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Guest Article

Lawsuits, The Satanic Temple

June 26, 2023

In Brief: Queer Satanic answers Satanic Temple’s appeal of failed SLAPP suit

Officially: Apellees’ Answering Brief in United Federation of Churches LLC v. David Johnson et al (23-35060) Court of Appeals for the Ninth Circuit

[Brief][Supplemental Excerpts of Record]

Full text below as embed and HTML

TABLE OF CONTENTS

INTRODUCTION

This case arises from a dispute between a religious organization and its former members regarding the religious organization’s ability to live up to its own tenets, beliefs, and professed practices. Appellant United Federation of Churches LLC d/b/a The Satanic Temple (“The Satanic Temple” or “TST”) is a self-proclaimed religious organization. Appellees David Johnson, Leah Fishbaugh, Micky Powell,1 and Nathan Sullivan (the “Expelled Members”) are its former members. On March 12, 2020, The Satanic Temple removed the Expelled Members from their volunteer positions with The Satanic Temple’s local chapter due to internal disagreements. Later in March of 2020, one of the Expelled Members, Appellee David Johnson (“Johnson”), posted critical views about The Satanic Temple’s adherence to its purported religious beliefs, tenets, and practices on a Facebook page used by The Satanic Temple’s local Washington chapter (the “Chapter Facebook Page”). The Satanic Temple had given Johnson administrative control of the Chapter Facebook Page in his role as a volunteer social media manager for The Satanic Temple. When Johnson did not return administrative control of the Chapter Facebook Page to The Satanic Temple, The Satanic Temple requested and received administrative control from Facebook in May of 2020, when Facebook also removed the Expelled Members as authorized administrators of the page. To date, The Satanic Temple retains exclusive control of the Chapter Facebook Page.

Some Expelled Members also posted critical content to a secondary Facebook page referred to as the “Allies Facebook Page” or the “Memes Facebook Page.” Unlike the Chapter Facebook Page, The Satanic Temple did not ask the Expelled Members to return the Memes Facebook Page. Nor did it ask Facebook to remove the Expelled Members as administrators of the Memes Facebook Page.

Not content with having ejected the Expelled Members for their critical views (or merely their presumed proximity to those who held critical views), The Satanic Temple sued, seeking to further punish its former members for their criticisms, alleging through three different complaints a spaghetti splatter of multiple federal and state law claims tossed against the court’s walls, all stemming from the Expelled Members’ Chapter Facebook Page posts in March of 2020. The federal claims included a “hacking” claim under the Computer Fraud and Abuse Act (“CFAA”), a “cyberpiracy” claim under the Anticybersquatting Consumer Protection Act (“ACPA”), and claims for federal trademark dilution. The state law claims included defamation, violation of Washington’s Consumer Protection Act (“CPA”), tortious interference, conversion, and trespass to chattels.2

Through multiple motions to dismiss, the District Court dismissed The Satanic Temple’s state law claims for defamation, violation of the CPA, and the conversion and trespass to chattels claims relating to the Chapter Facebook Page. The District Court also dismissed all of the federal claims. After dismissing the last of the federal claims, the District Court dismissed the remaining state law claims for tortious interference, conversion, and trespass to chattels for lack of subject matter jurisdiction.3

Through its appeal, The Satanic Temple seeks to revive two of the dismissed claims—the federal cyberpiracy/ACPA claim and the state defamation claim. The Satanic Temple provides no viable grounds for reversing the District Court’s appropriate dismissal of these claims. The cyberpiracy claim fails as a matter of law because it only applies to domain names registered by an authorized domain name registrar. It does not apply to unregistered post-domain paths such as that for the Chapter Facebook Page. The cyberpiracy claim also fails as a matter of law because The Satanic Temple did not plead that the Expelled Members had a bad faith intent to profit from their alleged use of the purported domain name (which is, in fact, not a domain name under the ACPA).

The Satanic Temple’s defamation claim fares no better. The First Amendment’s Free Exercise Clause forbids courts from delving into and defining the beliefs and tenets of any religious organization. The First Amendment’s Establishment Clause also prohibits a government (including the courts) from supporting or endorsing a religion. The District Court correctly dismissed the defamation claim because the Free Exercise Clause prohibits it from interpreting and defining The Satanic Temple’s religious beliefs, tenets, and practices, as the District Court would be required to resolve the defamation claim. In its appeal, The Satanic Temple does not dispute that it would be improper for a court to define or interpret its beliefs. Instead, it proposes a solution that would violate the Establishment Clause. Specifically, The Satanic Temple proposes that for its defamation claim, it should be the sole arbiter of the truth or falsity of the Expelled Members’ statements—like a Satanic theocracy punishing blasphemers. The First Amendment forbids allowing The Satanic Temple to step into the District Court’s shoes in this manner and to turn the court into its own enforcement arm in The Satanic Temple’s quest to silence dissenting members. The District Court correctly dismissed the defamation claim.

For these reasons and the reasons set forth below, this Court should uphold the District Court’s dismissal of The Satanic Temple’s cyberpiracy and defamation claims.

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STATEMENT OF JURISDICTION

Prior to the District Court’s dismissal of the CFAA, ACPA, and trademark dilution claims, the District Court had federal question jurisdiction under 28 U.S.C. § 1331 for those three claims and supplemental jurisdiction for the state law claims under 28 U.S.C. § 1367. Following dismissal of the federal claims, the District Court lacked subject matter jurisdiction over the remaining state law claims. The District Court also found to a legal certainty that The Satanic Temple’s remaining claims were for less than the jurisdictional amount to satisfy diversity jurisdiction requirements under 28 U.S.C. § 1332(a). ER 5-9. The Satanic Temple has not appealed that finding.4

This Court has jurisdiction under 28 U.S.C. § 1291, which provides the Court of Appeals with jurisdiction of appeals from all final decisions of the district courts of the United States.

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STATEMENT OF THE ISSUES

(A) Whether the District Court correctly dismissed The Satanic Temple’s ACPA/cyberpiracy claim where the claim does not involve a domain name and The Satanic Temple did not allege that the Expelled Members had a bad faith intent to profit.

(B) Whether the District Court correctly dismissed The Satanic Temple’s defamation claim where the claim would have required the court to make ecclesiastical religious determinations regarding The Satanic Temple’s tenets, beliefs, and practices in violation of the First Amendment.

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STATUTORY AUTHORITIES

Review of the District Court’s dismissal of The Satanic Temple’s
ACPA/cyberpiracy claim requires analysis of 15 U.S.C. § 1125(d) and 15 U.S.C. § 1127, which are attached as Addendum A. The Court’s analysis also requires reviewing legislative history for 15 U.S.C. § 1125(d) and the definition of “domain name” in 15 U.S.C. § 1127, found at 145 Cong. Rec. 14986, 15025 (1999), the relevant portions of which are attached hereto as Addendum B.

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STATEMENT OF THE CASE

Because this appeal arises from decisions on motions to dismiss, the
allegations included in The Satanic Temple’s complaint will be taken as true (though many are vigorously disputed).

