
In short, the Court finds that the “sting” or “gist” of Saldich’s challenged statement was justifiable as substantially true.
Burmeister loses. And he’s not only out his own money for his own lawyers. He’s going to be paying for Saldich’s defense against this BS lawsuit. California’s anti-SLAPP applies, which means Saldich is fully within his rights as the prevailing party to demand Burmeister cover his legal fees. Burmeister has now lost three times — once to the TV station and twice to a former LinkedIn “buddy” (or whatever LinkedIn’s terminology is) who did nothing more than highlight a post Burmeister created while expressing his desire to distance himself from someone he no longer considered a colleague.