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Devin Nunes Gets Small, Most Likely Temporary, Victory Against MSNBC, While Also Suing CNN Again

from the you-don't-need-to-sue-them-all,-devin dept

You might have seen some headlines recently suggesting that former congressional representative and current flailing social media CEO (and serial suer of the media) Devin Nunes had some sort of legal victory over Rachel Maddow and MSNBC. And he did get a very, very small victory while piling up more losses at the same time. Law & Crime (which consistently does excellent work) had a much more accurate headline noting that the court actually dismissed all but one claim in his lawsuit. And you could actually go beyond that. There were three separate statements that were claimed to be defamatory, and two were dismissed outright, and the third actually consisted of three separate factual claims, two of which were also dismissed. So it was basically just one-third of one claim that survived.

And, even that oversells the victory, because the court basically let the case move forward because the one remaining statement of fact wasn’t backed up by a source, even though MSNBC has one. But, the problem was that MSNBC didn’t cite that source in Maddow’s report. And, at this stage of the case, MSNBC can’t bring in additional evidence like that. So, the case moves forward on one tiny part where Maddow/MSNBC could potentially still prevail on a failure to show actual malice. And, even if actual malice was shown, Nunes would still have to show damages caused by this one statement, and, uh, how is he gonna do that? He still got his CEO gig.

Meanwhile, a week and a half earlier, Nunes also sued CNN (again) and Jake Tapper. Remember, Nunes just recently lost another lawsuit against CNN, over a different defamation claim. But apparently he and his lawyer, Steven Biss, believe in a “if at first you don’t succeed, try, try again” strategy. The lawsuit is pretty ridiculous, but we’ll get there.

First, let’s go over the ruling in the MSNBC case. I highly recommend reading the ruling, which is well written, and much more clearly (and concisely!) explained than many other rulings we see. I’ll quote directly from it summarizing the key events at issue:

On December 11, 2019, a package was delivered to the House Permanent Select Committee on Intelligence (“Intelligence Committee” or the “Committee”), of which Nunes was Ranking Member. (2nd Am. Compl’t ¶ 13.) It was addressed to Nunes from Andriy Derkach and was handled solely by Nunes’ staff and delivered, unopened, to the offices of the FBI. (Id.) That same day, Nunes sent a letter to Attorney General William P. Barr advising him of the receipt of the package. (Id.)

On July 29, 2020, the Intelligence Committee held an open business meeting. (Id. at n.5.) During this meeting, Representative Sean Maloney asked Nunes two questions. (Id.) First, Maloney asked if Nunes had received materials from Derkach. (Id.) Second, Maloney asked if, in the event that Nunes had received materials, whether he was prepared to share them with the Committee. (Id.) When asked if he wished to respond to the questions, Nunes declined

In early 2021, the National Intelligence Council then declassified a report that included some of these details, specifically around the packages being sent to Nunes and others. Maddow’s report, in somewhat typical overstated fashion, covered this and made some statements about Nunes:

In the March 18, 2021 broadcast of The Rachel Maddow Show, host Rachel Maddow discussed the declassified DNI Report as part of a longer segment about Derkach, Russian disinformation and election interference.1 (Id.) Maddow referred to the report and discussed the package addressed to Nunes, as well as the interaction between Nunes and Maloney at the Intelligence Committee meeting. (Id.) Maddow said that Nunes had accepted a package from Derkach and refused to answer questions about the package. (Id. ¶ 2.) Maddow also said that Nunes refused to hand the package to the FBI. (Id.)

Now, you’ll probably immediately spot the problem. From all reports, Nunes’s staff did immediately hand over the package to the FBI (and Nunes separately alerted to the Attorney General to it). So, that does seem like a false statement of fact, which could (in theory) be defamatory.