[Table of Contents]

I. The Satanic Temple

The Satanic Temple is a self-proclaimed religious organization that advances seven fundamental tenets. ER 131-32 at ¶¶ 7-9; ER 51-52 at ¶¶ 8-10. At the relevant time, The Satanic Temple was organized at local levels in “Chapters,” which were largely autonomous, but were subject to centralized control to ensure faithfulness to organizational principles and purposes. ER 132 at ¶ 12; ER 52 at ¶ 13. At the relevant
times, The Satanic Temple had a Washington State Chapter (“the Chapter”), which was led by two individuals: one serving as “Chapter Head” and the other serving as “Media Liaison.” ER 52 at ¶ 14.

The Satanic Temple claims to use social media accounts, such as Facebook, to communicate with its members. ER 134 at ¶ 25; ER 54 at ¶ 29. The Satanic Temple’s Washington Chapter created the Chapter Facebook Page in 2014 to disseminate information for what was then the “Seattle Chapter.” Id. In September of 2018, the Washington Chapter created a secondary Facebook page named “TST WA Allies” (the “Allies Facebook Page” or the “Memes Facebook Page”) to facilitate communications with individuals who were interested in The Satanic Temple but did not want to identify as members. ER 134 at ¶ 26; ER 54 at ¶ 32.5

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II. The Expelled Members

In early 2020, the Expelled Members were members of The Satanic Temple and served as volunteers on The Satanic Temple’s Washington Chapter’s advisory council. ER 134-36 at ¶¶ 27-30; ER 52 at ¶ 17; 54-56 at ¶¶ 33-36. In connection with their positions, some of the Expelled Members managed the Chapter’s social media with other councilors and had administrative rights to The Satanic Temple’s social media accounts. ER 52, 54 at ¶¶ 17, 36. Specifically, The Satanic Temple gave some of the Expelled Members administrative rights to both Facebook pages. ER 56 at ¶ 36; ER 136 at ¶ 30. The Satanic Temple alleges that it maintained a code of conduct for activity on behalf of The Satanic Temple, including, allegedly, use of social media. ER 134-36 at ¶¶ 28-29; ER 54-56 at ¶¶ 34-35. The Satanic Temple alleges
that its Code of Conduct “form[ed] the contours of administrators’ authorization to access [its] social media accounts.” ER 136 at ¶ 29; ER 56 at ¶ 35.

On March 12, 2020, The Satanic Temple allegedly removed the Expelled Members from its advisory council and allegedly revoked their authorization to manage the Chapter’s social media activity. ER 58 at ¶¶ 43-44.

On March 14, 2020, Ex-Member Mickey Powell (then known as Mickey Meehan), who had been managing the Memes Facebook Page, removed other administrators from that Memes Page and changed the name to “Evergreen Memes for Queer Satanic Fiends.6” ER 137-38 at ¶¶ 36-37; ER 59 at ¶ 46. Powell then allegedly began posting material allegedly in violation of The Satanic Temple’s Code of Conduct. ER 138 at ¶ 37; ER 59 at ¶ 47.7

Following Powell’s posts, the Washington Chapter Head claims to have revoked the Expelled Members’ authority to its remaining social media accounts. ER 59-60 at ¶ 49. However, Johnson still had administrative access to the Chapter Facebook Page. On March 20, 2020, Johnson allegedly removed other administrators from the Chapter Facebook Page and posted content on that page regarding his and others’ ejections from The Satanic Temple, criticism of the
organization, and descriptions of its failure to live up to its own stated values. ER 138-39 at ¶¶ 38-41; ER 60 at ¶¶ 51-52; ER 89-91. The Chapter’s media liaison, Paul Case (who goes by the name Tarkus Claypool), emailed Johnson and asked him to return the Chapter Facebook Page, but Johnson did not respond. ER 60-61 at ¶¶ 53-
54. That night Johnson re-posted articles that were critical of The Satanic Temple on the Chapter Facebook Page. ER 139 at ¶ 41; ER 60-61 at ¶ 55; ER 93-109. On March 22, 2020, Johnson changed the name of the Chapter Facebook Page from 12 “The Satanic Temple Washington” to “Satanic Washington State—Archived Temple Chapter” and modified the profile picture. ER 139 at ¶ 43; ER 61 at ¶ 57. The Satanic Temple’s attorney sent a letter to Johnson asking him to relinquish control of the Chapter Facebook Page, but Johnson did not respond. ER 62 at ¶¶ 64-65. The Satanic Temple claims to have lost between 20 and 30 members due to allegedly false claims about The Satanic Temple that Johnson published to the Chapter Facebook Page in March of 2020. ER 139 at ¶ 48; ER 62 at ¶ 62.

The Satanic Temple subsequently requested administrative control of the Chapter Facebook Page from Facebook. Facebook initially refused and stated that it was a “Page admin issue” not involving “infringements of [The Satanic Temple’s] legal rights.” ER 139-40 at ¶¶ 50-52. However, at The Satanic Temple’s request, on May 27, 2020, Facebook removed the Expelled Members as administrators and gave administrative control of the Chapter Facebook Page to The Satanic Temple. ER 62 at ¶¶ 4, 66; ER 76. The Satanic Temple does not allege that the Expelled Members have accessed, attempted to access, or have had any means of accessing the Chapter Facebook Page since then.

The Satanic Temple does not allege that it ever sought return of the Memes Page from either the Expelled Members or Facebook.

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III. The Satanic Temple Files Suit Against the Expelled Members

Based on Their Critical Posts The Satanic Temple filed its original Complaint on April 3, 2020, in which it asserted claims against the Expelled Members for defamation, “hacking” under the CFAA, cyberpiracy under the ACPA, tortious interference with business expectancy, and violation of the Washington’s Consumer Protection Act, RCW 19.86. See ER 130-77. On February 26, 2021, the District Court dismissed all claims for failure to state a claim upon which relief could be granted. ER 111-29. The District Court dismissed the defamation claim with prejudice and dismissed the remaining claims without prejudice and with leave to amend. ER 129. The Satanic Temple moved for reconsideration of the dismissal of the ACPA and defamation claims. SER 214-21. The District Court denied The Satanic Temple’s Motion for Reconsideration on April 12, 2022. ER 43-48.

While the motion for reconsideration was pending, The Satanic Temple filed a First Amended Complaint. The parties subsequently filed a stipulated motion for leave to file a Second Amended Complaint (“SAC”), which the District Court granted on May 10, 2021. In the SAC, The Satanic Temple reasserted its CFAA “hacking” claim and a state law tortious interference claim. ER 49-73. The Satanic Temple did not try to salvage its dismissed ACPA/cyberpiracy or CPA claims. Instead, it asserted a new array of claims based on the Expelled Members’ March 2020 Chapter Facebook Page postings, specifically, new federal trademark dilution claims under the Federal Trademark Dilution Revision Act of 2006, 15 U.S.C. § 1125(c) (“FTDRA”), and new state law claims for trespass to chattels and conversion. Id.

On April 15, 2022, in response to the Expelled Members’ Motion to Dismiss the SAC, SER 172-99; SER 157-71, the District Court dismissed the two remaining federal claims, i.e., the CFAA “hacking” claim and the FTDRA trademark dilution claim. ER 10, 18-29, 37-40. Dismissal of the CFAA claim was without leave to amend as to the portions relating to the Twitter and Google accounts, the Memes Facebook Page, and Expelled Members Powell, Fishbaugh, and Sullivan, but was with leave to amend as to the portions of the claim relating to the Chapter Facebook Page and Johnson. ER 40-42. The District Court also granted leave to amend the FDTRA claim. Id. However, The Satanic Temple did not attempt to amend these claims. Accordingly, the District Court’s April 15, 2022 order resulted in dismissal of all federal claims. The District Court also dismissed the state law conversion and trespass to chattels claims as to the Chapter Facebook Page, without granting leave to amend. ER 33-37, 41.

