From Herman v. Muhammad, decided yesterday by the N.J. appellate court (Chief Judge Thomas Sumner and Judges Ronald Susswein and Stanley Bergman):
The following facts are alleged in the amended complaint. Herman is a second-grade teacher at an elementary school (school) in the South Orange-Maplewood school district. On October 6, 2021, Herman believed that one of her students, who normally wears a form-fitting hijab as part of her Muslim faith, was wearing a "hood" covering her eyes. Attempting to reengage the student in schoolwork, Herman asked the student to remove the hood from her eyesight. Unbeknownst that the student was wearing a loose-fitting hijab, Herman "lightly brush[ed] back" the student's hijab and "immediately and gently brushed [it] back to cover … the [s]tudent's hair." Herman claims that "out of respect for the religious practices of Islam and for the [s]tudent's observation of same, [she] apologized to the [s]tudent." Herman maintains the hijab "never left the [s]tudent's head," and class resumed without disruption. After the student told her mother about the incident, the mother spoke to the school's principal and assistant principal.
The next day at 4:00 p.m., Muhammad, a practicing Muslim who wore a hijab while winning a Sabre fencing medal for the United States in the Olympics, posted the following sentiments on Instagram:
I wrote this book [The Proudest Blue: A Story of Hijab and Family] with the intention that moments like this would never happen again. When will it stop? Yesterday, Tamar Herman, a teacher at Seth Boyden Elementary School in Maplewood, NJ forcibly removed the hijab of a second[-]grade student. The young student resisted, by trying to hold onto her hijab, but the teacher pulled the hijab off, exposing her hair to the class. Herman told the student that her hair was beautiful and she did not have to wear [a] hijab to school anymore. Imagine being a child and stripped of your clothing in front of your classmates. Imagine the humiliation and trauma this experience has caused her.
This is abuse. Schools should be a haven for all of our kids to feel safe, welcome and protected—no matter their faith. We cannot move toward a post-racial America until we weed out the racism and bigotry that still exist in all layers of our society. By protecting Muslim girls who wear hijab, we are protecting the rights of all of us to have a choice in the way we dress.
Writing books and posting on social is not enough. We must stand together and vehemently denounce discrimination in all of its forms. CALL Seth Boyden Elementary (973) 378-5209 and EMAIL the principal sglander@somsd.k12.Nj.us and the superintendent Rtaylor@somsd.k12.Nj.us
About thirty minutes later, Muhammad edited and reshared the post on Instagram and Facebook. The edited post omitted the first two sentences ("I wrote this book with the intention that moments like this would never happen again. When will it stop?") and included a photo of the school. Muhammad's posts garnered considerable reactions in mass media and social media, including by the Counsel on American Islamic Relations (CAIR) Foundation, CAIR-NJ, and CAIR-NJ's executive director Selaedin Maksut (collectively CAIR defendants), calling for Herman's immediate termination….
As a result of Muhammad's "defamatory social media posts … the Essex County Prosecutor's Office opened a [three-month] criminal investigation" of the incident, and though "vindicated by the outcome," Herman alleges she has endured "acute emotional distress," destruction of her "hard-earned reputation," and physical threats. Herman also alleged she was even "condemn[ed]" by the "rabbi from her childhood congregation." …
Herman sued Muhammad and CAIR for defamation, and the court allowed the case to go forward against Muhammad but not CAIR. The court concluded that Herman had adequately alleged that Muhammad's statements about her were false (though of course the question whether they were in fact false can't be decided until later):
We conclude plaintiff alleged a prima facie case of defamation and false-light invasion of privacy against Muhammad based on certain statements Muhammad posted on social media. This is not to say Herman's allegations can be sustained at later stages of this litigation. But, for now, considering the law governing defamation claims and affording Herman all favorable factual inferences, we agree with the motion court her amended complaint should not have been dismissed ….
