USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 1 of 15
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`[PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 19-14125
`_______________________
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`D.C. Docket No. 2:17-cv-00566-MHT-SMD
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`versus
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`CORAL RIDGE MINISTRIES MEDIA, INC.,
`d.b.a.
`D. James Kennedy Ministries,
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`AMAZON.COM, INC.,
`SOUTHERN POVERTY LAW CENTER,
`INC.,
`AMAZONSMILE FOUNDATION,
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`AMAZONSMILE FOUNDATION, INC.,
`et al.,
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`
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`Plaintiff - Appellant,
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`Defendants - Appellees,
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` Defendants.
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`_______________________
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`Appeal from the United States District Court
`for the Middle District of Alabama
`________________________
`(July 28, 2021)
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`

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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 2 of 15
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`Before WILSON, GRANT, and TJOFLAT, Circuit Judges.
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`WILSON, Circuit Judge:
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`Coral Ridge Ministries Media (Coral Ridge), a Christian ministry and media
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`corporation, appeals the district court’s dismissal of its defamation claim against
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`the Southern Poverty Law Center (SPLC) and religious discrimination claim
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`against Amazon.com and the AmazonSmile Foundation (collectively, Amazon).
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`Because we find that the district court did not err in dismissing this suit, we affirm.
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`I.
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`Amazon.com is the largest internet-based retailer in the world.
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`AmazonSmile Foundation (AmazonSmile) is a tax-exempt corporation affiliated
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`with Amazon.com. The AmazonSmile website allows customers to buy products
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`as if they were using Amazon.com, but with every purchase Amazon will donate
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`0.5% of the price to an eligible charity selected by the customer. To be an eligible
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`charity for the AmazonSmile program, an organization must be registered and in
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`good standing with the Internal Revenue Service as a nonprofit organization under
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`26 U.S.C. § 501(c)(3); must agree to a Participation Agreement; and cannot
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`“engage in, support, encourage, or promote intolerance, hate, terrorism, violence,
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`money laundering, or other illegal activities.” In relation to the last requirement,
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`organizations that SPLC designates as hate groups are not eligible to participate in
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`the AmazonSmile program. SPLC is an Alabama-based nonprofit organization
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`2
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 3 of 15
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`that, among other things, publishes a “Hate Map”—a list of entities the
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`organization has characterized as hate groups—on its website.1 Coral Ridge
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`applied to be an eligible charity for the AmazonSmile program, but Amazon
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`denied its application because Coral Ridge is listed on the Hate Map as being anti-
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`LGBTQ.2
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`
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`Coral Ridge filed suit in the Middle District of Alabama, claiming, inter alia,
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`that (1) SPLC defamed Coral Ridge by listing it on the Hate Map, and (2) Amazon
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`violated Title II of the Civil Rights Act (Title II), 42 U.S.C. § 2000a et seq., by
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`discriminating against it based on religion.3 In its complaint, Coral Ridge
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`acknowledged that it opposes homosexual conduct, but denied that it is a hate
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`group. It rejected SPLC’s definition of hate group and instead said that the
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`commonly understood definition of the term was “groups that engage in violence
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`and crime.” 4 Coral Ridge asserted it did not fall within either this definition or
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`SPLC’s definition of the term. Additionally, Coral Ridge alleged that SPLC listed
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`1 According to Coral Ridge’s complaint, SPLC defines “hate groups” as organizations that have
`“beliefs or practices that attack or malign an entire class of people, typically for their immutable
`characteristics.”
`2 LGBTQ is an acronym referring to lesbian, gay, bisexual, transgender, and queer people.
`3 Coral Ridge also brought claims against SPLC under the Lanham Act, 15 U.S.C. § 1125. The
`district court dismissed these claims and Coral Ridge does not appeal that dismissal.
`Additionally, Coral Ridge brought a negligence claim against Amazon. It concedes that this
`claim hinges on its Title II claim. Because we affirm the district court’s dismissal of Coral
`Ridge’s Title II claim, we do not address this negligence claim on appeal.
`4 On appeal, Coral Ridge puts forward a different definition that combines the definitions for
`“hate” and “group.” Therefore, according to Coral Ridge a hate group is commonly understood
`as “a ‘group’ that ‘hates.’”
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`3
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 4 of 15
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`it on the Hate Map because of its religious beliefs about LGBTQ conduct.