The District’s Court’s order left only three surviving state law claims: the tortious interference claim and the conversion/trespass to chattels claims as to only the Memes Facebook Page and the alleged membership documents. On May 13, 2022, the Expelled Members moved to dismiss these remaining state law claims for lack of subject matter jurisdiction. SER 145-56.8 On January 6, 2023, the District
Court dismissed the remaining state law claims for lack of subject matter jurisdiction. ER 5-9. The Satanic Temple filed a timely notice of appeal on January 24, 2023.

[Table of Contents]

IV. This Appeal

The Satanic Temple filed its Opening Brief on April 26, 2023, seeking review of two issues: (1) the District Court’s dismissal of the ACPA/cyberpiracy claim, and (2) the District Court’s dismissal of the defamation claim. Opening Brief at 9.

[Table of Contents]

SUMMARY OF THE ARGUMENT

I. The District Court Properly Dismissed The Satanic Temple’s ACPA Claim

The Satanic Temple’s claim for cyberpiracy under the ACPA fails for four independent reasons, each of which is fatal to The Satanic Temple’s claim.

First, The Satanic Temple’s cyberpiracy claim fails because it does not involve a “domain name” as required by the ACPA. Rather, The Satanic Temple’s claim arises from the post-domain portion of the Chapter Facebook Page’s uniform resource locator (“URL”), which is not actionable under the ACPA.

Next, The Satanic Temple’s ACPA claim fails because, even if the post-domain portion of the Chapter Facebook Page’s URL could serve as grounds to invoke the ACPA, Facebook is not a “domain registration authority.” For a URL to constitute a “domain,” it must be registered by a domain name registrar. No such registrar having registered the Chapter Facebook Page URL, The Satanic Temple’s ACPA claim fails.

The Satanic Temple’s ACPA claim also fails because The Satanic Temple has not (and cannot) alleged that the Expelled Members were the domain name registrant or the registrant’s authorized licensee, which is required to state a claim under 15 U.S.C. § 1125(d)(1)(A), as The Satanic Temple has attempted here.

Finally, the Satanic Temple failed to plead that the Expelled Members had a bad faith intent to profit from their alleged use of the Chapter Facebook Page. A bad faith intent to profit is an element of an ACPA cyberpiracy claim. 15 U.S.C. § 1125(d)(1)(A)(ii).

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II. The District Court Properly Dismissed The Satanic Temple’s
Defamation Claim

The First Amendment’s Free Exercise Clause forbids courts from delving into and defining the beliefs, tenets, and practices of any religious organization. The First Amendment’s Establishment Clause prohibits a government (including the courts) from supporting or endorsing a religion. The Satanic Temple agrees that, because it is a self-professed religious organization, the Free Exercise Clause prohibits courts from interpreting and defining its beliefs, tenets, and practices, as the District Court held would be required to resolve the defamation claim. The Satanic Temple proposes a radical and unsupported alternative that would require courts to violate the Establishment Clause by supporting its beliefs. Specifically, and without any supporting authority, The Satanic Temple argues that when a religious organization such as The Satanic Temple asserts a defamation claim against dissenting members, the religious organization should be the sole arbiter of the truth or falsity of the
dissenting members’ statements. The First Amendment forbids The Satanic Temple from stepping into the shoes of the court and jury, turning courts into The Satanic Temple’s enforcement arm in its quest to silence dissenting members. In addition to offending the First Amendment, The Satanic Temple’s proposal would violate established defamation law by denying defendants the ability to assert truth as a defense. It would also unjustly guarantee that The Satanic Temple, as the sole arbiter of truth and falsity, would succeed on all defamation claims asserted against dissenting members or others, including the press. The Court must reject this unsupported and inequitable approach and uphold the District Court’s correct application of the law in dismissing the defamation claim.

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STANDARD OF REVIEW

The Expelled Members agree that the standard of review of the District Court’s decisions dismissing The Satanic Temple’s claims is de novo. Burgert v. Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663 (9th Cir. 2000).

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ARGUMENT

I. The Satanic Temple Failed to State a Cyberpiracy Claim under the ACPA

The District Court’s well-reasoned dismissal of The Satanic Temple’s ACPA cyberpiracy claim should be affirmed. As the District Court correctly found, The Satanic Temple’s ACPA claim contains a fundamental flaw—it is not based on a domain name and thus is not covered by the ACPA. ER 119-23; ER 43-46. The Satanic Temple has no cure for this fatal defect.

Dismissal of the ACPA claim is required for three additional reasons.9 First, the URL that is the subject of The Satanic Temple’s claim was not registered with a domain name authority. Accordingly, it does not meet the definition of “domain” under the ACPA. Next, The Satanic Temple does not allege that the Expelled Members were registrants of the “domain” at issue (or the registrant’s authorized licensee) as required by the ACPA. Finally, The Satanic Temple failed to allege that the Expelled Members had a bad faith intent to profit from their use of the Chapter Facebook Page. Any one of these reasons require dismissal. All apply.

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A. The ACPA

“The paradigmatic harm that the ACPA was enacted to eradicate” is “the practice of cybersquatters registering several hundred domain names in an effort to sell them to the legitimate owners of the mark.” Lamparello v. Falwell, 420 F.3d 309, 318-19 (4th Cir. 2005) (quoting Lucas Nursery & Landscaping, Inc. v. Grosse, 359 F.3d 806, 810 (6th Cir. 2004)). “The Act was also intended to stop the registration of multiple marks with the hope of selling them to the highest bidder.”
Id. To prevail on an ACPA claim, a plaintiff must establish: (1) defendants registered, trafficked in, or used a domain name; (2) that was identical or confusingly similar to plaintiff’s mark; (3) plaintiff’s mark, at the time defendants registered their domain name, was distinctive; and (4) defendants committed these acts with a bad
faith intent to profit from plaintiff’s mark. 15 U.S.C. § 1125(d)(1)(A); DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218-19 (9th Cir. 2010) (“To prevail on a cyberpiracy claim, a plaintiff must prove that ‘(1) the defendant registered, trafficked in, or used a domain name; (2) the domain name is identical or confusingly similar to a protected mark owned by the plaintiff; and (3) the defendant acts with ‘bad faith intent to profit from that mark.’”) (quoting 15 U.S.C. § 1125(d)(1)(A)). Under the ACPA, “[a] person shall be liable for using a domain name under subparagraph (A) only if that person is the domain name registrant or that registrant’s authorized licensee.” 15 U.S.C. § 1125(d)(1)(D).