Of course, this is a Nunes/Biss production, so they overclaimed other stuff that they also said was defamatory:

The Complaint alleges that three statements from a segment of the March 18, 2021 episode of The Rachel Maddow Show are false and defamatory. (2d Am. Compl’t ¶ 2.) The statements are as follows:

Statement One: “Andriy Derkach is sanctioned by the U.S. government as a Russian agent. He is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”

Statement Two: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”

Statement Three: “Still, the Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee. How does that stand? How does that stay a thing?”

So, right. Statement one is substantially true. Nunes tried to argue that it wasn’t accurate to say he “accepted” the package, but the judge isn’t having it.

In the Complaint, Nunes confirms that the package was both addressed to him and received by his staff members. (2d Am. Compl’t ¶ 13.) His staff member delivered the package to the FBI. (Id.) And Nunes personally wrote to the Attorney General to advise him of the receipt of the package. (Id.) The statement that Nunes “accepted” a package from Derkach compared with the actual truth as stated in Nunes’s complaint would not have a different effect on the mind of a viewer. Therefore, Statement One is privileged against a defamation claim because, based on the Complaint’s own allegations, it is substantially true.

Statement three is not defamatory. I mean, what even is the false statement of fact in there?

Statement Three cannot be classified as actionable statements of fact or actionable mixed opinion. When weighing the factors, the specific language does not have a precise meaning, is not capable of being proved or disproved, and when considering the context, the average viewer would not reasonably believe the statements to be based on undisclosed facts. See id. at 105. Considering the immediate context of the questions, of political commentary on a political program, such statements and rhetorical questions would not be viewed by a reasonable person as expressing or implying facts about the plaintiff. The Court therefore concludes that Statement Three is privileged as pure opinion and not actionable.

That leaves statement two which the court breaks down into the three separate claims, find that two of them are also substantially true.

The first asserted fact, that Nunes “has refused to answer questions about what he received from Andriy Derkach,” is not actionable as defamation because it is substantially true. As described in the Complaint itself, during the House Intelligence Committee meeting of July 29, 2020, Nunes “stated that he did not wish to respond” to Maloney’s questions both because a response “risked disclosing classified information” and because the questions were a “completely out-of-order, coordinated stunt.” (2d Am. Compl’t ¶ 13 n.5.) A comparison between the complained-of language and the truth as described in Nunes’s complaint would not have a different effect in the mind of a reasonable viewer. To the extent that Nunes asserts defamation based on the statement that he “has refused to answer questions about what he received from Andriy Derkach,” the claim will be dismissed

And, while Nunes argues that claiming he wouldn’t share the contents with the “intelligence community” is false because it was referencing the House Intelligence Committee, which is technically not the intelligence “community” (but rather its overseer), this slight misstatement by Maddow certainly doesn’t rise to the level of defamation:

The Court concludes that a reasonable viewer encountering the statement would not understand the technical distinction between the government entities that formally comprise the intelligence committee and the Intelligence Committee that is tasked with supervising those entities. The speaker also asserted that Nunes “refused to show the contents of the package to other members of the intelligence community.” (2d Am Compl’t ¶ 2; emphasis added.) A reasonable viewer would understand the speaker to be asserting that Nunes himself is personally a “member” of the intelligence community and that the “other members” included his Congressional colleagues. This description is consistent with the events of the Intelligence Committee proceeding. And while the Intelligence Committee is not technically part of the intelligence community, it performs a formal oversight role, and minor inaccuracies are “not serious enough to remove a party’s reportage from the protection of Civil Rights Law §74.” Misek-Falkoff, 300 A.D.2d at 216

So, that’s a lot of dismissed supposedly defamatory statements. All that leaves is the statement about not handing over the info to the FBI. Which, again, is false. But for it to be defamatory against a public figure, Nunes has to show actual malice, which (I will explain yet again) does not just mean that Maddow/MSNBC “dislike” Nunes, but rather they knew that the info was false, or had strong evidence suggesting it was false. This is a high bar, and frankly, I have trouble believing that Nunes clears it. He claims that Maddow/MSNBC knew it was false because there had been a Breitbart report that quoted another congressional representative claiming that Nunes had in fact turned it over to the FBI.