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`Therefore, according to Coral Ridge, a court could infer that Amazon
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`discriminated against it by relying on the Hate Map. Both SPLC and Amazon
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`moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6).
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`In a thorough 141-page order, the district court dismissed the defamation
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`claim on First Amendment grounds and dismissed the Title II claim primarily
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`because it found that the AmazonSmile program was not covered by Title II in this
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`instance. Alternatively, it held that Coral Ridge’s interpretation of Title II created
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`First Amendment problems. Finally, the district court found that Coral Ridge did
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`not plausibly allege either intentional or disparate impact discrimination. It
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`therefore dismissed Coral Ridge’s suit in full.
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`II.
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`We review de novo a Rule 12(b)(6) dismissal for failure to state a claim
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`upon which relief may be granted. Michel v. NYP Holdings, Inc., 816 F.3d 686,
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`694 (11th Cir. 2016). We accept the factual allegations in the complaint as true
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`and construe them in the light most favorable to the plaintiff. Id. To survive a
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`motion to dismiss, a complaint must contain “enough facts to state a claim to relief
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`that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
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`544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is
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`4
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 5 of 15
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`liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`We need not, however, accept as true a complaint’s conclusory allegations or legal
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`conclusions. Id.
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`III.
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`Under Alabama law, a plaintiff establishes a prima facie defamation claim
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`when he or she demonstrates: “(1) that the defendant was at least negligent (2) in
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`publishing (3) a false and defamatory statement to another (4) concerning the
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`plaintiff, (5) which is either actionable without having to prove special harm . . . or
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`actionable upon allegations and proof of special harm.” Ex parte Bole, 103 So. 3d
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`40, 51 (Ala. 2012) (alterations accepted and emphasis omitted).
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`When applying state defamation law to public figures, the First Amendment
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`imposes additional limitations.5 First, the alleged defamatory statement must be
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`“sufficiently factual to be susceptible of being proved true or false.” Milkovich v.
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`Lorain J. Co., 497 U.S. 1, 21 (1990). Second, the statement must be actually false.
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`Id. at 16. And third, a public-figure plaintiff must prove that the defendant made
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`the alleged defamatory statement with “actual malice”—“with knowledge that it
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`was false or with reckless disregard of whether it was false or not.” N.Y. Times Co.
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`v. Sullivan, 376 U.S. 254, 279–80 (1964). This actual malice test is subjective; the
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`public-figure plaintiff must show that the defendant “in fact entertained serious
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`5 Coral Ridge concedes that it is a public figure for the purposes of this case.
`5
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`doubts as to the truth” of the statement. Berisha v. Lawson, 973 F.3d 1304, 1312
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`(11th Cir. 2020).
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`The district court dismissed Coral Ridge’s defamation claim on the grounds
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`that the term hate group has a “highly debatable and ambiguous meaning” and thus
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`is not provable as false. Alternatively, the court found that Coral Ridge did not
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`sufficiently plead that SPLC acted with actual malice.6 Because we agree that
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`Coral Ridge failed to adequately plead actual malice, we affirm the dismissal of
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`Coral Ridge’s defamation claim.7
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`Coral Ridge did not sufficiently plead facts that give rise to a reasonable
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`inference that SPLC “actually entertained serious doubts as to the veracity” of its
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`hate group definition and that definition’s application to Coral Ridge, or that SPLC
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`was “highly aware” that the definition and its application was “probably false.”
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`Michel, 816 F.3d at 702–03. For starters, we can disregard the portions of the
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`complaint where Coral Ridge alleged in a purely conclusory manner that the
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`defendants acted “with actual malice” in publishing the Hate Map. Allegations
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`6 Because the district court found that the term hate group was not provable as false, it also held
`that Coral Ridge did not plausibly allege that the defamatory statement was false.
`7 There is a fair debate about whether the term hate group is definable in such a way that it is
`provable as false. That debate is complicated in this case by the fact that SPLC put its own
`definition of the term on its website. In any event, our finding that Coral Ridge failed to
`adequately plead actual malice is sufficient to affirm the dismissal of the defamation claim.
`Therefore, we need not reach the district court’s alternative holding that the term hate group is
`not sufficiently factual as to be proven true or false.
`6
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 7 of 15
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`such as these amount to threadbare recitals of the elements of a cause of action,
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`which are insufficient to state a claim. Id.; see also Iqbal, 556 U.S. at 678.
