Accurate statement that SPLC called a group a “hate group” isn’t plausibly misleading without more

Liberty Counsel, Inc. v. GuideStar USA, Inc., — Fed.Appx.
—-, 2018 WL 4339716 (Mem), No. 18-1157 (4th Cir. Sept. 11, 2018)
Who controls procedure controls substance.  The district court granted GuideStar’s motion
to dismiss Liberty’s Lanham Act false advertising claim against it.  GuideStar is a nonprofit organization that
maintains an online directory of profiles on other nonprofits, including
Liberty, an organization dedicated to advancing Christian causes. After the
Southern Poverty Law Center designated Liberty as a hate group, GuideStar added
a banner to Liberty’s profile revealing this designation.  Liberty sued and the district court
determined that there was no commercial speech.
The court of appeals affirmed on alternate grounds: failure
to properly allege misleadingness. Liberty conceded that the SPLC had in fact
designated it as a hate group. Liberty alleged that this designation was
misleading, but “a complaint must state facts demonstrating that the
defendant’s liability is plausible, not merely possible.” “Here, other than
identifying a broad swath of people whom the banner allegedly deceived, Liberty
baldly alleged customer confusion without providing ‘further factual
enhancement.’”  But what additional facts
would demonstrate misleadingness?  The
court doesn’t say, probably because to say would get require explaining what it
would take for “designated as hate group” to be false (since misleadingness
ultimately depends on consumers reaching false, that is falsifiable/verifiable
and untrue, conclusions from non-facially false statements).  How could the implication of this truthful
statement about the designation be anything other than opinion?  The court might be suggesting that it’s not
impossible that some story could be told about this, but it would require a lot
more in the way of detailed allegations. 
I have to say it’s a bit weird to me that the same court that refused to
recognize a claim in the GNC case is
less decisive about hate groups.

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