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B. The District Court Correctly Found that The Satanic Temple’s ACPA Claim Fails Because it Does not Involve a Domain Name

The District Court correctly found that The Satanic Temple’s ACPA claim failed as a matter of law because it does not involve a domain name as required by the ACPA. ER 44-46. Relying solely on its own interpretation of the ACPA, The Satanic Temple argues that the District Court erred and should have found that the term “domain name” includes the alphanumeric address for a Facebook page. Opening Brief at 17. However, The Satanic Temple’s interpretation is not supported by the ACPA, its legislative history, or case law. As the District Court correctly found and as argued by the Expelled Members (SER 200-13), numerous courts have defined a “domain name” as consisting of only two parts: a “top-level” domain and a “second-level” domain. Id. (quoting Office Depot Inc. v. Zuccarini, 596 F.3d 696, 698 (9th Cir. 2010)). The top-level domain (“TLD”) includes the portion of the domain name to the right of the period, such as .com, .gov, .net, etc. Id. Each TLD is divided into second-level domains identified by the designation to the left of the period, such as “example” in “example.com” or “example.net.” Id. The Court further correctly found that only these two domain levels are covered by the ACPA, and no court has found that the ACPA applies to any URL component beyond top-level and second-level domains. ER 45 (citing GoForIt Entm’t, LLC v. DigiMedia.com L.P., 750 F. Supp. 2d 712, 725 (N.D. Tex. 2010) (“The court has found no case, and [plaintiff] has cited none, that holds that a portion of a web address other than a second or top level domain constitutes a ‘domain name’ within the meaning of the ACPA.”)); see also, e.g., Jones v. Hollywood Unlocked, Inc., No. 2:21-cv-07929-MEMF(PVCx), 2022 WL 18674459, at *25 (C.D. Cal., Nov. 22, 2022) (dismissing ACPA claim based on the post-domain portion of a Twitter handle) (“As previously stated, a domain name signifies a source of origin. Analyzing the website in question—www.twitter.com/themahnetea—the domain name is restricted to the TLD or ‘twitter.com.’ The ‘themahnetea’ instead qualifies as the ‘post-domain name path’ or as a ‘vanity URL.’”) (internal footnotes and citations omitted).

The District Court also noted that, as argued by the Expelled Members (SER 200-13), the ACPA’s legislative history supports the conclusion that the term “domain name” in the ACPA refers only to second-level domain names and not portions of a post-domain path. ER 46; SER 212-13. The legislative history upon which the District Court relied includes comments by the ACPA’s co-sponsor Senator Patrick Leahy:

Domain names are narrowly defined to mean alphanumeric
designations registered with or assigned by domain name registrars or registries, or other domain name registration authority as part of an electronic address on the Internet. Since registrars only register second level domain names, this definition effectively excludes file names, screen names, and e-mail addresses and, under current registration practice, applies only to second level domain names.

SER 212-13 (145 Cong. Rec. 14986, 15025 (1999) (emphasis added)).

Applying this authority here, the District Court correctly found that The Satanic Temple’s claim is not actionable under the ACPA because it is based on a post-domain portion of its Facebook URL. The URL at issue is https://www.facebook.com/TheSatanicTempleWashington/”). The bolded portion of the URL is the post-domain path at issue. ER 45. This part of the URL was not issued by a Domain Name System (“DNS”) registry or included on a DNS registry and is not part of the top-level or second-level domain. ER 45-46. The District Court held that because the ACPA does not apply to this post-domain alphanumeric electronic address that designates a Facebook page, The Satanic Temple’s ACPA claim fails as a matter of law. Id. Because The Satanic Temple offers no substantive authority that suggests a different result, the District Court’s correct decision must be upheld.10

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C. Facebook is not an “Other Domain Registration Authority”

The Satanic Temple notes that to qualify as a domain name, a domain name must be registered by a domain name registrar. Opening Brief at 22 (citing 15 U.S.C. § 1127) (“The term ‘domain name’ means any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.”). The Satanic Temple then argues that Facebook should be considered an “other domain registration authority.” Id. The District Court correctly rejected this argument. ER 45-46. First, the argument is a red herring as, even if it had merit (which it does not), it would not save The Satanic Temple’s ACPA claim because that claim relates to a post-domain path and not a domain name. See Section I.B, supra. Second, Facebook is not an “domain registration authority.”

The Satanic Temple’s argument that Facebook should be deemed a domain registration authority reflects its fundamental misunderstanding of how the Domain Name System (“DNS”) works. In summary, the DNS is overseen by an entity called the Internet Corporation for Assigned Names and Numbers (“ICANN”).11 SER 200-13. ICANN is a not-for-profit corporation formed in 1998 and selected by the U.S. Department of Commerce to administer the internet DNS with input from a governmental advisory committee, in which the Department of Commerce participates. Vizer v. VIZERNEWS.COM, 869 F. Supp. 2d 75, 77-78 (D.D.C. 2012) (citing ICANN, National Telecommunications & Information Administration, U.S. Department of Commerce, http://www.ntia.doc.gov/category/icann). The DNS links user-friendly names, such as “uscourts.gov,” to unique numeric addresses that identify servers connected to the internet. Id. at 78 (citing Balsam v. Tucows Inc., 627 F.3d 1158, 1159 (9th Cir. 2010) and Domain Name System, National Telecommunications & Information Administration, U.S. Department of Commerce, http://www.ntia.doc. gov/category/domain-name-system (describing the domain name system and ICANN)). SER 203-06.

ICANN itself is not a registrar. Instead, it coordinates the DNS by entering into registry agreements with Internet registries. Vizer, 869 F. Supp. 2d at 78. Each top-level domain—such as .com, .net, or .org—is operated by one of the authorized registries that maintains information on each registered domain name and ensures that each name registered in its domain is unique. Registries also offer a variety of services, such as permitting consumers to check if a particular name within its domain has been registered and, if so, the expiration date for such registration. Id. For example, Verisign, Inc. (“Verisign”) is the registry for “.com” and “.net” domains and is responsible for registering names on these domains in accordance with its Registry Agreement with ICANN. Dotster, Inc. v. Internet Corp. For Assigned Names & Numbers, 296 F. Supp. 2d 1159, 1160 (C.D. Cal. 2003). Because Verisign is prohibited from accepting requests for domain names directly from consumers, Verisign only accepts and registers domain names received from registrars. Id. at 1160; Vizer, 869 F. Supp. 2d at 78 (citing What Does ICANN Do?, ICANN, http://www.icann.org/en/about/participate/what); see also Office Depot, Inc. v. Zuccarini, 596 F.3d 696, 699 (9th Cir. 2010).

The Satanic Temple argues that Facebook, in its role as a social media
company, should be considered an “other domain name registration authority” because Facebook users register their Facebook accounts with Facebook. Opening Brief at 22-23. This argument fails to acknowledge or understand that a “registration authority” means something very specific in the DNS context: it is a registry under a registry agreement with ICANN or an authorized registrar for that registry that registers domain names with the registry. The Satanic Temple has alleged no facts that Facebook, as a social media provider, operates as an authorized DNS registration authority, i.e., that Facebook has entered a registry agreement with ICANN or that it registers domain names with an authorized DNS registry, much less that it has registered the particular URL at issue here. That Facebook’s users register their Facebook accounts with Facebook is irrelevant—that has nothing to do with the registration of domain names under the DNS process overseen by ICANN. In other words, without any supporting authority, The Satanic Temple is proposing an entirely new and different system from the DNS, whereby social media companies who do not provide any DNS services—but instead provide social media accounts to their users—should somehow be considered “domain name registration authorities” under the ACPA. As the District Court found, this proposition is entirely unsupported. ER 46 (“The court agrees with Defendants that TST’s novel argument that Facebook should be considered a ‘domain name registry’ is not supported by existing caselaw or by the ACPA’s legislative history.”).12

Indeed, the ACPA’s legislative history underscores that 15 U.S.C. § 1127
refers only to authorized DNS registries who register second-level domain names. Again, ACPA co-sponsor Senator Patrick Leahy’s comments on the bill are illuminating:

Domain names are narrowly defined to mean alphanumeric designations registered with or assigned by domain name registrars or registries, or other domain name registration authority as part of an electronic address on the Internet. Since registrars only register second level domain names, this definition effectively excludes file names, screen names, and e-mail addresses and, under current registration practice, applies only to second level domain names.