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`Setting those allegations aside, Coral Ridge makes two basic contentions
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`regarding actual malice. First, it claims that SPLC’s definition of hate group is so
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`far removed from the commonly understood meaning of the term that its
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`designation of Coral Ridge as a hate group is “intentionally false and deceptive.”
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`This statement comes very close to being a conclusory assertion of the elements of
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`the cause of action. Michel, 816 F.3d at 703. In any event, Coral Ridge does not
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`plead any facts that would allow us to infer that SPLC doubted the veracity of its
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`own definition of the term. Moreover, the complaint states that SPLC publicly
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`disseminates its own definition of a hate group on its website; given that, it is hard
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`to see how SPLC’s use of the term would be misleading. Regardless of the
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`commonly understood meaning of hate group, and regardless of whether SPLC’s
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`definition is the same, the complaint did not present any factual allegations that
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`would allow us to infer that SPLC’s subjective state of mind was sufficiently
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`culpable. Berisha, 973 F.3d at 1312.
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`Second, Coral Ridge contends that SPLC acted “with reckless disregard for
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`the truth” in designating Coral Ridge a hate group, even under SPLC’s definition
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`of the term. But Coral Ridge pleaded no facts that would allow us to infer that
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`SPLC seriously doubted the accuracy of designating Coral Ridge a hate group.
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`7
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`The complaint states that Coral Ridge “has never attacked or maligned anyone on
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`the basis of engaging in homosexual conduct” and that “SPLC’s conduct, in and of
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`itself, would have created a high degree of awareness of the probable falsity of
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`SPLC’s declaration.”8 Although we must accept Coral Ridge’s allegations as true
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`at this stage, bare-bone allegations like these are insufficient to show that SPLC
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`doubted the truth of its designation. Michel, 816 F.3d at 703. Accordingly, the
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`district court was correct to dismiss Coral Ridge’s defamation claim on the ground
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`that Coral Ridge did not sufficiently plead actual malice, and we affirm as to this
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`issue.9
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`IV.
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`Next, we review whether the district court was correct in dismissing Coral
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`Ridge’s religious discrimination claim. In relevant part, Title II states: “All
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`persons shall be entitled to the full and equal enjoyment of the goods, services,
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`facilities, privileges, advantages, and accommodations of any place of public
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`8 Coral Ridge also pleaded that SPLC intended to harm its reputation by making the designation
`and that its aim is to “completely destroy” hate groups. But the actual malice standard is not
`about whether the speaker had evil intent or a motive arising from ill will; it is about whether the
`speaker subjectively doubts the truth of the publication. Masson v. New Yorker Mag., Inc., 501
`U.S. 496, 510–11 (1991). These allegations do not give rise to a reasonable inference that SPLC
`seriously doubted the accuracy of its designation. See Berisha, 973 F.3d at 1304.
`9 Coral Ridge also asks us, for the first time on appeal, to get rid of the actual malice
`requirement. But even if this argument were not waived, we could not grant the relief Coral
`Ridge seeks. See Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). A circuit court is not at
`liberty to decline to follow the decisions of the Supreme Court. United States v. Gibson, 434
`F.3d 1234, 1246 (11th Cir. 2006).
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`8
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`accommodation, as defined in this section, without discrimination or segregation
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`on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a(a).
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`The district court assumed without deciding that websites, like Amazon and
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`AmazonSmile, qualify as places of public accommodation under Title II. It
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`dismissed Coral Ridge’s Title II claim primarily because it found that the
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`AmazonSmile program did not qualify as a “service,” “privilege,” or “advantage”
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`under the statute. It held in the alternative that Coral Ridge’s claim failed on First
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`Amendment grounds. And last, it found that the claim had to be dismissed because
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`it did not adequately allege discrimination.
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`Coral Ridge challenges all of the district court’s findings. It alleges that
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`Amazon is liable under Title II because (1) Amazon is a “place of public
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`accommodation,” (2) the AmazonSmile program is a “privilege,” “service,” or
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`“advantage” of Amazon, and (3) Amazon excluded Coral Ridge from benefiting
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`from the AmazonSmile program because of Coral Ridge’s religious views. Coral
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`Ridge also contests the district court’s finding that its interpretation of Title II
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`“raise[s] serious First Amendment problems.” It says that the First Amendment
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`should not apply because it is ultimately the customers—not Amazon—who
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`donate and decide what charity to donate to. Therefore, it claims, if any First
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`Amendment rights are at issue here it would be the customers’—not Amazon’s.