Upon our de novo review of the motion, we first examine the following allegations in the amended complaint. Muhammad posted that Herman: "[F]orcibly removed the hijab of a second[-]grade student. The young student resisted, by trying to hold onto her hijab, but the teacher pulled the hijab off, exposing her hair to the class." Muhammad contends "forcibly" constitutes "protected opinion" and that the trial court and Herman conflated with term "forcefully." Muhammad maintains her assertion that Herman's removal of the student's hijab was "done with force … [and] against [the student's] will," constitutes her opinion. Because Herman denies its veracity, Muhammad's statement cannot be substantial truth or opinion. Moreover, the imagery of forcibly removing the hijab against the student's will portrays Herman in a bad light by suggesting she aggressively used force to remove the student's hijab despite knowing its religious significance and the student's objection.
Muhammad posted that Herman told the student "her hair was beautiful and she did not have to wear a hijab to school anymore." There is no substantial truth to this statement based on Herman's denial that she said this. Considering the student was practicing her Islamic faith by wearing the hijab, the statement was defamatory because it accused Herman, a public school teacher, of not respecting the student's religious beliefs. Such assertion by Herman, if true, was not a minor inaccuracy.
Muhammad posted that Herman "stripped [the student's] clothing in front of [her] classmates." Again, because Herman denies removing the hijab, there is no substantial truth supporting Muhammad's contention that this post is protected opinion.
And the court concluded that Herman had adequately alleged that Muhammad knew the statements were false or likely false (the "actual malice" standard that New Jersey law—unlike the law of most other states—requires as to all statements on matters of public concern, whether or not the plaintiff is a public figure):
We agree with the trial court's determination that Herman's amended complaint sufficiently alleges Muhammad's posts were done with actual malice…. Herman asserted that based on their prior relationship, she exchanged several text messages with Muhammad the next evening and two days after the postings, explaining the information in her posts was false. However, according to Herman, "Muhammad made no effort to verify the truth of these accusations because she did not care whether the allegations were true or false, because making them would generate publicity for her." Herman stresses that Muhammad "admitted that she was relying on the recall of a [seven]-year-old," who was coached by her mother in a now-deleted video. Herman also alleges that "almost one month after the initial posts—Muhammad referred to the teacher-student interaction as the 'alleged incident,'" thereby, indicating Muhammad knew she "committed libel against Herman and was (unsuccessfully) attempting to buffer herself against" her prior statements.
Herman's allegations of actual malice were not merely conclusory. Nor did she perfunctorily parrot the legal test. Rather, she detailed facts questioning whether Muhammad knew or had serious doubts about the veracity of the student's reports of the incident as relayed to the student's mother and Muhammad's mother.
And while Muhammad's communications with Herman occurred after the posts, the amended complaint's allegation that Muhammad did not modify her accusations against Herman can be viewed as evidence of her subjective intent in her posts. Furthermore, the amended complaint's allegation that Muhammad later referred to the incident as "alleged" can be viewed as expressing serious doubts about her posts.
We, however, do not agree with the trial court and Herman that Muhammad had a duty to investigate the incident by speaking to the student, her mother, or Herman prior to making her posts. In addition, we disagree with the court and Herman that Muhammad acted with malice because the incident is "wholly unbelievable" and she relied on a "third-hand account of a dubious witness," a seven-year-old student. There is nothing in the amended complaint suggesting the student's allegations were dubious merely because of her youth. We further find that allegations of antisemitism shed no light at this stage of the litigation in resolving a motion to dismiss.
In conclusion, our ruling should not be construed as an expression of our views regarding the merits of Herman's claims….
But the panel concluded that Herman hadn't alleged sufficient facts that would show CAIR knew the statements were false or likely false:
The mere fact that defendants advocate for Muslims' civil rights does not establish they knew Muhammad's social media posts were untrue yet still published defamatory statements or put Herman's privacy in a false light. Herman's amended complaint asserts that defendants' comments about the incident were based solely on Muhammad's social media posts…. [But] defendants had no duty to investigate Muhammad's posts. Thus, Herman cannot sustain a charge of actual malice by contending defendants should have communicated with Muhammad, Herman, or the student's family before circulating and commenting on Muhammad's posts. Defendants never claimed they had first-hand knowledge of the incident. Accordingly, … we conclude Herman failed to adequately plead facts showing defendants' statements were made with actual malice.
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