The terms “domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name” in Section 3002(a) of the Act, amending 15 U.S.C. 1125(d)(2)(a), is intended to refer only to those entities that actually place the name in a registry, or that operate the registry, and would not extend to other entities such as the ICANN or any of its constituent units, that have some oversight or contractual relationship with such registrars and registries. Only these entities that actually offer the challenged name, placed it in a registry, or operate the relevant registry are intended to be covered by those terms.

SER 212-13 (145 Cong. Rec. 14986, 15025 (1999) (emphases added)).

If The Satanic Temple’s unsupported proposal to expand the ACPA to social media companies were accepted, the ACPA would suddenly expand well beyond the DNS and registered domain names. Under The Satanic Temple’s framework, the ACPA would apply to potentially billions13 of social media accounts that are not registered with the DNS. Such a vast shift in the scope of the ACPA should be left to Congress, not the courts. The District Court correctly held that Facebook is not a domain registration authority and The Satanic Temple offers no valid grounds why this correct decision should not be affirmed.

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D. The Satanic Temple’s ACPA Claim Also Fails as a Matter of Law Because The Satanic Temple did not Allege That the Expelled Members Were the Domain Name Registrants

In addition to the fatal flaw of not involving a domain name, The Satanic Temple’s failure to allege that the Expelled Members were domain name registrants provides further grounds for affirming dismissal of the claim. The ACPA provides that “[a] person shall be liable for using a domain name under subparagraph (A) only if that person is the domain name registrant or that registrant’s authorized
licensee.” 15 U.S.C. § 1125(d)(1)(D) (emphasis added). The Satanic Temple brings its cyberpiracy claim under 15 U.S.C. § 1125(d)(1)(A), so this requirement applies. ER 142. In its Complaint, The Satanic Temple did not allege that the Expelled Members were “the domain name registrant or that registrant’s authorized licensee.” See ER 142. Rather, The Satanic Temple alleged that “[i]n October of 2014, the Washington Chapter business page was created exclusively for the benefit of TST in its efforts to disseminate information for what was then the Seattle Chapter.” ER 134 at ¶ 23. Because The Satanic Temple failed to allege that the Expelled Members were “the domain name registrant or that registrant’s authorized licensee,” The Satanic Temple failed to state a claim upon which relief could be granted. Bird v. Parsons, 289 F.3d 865, 881 (6th Cir. 2002) (“liability for using a domain name can only exist for the registrant or that person’s authorized licensee”) (emphasis in original); see also 1-800-411-I.P. Holdings, LLC v. Georgia Injury Centers, LLC, 71 F. Supp. 3d 1325, 1328-29 (S.D. Fla. 2014). For this reason, too, this Court should affirm the District Court’s dismissal of the ACPA claim.

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E. The Satanic Temple Failed to Plead a Bad Faith Intent to Profit

Yet one more ground mandates dismissal of The Satanic Temple’s ACPA claim—The Satanic Temple failed to plead that the Expelled Members had a bad faith intent to profit from their use of the Chapter Facebook Page. See ER 142. A plaintiff can only prevail on an ACPA claim if it can prove, inter alia, a bad faith intent to profit on the part of the defendant in the registration of its domain names, and that the parties’ domain names are confusingly similar. 15 U.S.C. § 1125(d)(1)(A); see also, e.g., Fifth Ave. of Long Island Realty Assocs. v. Caruso Mgmt. Co., 718 F. Supp. 2d 292, 313 (E.D.N.Y. 2010); Sporty’s Farm, LLC v. Sportsman’s Mkt., Inc., 202 F.3d 489, 497-99 (2d Cir. 2000); Dudley v. HealthSource Chiropractic, Inc., 585 F. Supp. 2d 433, 438 (W.D.N.Y. 2008). The Satanic Temple did not plead that the Expelled Members had a bad faith intent to profit from their use of the Chapter Facebook Page. The Satanic Temple alleges that the Expelled Members used the allegedly misappropriated Facebook page to post critical commentary about The Satanic Temple. See, e.g., ER 139 at ¶ 41. Nowhere, however, does The Satanic Temple allege that the Expelled Members had any intent to use the Facebook page for any commercial gain or had any intent to obtain a profit of any sort from the Facebook page. Absent the element of a bad faith intent to profit, The Satanic Temple’s cyberpiracy claim fails as a matter of law and dismissal of the claim was required on this ground as well. See, e.g. Carl v. BernardJcarl.Com, 409 F. App’x 628, 630 (4th Cir. 2010) (upholding dismissal of cyberpiracy claim where the defendant did not use the disputed domain name with intent to profit); Sabin v. Curt Mfg. Co., No. CV-08-1852-PHX-SRB, 2009 WL 10673588, at *7 (D. Ariz., May 4, 2009) (dismissing cyberpiracy claim for failing to adequately allege bad faith intent to profit).

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II. The District Court Correctly Dismissed the Defamation Claim

A. The District Court Correctly Applied the Ecclesiastical
Abstention Doctrine to Dismiss the Defamation Claim

The District Court correctly found that The Satanic Temple’s defamation claim, which asserts that the Expelled Members “falsely ascrib[ed] extremist ideologies and affiliations to T[he Satanic Temple],” would require the District Court to delve into The Satanic Temple’s tenets, beliefs, and practices. ER 127-29; ER 47-48. A defamation claim necessarily requires a court or jury to determine if the alleged defamatory statement is false as a required element of defamation. Id. (citing Herron v. KING Broad. Co., 112 Wn. 2d 762, 768, 776 P.2d 98 (Wash. 1989). Similarly, it has long been established in Washington that truth is a complete defense to a claim for defamation, thus requiring a court to consider the defendant’s defense that the statements were true. Jolly v. Fossum, 59 Wn. 2d 20, 24, 365 P.2d 780 (Wash. 1961) (“Truth, as we have said too often to require citation, is a complete defense in an action of this type [defamation].”). Therefore, as the District Court correctly found, to determine if the Expelled Members’ statements in the Chapter Facebook Page posts about The Satanic Temple’s beliefs, tenets, and practices were true or false, as required in a defamation claim, the court could not avoid delving into and defining The Satanic Temple’s beliefs, tenets, and practices.

The District Court could not engage in this analysis without running afoul of the First Amendment: “That would require the Court or jury to define the beliefs held by The Satanic Temple and to determine that ableism, misogyny, racism, fascism, and transphobia fall outside those beliefs. The Court cannot do that without violating the First Amendment.” ER at 128-29; ER 47-48. The District Court’s holding is correct and, as discussed below, well supported by law.