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`9
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`We hold that the district court was correct in finding that Coral Ridge’s
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`interpretation of Title II would violate the First Amendment by essentially forcing
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`Amazon to donate to organizations it does not support.
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`As an initial matter, we disagree with Coral Ridge’s position that it is the
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`customers rather than Amazon who donate under the program. It is Amazon that is
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`forgoing a portion of its proceeds and donating to the charities. Coral Ridge
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`acknowledges as much in their complaint when it quotes the AmazonSmile
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`website, which states that the “AmazonSmile Foundation will donate 0.5% of the
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`price of eligible purchases to the charitable organizations selected by customers.”
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`Coral Ridge argues that still it is the customers who get to choose where to donate.
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`This is true in a sense, but ignores the fact that Amazon is the party actually paying
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`the charities. Thus the donation is Amazon’s—not the customers’. With that in
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`mind, we turn to Amazon’s right to free speech under the First Amendment.
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`The First Amendment provides that “Congress shall make no law . . .
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`abridging the freedom of speech.” U.S. Const. amend. I. “Constitutional
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`protection for freedom of speech does not end at the spoken or written word”; the
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`First Amendment also protects expressive conduct. Fort Lauderdale Food Not
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`Bombs v. City of Fort Lauderdale, 901 F.3d 1235, 1240 (11th Cir. 2018) (quotation
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`mark omitted). “[I]n determining whether conduct is expressive, we ask whether
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`the reasonable person would interpret it as some sort of message, not whether an
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`10
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 11 of 15
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`observer would necessarily infer a specific message.” Id. If we find that the
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`conduct in question is expressive, any law regulating that conduct is subject to the
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`First Amendment. See id.
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`The parties do not dispute that donating money qualifies as expressive
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`conduct. Indeed, it is “bedrock principle that, except perhaps in the rarest of
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`circumstances, no person in this country may be compelled to subsidize speech by
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`a third party that he or she does not wish to support.” Harris v. Quinn, 573 U.S.
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`616, 656 (2014). The question is how the facts of this case map onto that principle.
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`In setting out the criteria for the AmazonSmile program, Amazon expressly
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`states that it relies on SPLC to determine which charitable organizations are
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`eligible to participate. A reasonable person would interpret this as Amazon
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`conveying “some sort of message” about the organizations it wishes to support.
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`Fort Lauderdale Food Not Bombs, 901 F.3d at 1240; see also Hurley v. Irish-
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`American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995)
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`(“Since all speech inherently involves choices of what to say and what to leave
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`unsaid, one important manifestation of the principle of free speech is that one who
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`chooses to speak may also decide what not to say.” (citations and internal
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`quotation marks omitted)). Thus, we have no problem finding that Amazon
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`engages in expressive conduct when it decides which charities to support through
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`the AmazonSmile program.
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`11
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`Next, we must consider whether Coral Ridge’s proposed application of Title
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`II to the AmazonSmile program is permissible under the First Amendment. The
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`Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian & Bisexual
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`Group of Boston is instructive here. 515 U.S. 557. In Hurley, the Irish-American
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`Gay, Lesbian and Bisexual Group of Boston (GLIB) sued the South Boston Allied
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`War Veterans Council (the Council), an association that organized a St. Patrick’s
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`Day parade in Boston, when the Council denied GLIB’s application to have a unit
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`in the parade. Id. at 561. GLIB sued in state court under a Massachusetts law that
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`prohibited discrimination on the basis of sexual orientation “in the admission of
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`any person to, or treatment in any place of public accommodation.” Id. at 572
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`(internal quotation mark omitted). The Massachusetts Supreme Court agreed with
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`GLIB, finding that the Council violated the state law in denying its parade-unit
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`application. Id. at 563–64. In a unanimous decision, the United States Supreme
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`Court reversed. Id. at 581.
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`The Supreme Court stated that GLIB’s interpretation of the state public
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`accommodation law was “peculiar” in that individual members of GLIB were not
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`“claim[ing] to have been excluded from parading as a member of any group that
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`the Council has approved to march. Instead, the disagreement [went] to the
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`admission of GLIB as its own parade unit carrying its own banner.” Id. at 572.