But that supposes that Maddow was familiar with the specifics of the Breitbart report (which is buried in the 18th paragraph). Seems difficult to argue that Maddow had knowledge of falsity based on that, but the court says, at this stage of the game it’s enough to move to the next stage and not dismiss the claim.

MSNBC argued that Maddow’s report was based on a Politico story that quotes an anonymous source saying that the package had not been handed over to the FBI. Notably, that Breitbart article is actually mostly about Republicans claiming that the Politico article in question was the result of a potentially illegal leak from the Democrats about this classified meeting. But, as the court notes, because Maddow didn’t specifically cite the Politico report, it can’t be used, at this stage, to argue against actual malice:

This Politico article is not cited or referenced in the Complaint, nor is it cited or referenced in the segment. Because the article goes beyond the pleadings and the materials integral thereto, it is not properly considered on a motion to dismiss. Goel, 820 F.3d at 559. On this bare record, the Court declines to convert the motion to one for summary judgment.

And, remember, the key difference between the motion to dismiss stage and the summary judgment stage is that with an MSJ, evidence can be submitted. So, this “victory” may not last long at all.

But, this should be a reminder to all journalists: when making statement of fact claims, cite your sources. Turns out it can be the difference between winning a motion to dismiss and a (much more costly) motion for summary judgment.

Anyway, now let’s move on to the Tapper/CNN suit. It’s… strange. It’s about a segment Tapper did about the attack on Paul Pelosi, and the Republicans’ response to the attack, which sometimes included spreading baseless conspiracy theories about it. Incredibly, the complaint lists five statements that it claims are defamatory, and ONLY ONE even mentions Nunes:

1 “He [referring to President Donald Trump], at least, did condemn the attack on Paul Pelosi, as did House Republican Leader Kevin McCarthy, as did Senate Minority Leader Mitch McConnell”

2 “But you know what, far too many other Republicans and Conservative leaders are out there instead spreading insane, offensive and false conspiracy theories, such as the complete and utter lie, the deranged smear that Paul Pelosi and the attacker, the man who hit him in the head with a hammer, were in a sexual relationship”

3 “It’s hard to fathom the kind of mind that hears of a tragedy, like what happened to 82 year-old Paul Pelosi, and decides to traffic in this filth. But, sadly, Donald Trump Jr. is hardly alone. Former Republican Congressman and Chairman of the House Intelligence Committee, Devin Nunes, who now runs Trump’s social media company, Truth Social, shared this Halloween image [link to truth] with the words, ‘at least this guy has his clothes on.’ Nunes also reposted this meme [link to retruth], using a poster for the gay romantic comedy Bros, twisting it into a smear of Paul Pelosi. And, again, the man who tried to bash Paul Pelosi’s head in with a hammer. Words fail.”

4 “What is wrong with these people?”

5 “In addition to being an inhuman and inhumane response to a tragedy, it’s a lie … Pelosi did not know the suspect.”

I mean, point one: I’m impressed at the sheer chutzpah of arguing “what is wrong with these people” is somehow a defamatory statement of fact about Devin Nunes. I mean, Biss’ lawsuits often have these nutty claims of how clear statements of opinion are defamatory, but this one is really up there on the list of most egregious.

And, even the one statement that does mention Nunes, only includes a statement about what Nunes shared on Truth Social. As far as I can tell, Nunes does not deny sharing the material Tapper claims he shared. Instead, Nunes argues that the episode “as a whole” subjected him to ridicule through “juxtaposition and omission of material facts,” but uh, dude, you still need to highlight actual false statements of fact, and the complaint does not get there.

Honestly, this complaint is so bad that it seems like the kind of thing that could lead to sanctions.

Meanwhile, it remains ironic that Nunes leads a social media site that claims to be all about “free speech” while he repeatedly sues critics and commentators for their free speech.