The First Amendment includes two clauses that separate the government from religion: the Establishment Clause and the Free Exercise Clause. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, ___ U.S. ___, 140 S. Ct. 2049, 2060-61, 207 L. Ed. 2d 870 (2020) (summarizing both the Establishment Clause and the Free Exercise Clause). Among other things, the First Amendment’s religion clauses protect the right of churches and other religious institutions to decide matters “of faith and doctrine” without government intrusion. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 186, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012) (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116, 73 S. Ct. 143, 97 L. Ed. 120 (1952)). “State interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion.” Id.

One way that courts uphold the Free Exercise Clause is through the
ecclesiastical or ministerial abstention doctrine, pursuant to which courts defer to religious organization’s internal management decisions that are essential to the institution’s central mission. Our Lady of Guadalupe, 140 S. Ct. at 260. The doctrine does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to challenges to their internal management decisions that are essential to the institution’s central mission. Id. The ecclesiastical abstention doctrine is a defensive doctrine. Religious organizations may use the doctrine against plaintiffs seeking to challenge the church’s authority to manage its internal affairs, such as hiring and firings of its ministers or employees. Id. For example, the ecclesiastical abstention doctrine prevents courts from interfering in a challenge to a church’s decision to remove a bishop or minister pursuant to the church’s internal rules and policies. Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 709, 96 S. Ct. 2372, 2380, 49 L. Ed. 2d 151 (1976) (religious controversy surrounding a church’s removal of its bishop was not proper subject of civil court inquiry, and the civil court must accept ecclesiastical decisions of church tribunals as it finds them). Similarly, the doctrine can be used defensively against claims brought against a church. Our Lady of Guadalupe, 140 S. Ct. at 2060-61 (abstention doctrine can be used defensively to prevent employment law claims by employees of a Catholic school).

Pursuant to these principles, case law is clear that when presented with a defamation claim involving a religious organization’s beliefs, tenets, or practices, the ecclesiastical abstention doctrine requires the court to dismiss the claim, as the District Court did here. See, e.g., Hyung Jin Moon v. Hak Ja Moon, 431 F. Supp. 3d 394, 413 (S.D.N.Y. 2019), aff’d, 833 F. App’x 876 (2d Cir. 2020) (“Because the Court may not, consistent with the First Amendment, pass upon the truth or falsity of statements concerning plaintiff’s or Mrs. Moon’s purported religious standing, plaintiff’s remaining defamation claim must be dismissed.”); Kavanaugh v. Zwilling, 997 F. Supp. 2d 241, 250 (S.D.N.Y. 2014), aff’d, 578 F. App’x 24 (2d Cir. 2014) (“[W]here a court or jury would have to determine the truth of the defendants’ statements . . . and, in doing so, would examine and weigh competing views of church doctrine, the result is entanglement in a matter of ecclesiastical concern that is barred by the First Amendment.”) (internal quotation marks omitted); Hartwig v. Albertus Magnus Coll., 93 F. Supp. 2d 200, 219 (D. Conn. 2000) (dismissing defamation claim where review of the claim would require the court to delve into and weigh competing views of church doctrine); Hubbard v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1221 (D.N.M. 2018) (plaintiff’s defamation claim against religious organization barred by the First Amendment); Klagsbrun v. Va’ad Harabonim of Greater Monsey, 53 F. Supp. 2d 732, 741 (D.N.J. 1999), aff’d sub nom. Klagsbrun v. Vaad Harabonm of Greater Monsey, 263 F.3d 158 (3d Cir. 2001) (plaintiff’s defamation claim against association of Orthodox Jewish rabbis barred by First Amendment).

The Satanic Temple offers no viable grounds for disturbing the District Court’s decision that the ecclesiastical abstention doctrine prevented it from deciding the defamation claim. The Satanic Temple does not dispute that its defamation claim turns on interpretation of The Satanic Temple’s religious beliefs, tenets, and practices. Opening Brief at 25 (“The original complaint asserted defamation liability for Defendants’ provably false statements about TST’s tenets . . . .”). The Satanic Temple also agrees that “[u]nder the Free Exercise Clause, church doctrine is to be resolved by the church, not by the government (courts included).” Id. (citing Our Lady of Guadalupe, 140 S. Ct. at 2055). Thus, The Satanic Temple agrees that the First Amendment prohibited the District Court from delving into its beliefs, tenets, and practices, despite that its defamation claim turns on exactly those issues. Id. at 25 (stating that allegedly defamatory statements are “about TST’s tenets”).

The Satanic Temple proposes to overcome the First Amendment’s bar to its defamation claim by creating a novel, unsupported, and self-serving new doctrine. The Satanic Temple suggests that it be allowed to step into the shoes of the court and jury to become the sole arbiter of defamation claims against its expelled members. Specifically, without any supporting authority, The Satanic Temple proposes that it—and it only—decide whether the Expelled Members’ statements abouts its beliefs or tenets were true or false:

When a defamation claim turns on application of church doctrine, courts and juries are bound to apply the definition given by the church and may not consider a competing definition.

Opening Brief at 28 (emphasis in original). In other words, The Satanic Temple proposes that when it invokes a court’s power against dissenting members by filing a defamation claim based on their views of the church’s beliefs, The Satanic Temple should be the sole arbiter of the truth or falsity of the statements at issue, without allowing the defendants to challenge its assertions. For example, if a dissenting member asserts that The Satanic Temple’s fundamental tenets, including “freedom to offend,” favor racism or misogyny and The Satanic Temple sues the dissenting member for defamation, The Satanic Temple believes that it should be allowed to simply assert that its beliefs do not favor these ideologies. The analysis would end there. Under The Satanic Temple’s proposed new doctrine, the dissenting member would not be allowed to offer any evidence that the statements were actually true.

Instead, the court would be bound to simply accept The Satanic Temple’s characterization of its beliefs and rule accordingly, ensuring that The Satanic Temple would always succeed in defamation claims—or any claim relating to religious doctrine—it brings against dissenting members.

The District Court correctly rejected this argument. ER 47-48. The Satanic Temple’s proposal would turn First Amendment law on its head, requiring courts to blindly accept a religious organization’s fiat on its own defamation claims, resulting in the court becoming a de facto enforcement arm the church. The First Amendment’s Establishment Clause prohibits such government support of a religion. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970) (The First Amendment’s Establishment Clause bars all government “sponsorship, financial support, [or] active involvement . . . in religious activity,” while the second Clause, the Free Exercise Clause, bars all “governmental restraint on religious practice.”).