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`The Court explained that while the state statute was generally constitutional and
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`12
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`acceptable, “the state courts’ application of the statute had the effect of declaring
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`the [Council’s] speech itself to be the public accommodation.” Id. at 573. That is,
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`the Council’s decision as to which organizations could have a unit in the parade
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`was expressive conduct protected by the First Amendment. Id. The Court further
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`reasoned that the lower court’s application of the law did not advance the law’s
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`purpose of preventing discrimination in access to public accommodations. Id. at
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`578 (“When the law is applied to expressive activity in the way it was done here,
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`its apparent object is simply to require speakers to modify the content of their
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`expression to whatever extent beneficiaries of the law choose to alter it with
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`messages of their own. But in the absence of some further, legitimate end, this
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`object is merely to allow exactly what the general rule of speaker’s autonomy
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`forbids.”). Because there was no other legitimate reason to apply the state statute
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`in this way, the Court reversed the Massachusetts Supreme Court’s decision on
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`First Amendment grounds. Id. at 579 (“The very idea that a noncommercial
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`speech restriction be used to produce thoughts and statements acceptable to some
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`groups or, indeed, all people, grates on the First Amendment, for it amounts to
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`nothing less than a proposal to limit speech in the service of orthodox
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`expression.”).
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`Hurley is analogous to this case in that Coral Ridge’s proposed interpretation
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`of Title II would violate the First Amendment. In the same way that the Council’s
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`13
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 14 of 15
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`choice of parade units was expressive conduct, so too is Amazon’s choice of what
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`charities are eligible to receive donations through AmazonSmile. Applying Title II
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`in the way Coral Ridge proposes would not further the statute’s purpose of
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`“secur[ing] for all citizens the full enjoyment of facilities described in the Act
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`which are open to the general public.” United States v. DeRosier, 473 F.2d 749,
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`751 (5th Cir. 1973).10 It would instead “modify the content of [Amazon’s]
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`expression”—and thus modify Amazon’s “speech itself”—by forcing it to donate
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`to an organization it does not wish to promote. See Hurley, 515 U.S. at 578, 573.11
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`This we cannot do. The law “is not free to interfere with speech for no better
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`10 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
`binding precedent all decisions of the former Fifth Circuit handed down prior to the close of
`business on September 30, 1981.
`11 The district court offered a helpful, concrete example demonstrating the negative implications
`of accepting Coral Ridge’s interpretation of Title II:
` By way of comparison, assume that a closely held fast-food
`restaurant chain, whose owners are Christian and object to
`homosexuality based on their religious beliefs, initiates a “charity
`match” program. Under the program, consumers who purchase a
`certain number of sandwiches may donate up to $5.00 to the charity
`of their choice, subject to certain restrictions, and the corporation
`will match the donation. According to Coral Ridge’s interpretation
`of Title II, the fast-food chain could be compelled—over their
`objection—to match donations to, for example, a church whose
`central mission
`is promoting
`the Christian acceptance of
`homosexuality; the Church of Satan; or any number of religious
`organizations whose purpose and activities run directly contrary to
`the business’s deeply held convictions. Even though the consumer
`initiated the transaction that would ultimately lead to the business
`donating money, it is still the business’s money being donated, and
`the business retains its say as to where it goes.
`Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 406 F. Supp. 3d 1258, 1303 (M.D. Ala.
`2019).
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`14
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`USCA11 Case: 19-14125 Date Filed: 07/28/2021 Page: 15 of 15
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`reason than promoting an approved message or discouraging a disfavored one,
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`however enlightened either purpose may strike the government.” Id. at 579.
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`
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`Therefore, because Coral Ridge’s proposed interpretation of Title II would
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`infringe on Amazon’s First Amendment right to engage in expressive conduct and
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`would not further Title II’s purpose, we affirm the district court’s dismissal of this
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`claim.12
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`V.
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`In sum, we find that Coral Ridge has not adequately alleged a state law
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`defamation claim and that its proposed interpretation of Title II would violate the
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`First Amendment. Accordingly, we affirm the district court’s dismissal of Coral
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`Ridge’s complaint.
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`AFFIRMED.
`
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`12 We have not determined if non-physical spaces, like websites, qualify as places of public
`accommodation under Title II. However, in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1277
`(11th Cir. 2021), we held that websites are not places of public accommodation under Title III of
`the Americans with Disabilities Act (ADA), 42 U.S.C. §12182. While we recognize that the
`relevant statutory language in the ADA is similar to that of Title II, we do not decide whether Gil
`is applicable here because we find Coral Ridge’s claim fails regardless on First Amendment
`grounds.
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`
`
`15
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`