No. 22-1124

DANA CHENG; EPOCH GROUP, INC., d/b/a Epoch Media Group,

Plaintiffs, Appellants,

v.

DAN NEUMANN; MAINE PEOPLE'S ALLIANCE, d/b/a Beacon,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Christopher J. Bakes, with whom Kip Joseph Adams, Bryan Paul Sugar, Lann G. McIntyre, and Lewis Brisbois Bisgaard & Smith LLP were on brief, for appellants. John-Mark Turner, with whom Christopher Cole, Sheehan, Phinney, Bass & Green, P.A., Tracy D. Hill, and Drummond Woodsum were on brief, for appellees. Carol J. Garvan, Zachary L. Heiden, Anahita Sotoohi, and Brian Hauss on brief for American Civil Liberties Union and American Civil Liberties Union of Maine, amici curiae.

October 25, 2022 LYNCH, Circuit Judge. Dana Cheng and Epoch Group sued Maine People's Alliance and Dan Neumann, its reporter, in the U.S. District Court for the District of Maine. The suit asserted that the defendants' coverage of a presentation given by Cheng on a panel at a Windham, Maine forum co-sponsored by the Maine Republican Party and the Christian Civic League was defamatory and constituted false light invasion of privacy and intentional and negligent infliction of emotional distress. The defendants moved to dismiss, asserting First Amendment and various state-law defenses. The district court granted the motion to dismiss in a thoughtful opinion. See Cheng v. Neumann, No. 21-cv-00181, 2022 WL 326785 (D. Me. Feb. 3, 2022). Because the plaintiffs have not plausibly alleged defamation under First Amendment principles, we affirm.

I.

We draw the facts from the plaintiffs' complaint, "documents attached to or fairly incorporated into the complaint," "facts susceptible to judicial notice," and "concessions in plaintiff[s'] response to the motion to dismiss." Lemelson v. Bloomberg L.P., 903 F.3d 19, 21 (1st Cir. 2018) (quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012)).

- 2 - Dana Cheng, a New York resident, is the vice president and co-founder of The Epoch Times, a print and online newspaper, also in New York.

Maine People's Alliance, a Maine non-profit corporation, publishes an online media outlet named Beacon. On June 16, 2021, Beacon published an article written by Dan Neumann titled "Maine GOP hosts speaker present at Jan. 6 Capitol assault" (the "Article"). The Article stated, in relevant part:

The Maine Republican Party co-sponsored a community forum in Windham on Monday evening that included as a panelist a far-right media personality and conspiracy theorist who has said she was among the supporters of former President Donald Trump who were present at the riot at the U.S. Capitol on Jan. 6.

. . .

Dana Cheng, vice-president of the right-wing multi-language newspaper and media company Epoch Times, was invited by the Gray Republicans to brief their members about the threats posed to Americans by the Chinese government.

. . .

The day after the insurrection that left five people dead, Cheng said on a Denver radio program that she was pres