The Satanic Temple’s proposal also improperly turns the ecclesiastical
abstention doctrine from a shield into a sword. Rather than using the doctrine defensively to protect its internal management decisions from a court’s interference as envisioned by the Free Exercise Clause, The Satanic Temple asserts that it should be allowed to use the doctrine as a sword by which it employs courts to affirmatively impose its views of its beliefs, tenets, and practices on dissenting members. In other words, instead of asking courts to step aside from matters involving a religious organization’s beliefs, tenets, or practices, The Satanic Temple is inviting courts to become directly involved in religious disputes by imposing The Satanic Temple’s views of its beliefs and practices on dissenting members. The Satanic Temple cites no authority in support of this novel concept and the Expelled Members have found no cases in which a court allowed a religious organization to affirmatively wield the ecclesiastical abstention doctrine as a sword—essentially establishing a de facto blasphemy law.14 Whether the religious organization is a plaintiff or defendant, the law must be applied consistently.15 Pursuant to well-established First Amendment 38 case law, the Court must uphold the District Court’s well-reasoned and correct decision to dismiss the defamation claim.16

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B. In the Alternative, Dismissal of the Defamation Claim Should be Upheld for Lack of Subject Matter Jurisdiction

The District Court’s dismissal of the defamation claim pursuant to the First Amendment was correct and should be affirmed. Alternatively, The Satanic Temple’s defamation claim is subject to dismissal for lack of subject matter jurisdiction. After the District Court dismissed the federal claims, it found it lacked jurisdiction over the remaining state law claims because The Satanic Temple failed to satisfy the amount in controversy threshold for diversity jurisdiction. ER 5-9. The Satanic Temple asserted no additional damage from the Expelled Members’ alleged defamation. Indeed, The Satanic Temple did not even plead it had suffered monetary damages from those alleged defamatory statements. ER 144-45 (seeking injunctive relief and punitive damages,17 but no actual damages). Had the defamation claim not been dismissed for failure to state a claim, it would also be subject to dismissal for lack of subject matter jurisdiction. Thus, as an alternative ground, in the event the Court does not uphold the District Court’s dismissal, it should affirm dismissal of the defamation claim for lack of subject matter jurisdiction.

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C. The Satanic Temple Failed to State a Defamation Claim against Fishbaugh and Sullivan

If this Court concludes that the First Amendment does not bar The Satanic Temple’s defamation claim and that subject matter jurisdiction is available for that claim, The Satanic Temple has failed to state a defamation claim against Fishbaugh and Sullivan.

To establish a prima facie claim of defamation under Washington law, a private plaintiff must show (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages.18 United States Mission Corp. v. KIRO TV, Inc., 172 Wn. App. 767, 772, 292 P.3d 137 (Wash. Ct. App. 2013). The Satanic Temple alleged no communication by Fishbaugh or Sullivan at all, much less an unprivileged communication. ER 130-77. Accordingly, even if this Court finds that a court can entertain The Satanic Temple’s defamation claim without running afoul of the First Amendment, dismissal of the defamation claim must be upheld as to Fishbaugh and Sullivan for failure to state a claim upon which relief can be granted.

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CONCLUSION

For the reasons set forth above, the Expelled Members respectfully request that the Court affirm the District Court’s dismissal of The Satanic Temple’s ACPA and defamation claims.

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Footnotes

1 The Satanic Temple named “Mickey Meeham” as a defendant in the district court case from which this appeal arises. “Mickey Meeham’s” name was “Mickey Meehan” when the district court case was filed. Mickey Meehan has since changed his name to Mickey Powell, which the Expelled Members use in this brief.

2 More than three years after the alleged conduct, The Satanic Temple asserted yet another state law claim—this time for breach of fiduciary duty—against the Expelled Members in King County Superior Court. See United Federation of Churches v. Johnson, et al., No. 23-2-06120-9 SEA (King County Superior Court).

3 The Court may take judicial notice that The Satanic Temple has refiled the state law claims that were dismissed for lack of jurisdiction (in addition to the new claim for breach of fiduciary duty) in state court, No. 23-2-06120-9 SEA (King County Superior Court). Fed. R. Evid. 201; see also, e.g., MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (finding matters of public record outside the proceeding, such as motions filed in other cases, proper subjects of judicial notice); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of briefs, transcripts, and various other court filings from a related case).

4 In their Reply in Support of Motion to Dismiss, the Expelled Members argued that The Satanic Temple’s assertion that it satisfied the amount in controversy requirement was not in good faith. The Expelled Members submitted evidence that The Satanic Temple’s counsel had admitted that The Satanic Temple did not have claimed damages sufficient for diversity jurisdiction. SER 121-22 at ¶ 2. The Satanic Temple’s counsel also made public statements admitting that he had to “come up with” $75,000 in damages, suggesting that the subsequently alleged damages were feigned. SER 123 at ¶ 5; SER 136. He further publicly explained that the reason he wanted to be in federal court with the now-dismissed federal claims was to maximize damages and collect attorneys’ fees. SER 123 at ¶ 4; SER 132 (“I wanted some federal statutes to apply because that would maximize TST’s damages, would keep us in Federal court (as opposed to State court), and provided the option to collect attorney’s fees for having to litigate this.”). This, too, suggests that The Satanic Temple’s damage contentions were merely pretextual for the purpose of trying to remain in federal court.

The same counsel revealed The Satanic Temple’s and his bad faith motives by publicly calling Expelled Members “morons” and “pathetic” and stating his hope that this lawsuit would cause them to incur an unsustainable amount of attorneys’ fees in defending against this matter. SER 122 at ¶ 3; SER 127 (“I hope he [the Expelled Members’ attorney] squeezes every last penny from you living corpses, and anyone that gives you the time of day.”). Although the District Court did not address The Satanic Temple’s bad faith assertion of the amount in controversy, this too supports the District Court’s determination that The Satanic Temple failed to plead the required amount in controversy.

5 The Satanic Temple’s Complaint and Second Amended Complaint include alleged facts relating to its Google and Twitter accounts. In its brief, The Satanic Temple alleges that the Expelled Members unsuccessfully attempted to “hack” these accounts. Opening Brief at 12. However, none of the claims on appeal relate to the Google or Twitter accounts. Accordingly, those allegations are irrelevant to this appeal.

6 Before any of this controversy arose, Powell had removed himself from The Satanic Temple and was only involved with the Memes Facebook Page. Powell has not been involved with the Memes Facebook Page for approximately three years.

7 The Expelled Members object to The Satanic Temple’s disrespectful and untruthful use of the term “thieves” to refer to them throughout its brief. See, e.g., Opening Brief at 13 (“The thieves again moved for Rule12(b)(6) dismissal.”). Not only does this reflect a lack of decorum required in judicial proceedings, as The Satanic Temple is fully aware, but also the term is untrue.

In the District Court proceedings, the Expelled Members provided irrefutable evidence that The Satanic Temple relinquished any interest in the Memes Facebook Page to the Expelled Members. Specifically, as The Satanic Temple is well aware, on March 14, 2020, after Appellee Powell posted critical content on the Memes Facebook Page and changed its name, The Satanic Temple’s Chapter leadership acknowledged that activity and then expressly abandoned any The Satanic Temple interest in the Memes Facebook Page for the Expelled Members to use “free and clear:”

Hi Lenore [the pseudonym for Powell],

I saw that you made some changes to the TST WA State Allies FB group. I just wanted to let you know that it’s yours free and clear and we’ve no desire to claim it. You and ADJ [Johnson] built it and have done a great job doing so. I’m confident you’ll both continue doing awesome work.

I’m sorry the way things panned out, and I do mean all of it. I wish you and your family well, and respect your need to fight the fight your way.

Rock on, Tarkus Claypool
Media Liaison, The Satanic Temple of Washington
(he/him)

SER 17; SER 36 at ¶ 14; SER 52; SER 70-71 at ¶ 10; SER 76 (emphasis added).

The next day, in a March 15, 2020 online town hall meeting via Zoom, The Satanic Temple’s Media Liaison, Paul Case/Tarkus Claypool, again publicly reiterated in front of The Satanic Temple’s Washington members, including the Washington Chapter Head, that The Satanic Temple had no interest in claiming the Memes page:

I do want to say that we’re not going to, you know, ask Lenore to give the page back in any way. I wish them well, and I hope they continue growing that and make it a great success. Because they’re going to fight their fight, their way. And so, let them do what they want to, and I wish them well, because both Lenore and ADJ [Johnson] did a wonderful job in their roles that they had. It just wasn’t within the TST guidelines that we are beholden to. So I want to give them due credit, and just you know, wish them well with what they’re going to plan to do with it in the future.

SER 17; SER 36-37 at ¶ 15; SER 71 at ¶ 14; SER 77 at ¶ 2; SER 103-04.

Despite being fully aware of this irrefutable and exculpatory evidence, The Satanic Temple continues falsely to publicly assert in its Opening Brief to this Court that the Expelled Members are “thieves,” pointing to a sole offhand, joking comment by Appellee Sullivan that he had “stolen” the page—an obviously glib comment made after The Satanic Temple had already relinquished all interest in the page. SER 22; SER 72 at ¶ 15

8 On November 23, 2022, over two and a half years after filing its original complaint, The Satanic Temple filed a Motion for Preliminary Injunction seeking, for the first time, return of the Memes Facebook Page. As the Expelled Members set forth in their response, The Satanic Temple’s true purpose in filing the very belated, half-hearted motion was to continue to cause the Expelled Members to incur as many legal fees and costs as possible, as The Satanic Temple’s attorney had publicly stated was his hope. SER 10-102. The Satanic Temple’s motivation was underscored by the fact that it did not even bother to file a reply to its Motion for Preliminary Injunction, presumably satisfied that it had achieved its aim of causing the Expelled Members to incur substantial legal fees in responding to the Motion. The District Court ultimately dismissed the Motion for Preliminary Injunction as moot when it dismissed the remaining state law claims for lack of subject matter jurisdiction. ER 5-9.

9 Although not relied upon by the District Court, a “reviewing count may affirm . . . dismissal upon any basis fairly supported by the record.” Burgert, 200 F.3d at 663.

10 The Satanic Temple cites to H-D U.S.A., LLC v. SunFrog, LLC, No. 17-CV-711- JPS, 2017 WL 3261709, at *1 (E.D. Wis., July 31, 2017) on page 21 of its Opening Brief. This case provides no guidance here because it does not involve a cyberpiracy claim under the ACPA, but rather trademark infringement claims (“This is a trademark infringement case brought by Plaintiffs, collectively referred to as ‘Harley-Davidson,’ against Defendants, collectively referred to as ‘SunFrog.’”). Although The Satanic Temple asserted a trademark infringement claim in its Second Amended Complaint, that claim was dismissed (ER 37-42) and The Satanic Temple has not appealed it.

11 “The Court may take judicial notice of a fact, such as the role of ICANN, which is not subject to ‘reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’” Vizer v. VIZERNEWS.COM, 869 F. Supp. 2d 75, 77 n.3 (D.D.C. 2012) (citing Fed. R. Evid. 201(b) and United States v. Philip Morris USA, Inc., No. 99-2496, 2004 WL 5355971, at *1-*2 (D.D.C., Aug. 2, 2004)).

12 The Satanic Temple’s misunderstanding of how domain names work is reflected in its citation on page 21 of its Opening Brief to Wilens v. Doe Defendant No. 1, 2015 WL 5542529 (N.D. Cal. 2018). The Satanic Temple argues that because the WordPress websites in Wilens can be grounds for cyberpiracy liability then Facebook pages should qualify, too. However, The Satanic Temple fails to address that unlike Facebook pages, WordPress registers domain names (i.e., the alphanumeric designations that are listed before the “.com”) with ICANN. See, e.g., Murtagh v. Pardo, No. CV1505204MMMFFMX, 2015 WL 13828625, at *1 (C.D. Cal. Aug. 17, 2015) (noting that WordPress was the ICANN registrar for the website at issue); see also https://wordpress.com/support/domains/domain-registration-
agreements/. Nowhere does The Satanic Temple allege (nor could it) that Facebook is an authorized DNS registration authority with ICANN.

13 The Court may take judicial notice that Facebook alone has over three billion users. https://about.fb.com/company-info/. SER 206 at n.3.

14 The Satanic Temple appears to be unique among religious organizations in its affirmative use of the court system as a method of trying to silence dissenting religious views through defamation claims. The Expelled Members have been unable to find a similar defamation case involving religious beliefs asserted by another religious organization against former members.

15 The Satanic Temple asserts that the trial court created a “religious organization exemption” to defamation claims. Opening Brief at 27-28. To the contrary, the District Court applied the First Amendment consistently to The Satanic Temple’s claim in the same way other courts have applied the First Amendment to bar defamation claims brought against religious organizations. The Satanic Temple is proposing a separate rule for religious organizations by suggesting that when the religious organization is the plaintiff and asserts a defamation claim against a dissenting member, the religious organization should be allowed to control the truth/falsity analysis, while dissenting members would not receive that same benefit. There is no such special privilege for religious organizations under the First Amendment or defamation law.

The Satanic Temple also cites a defamation case it brought against a Newsweek Magazine reporter for allegedly defamatory statements in an article, including a statement regarding The Satanic Temple’s harassment of the Expelled Members in this suit through its assertion of its defamation claim against Expelled Members. The Southern District of New York dismissed the defamation claim against the reporter. Satanic Temple, Inc. v. Newsweek Mag. LLC, No. 1:22-CV-1343 (MKV), 2023 WL 2403136, at 9-10 (S.D.N.Y., Mar. 8, 2023) (The Satanic Temple failed to plausibly allege that statements in a magazine article were defamatory by implying that the organization harassed dissenting former members by bringing frivolous lawsuits against them, and thus failed to state a claim against the magazine and journalist for libel under New York law). While this case illustrates that The Satanic Temple frequently brings defamation claims, it contains no First Amendment issues or analysis and thus offers no guidance here.

16 The Satanic Temple also argues that the District Court should have applied the mixed opinion framework for the defamation claim. Opening Brief at 29 (citing Restatement (Second) of Torts § 566 (1977)). According to this Restatement section, “[a] defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” In other words, the mixed opinion analysis still involves delving into the implied facts behind the statement. It is unclear how this argument changes the analysis. Even if the court had applied a mixed opinion framework, it would still be required to delve into the implied facts relating to The Satanic Temple’s beliefs, tenets, and practices to determine if the actionable factual statements contained false, defamatory statements about the beliefs, tenets or practices. As discussed above, the First Amendment bars the court from doing so.

17 Punitive damages are unavailable under Washington law, absent statutory authorization. City of Seattle v. Monsanto Company, 387 F. Supp. 3d 1141, 1163 (W.D. Wash. 2019) (citing Steele v. Johnson, 76 Wn. 2d 750, 751-52, 458 P.2d 889 (Wash. 1969)).

18 The Expelled Members do not concede that The Satanic Temple should be considered a private plaintiff for purposes of its defamation claim


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