Filed Under: actual malice, defamation, devin nunes, jake tapper, rachel maddow, steven biss
Companies: cnn, msnbc

Multiple New Studies Again Suggest The Internet Is Not Creating An ‘Infodemic’; Cable News, On The Other Hand…

from the but-of-course dept

Early on in the pandemic, the World Health Organization warned that the world was facing an “infodemic,” a mass outbreak of false and misleading information. While the WHO did not coin the term, it certainly made it popular, and contributed to the idea that it was the internet that was the leading cause of this infodemic. Today, it seems set in stone that the internet is the main vector for the spread of false information, and this is leading to all sorts of regulatory pushes by people all around the globe who think that the internet is to blame for all the bad stuff that is happening.

However, as we’ve noted over the years, the data… rarely seems to back up these claims. In 2019, we wrote about the book, Network Propaganda, written by Yochai Benkler, Robert Faris, and Hal Roberts, which presents a ton of evidence that lies about the 2016 election would go viral not because of the internet, but because of Fox News pushing them. In 2020 (pre-election), they released some follow-up research concerning disinformation about mail-in ballots and again found that the spread of misinformation was “elite-driven, mass-media led” and that social media “played only a secondary role.”

But maybe you question their methodology (though, you should read the details, because it’s pretty comprehensive and thorough). Nirit Weiss-Blatt points us to an article by journalists-turned-academics Nick Mathews and Mark Coddington, highlighting a bundle of recent research that again suggests little evidence of an online “infodemic,” but at least some evidence of Fox News being the real main venue for spreading disinformation.

They point to a few different studies, with the first one showing that most people actually turned to trustworthy sources of news during the pandemic, rather than less trustworthy sources.

We find that in 2020 online news consumption increased. Trustworthy news outlets benefited the most from the increase in web traffic. In the UK trustworthy news outlets also benefited the most from the increase in Facebook engagement, but in other countries both trustworthy and untrustworthy news outlets benefited from the increase in Facebook engagement. Overall, untrustworthy news outlets captured 2.3% of web traffic and 14.0% of Facebook engagement, while news outlets regularly publishing false content accounted for 1.4% of web traffic and 6.8% of Facebook engagement. People largely turned to trustworthy news outlets during the 2020 coronavirus pandemic.

Next up was a study that involved surveying 14,000 people exploring whether or not the pandemic drove people into their own echo chambers. Again, we’ve highlighted other research in the past that suggests the internet actually decreases echo chambers, rather than increases them. Here, this new research more or less confirms the same thing regarding COVID info. The research looked at whether or not people focused on “like-minded” information (echo chambers) or explored more “cross cutting” (diverse) sources of information, and it showed a strong indication of cross-cutting information — though that was even stronger where citizens were most concerned about COVID and where governments were screwing up. In other words, when the government is incompetent, people inherently know it’s not healthy to stick in information bubbles.

A widely believed claim is that citizens tend to selectively expose themselves to like-minded information. However, when individuals find the information useful, they are more likely to consume cross-cutting sources. While crises such as terror attacks and pandemics can enhance the utility of cross-cutting information, empirical evidence on the role of real-world external threats in selective exposure is scarce. This paper examines the COVID-19 pandemic as a case study to test the extent to which citizens were exposed to information from cross-cutting sources on traditional and social media after the outbreak. Utilizing a two-wave panel survey among 14,218 participants across 17 countries – conducted before and after the initial outbreak – we show that citizens concerned about COVID-19 were more exposed to cross-cutting information on traditional and social media. The positive relationship with cross-cutting exposure to traditional news was stronger in countries where governments adopted less stringent policy responses, and in countries with greater pandemic severity and weaker democratic institutions. Our comparative approach thus sheds light on the social and political contexts in which cross-cutting exposure can occur.

I don’t think we should look at that as a ringing endorsement of incompetent governments, but it is still an interesting all around finding.

The final study looks at how one’s media consumption habits impacted their views on COVID mitigation strategies. Here they found that (after controlling for a bunch of factors), cable TV seemed to contribute the most to shaping one’s views, not the internet.

This research assesses how the environment for coronavirus disease (COVID) information contributed to the public’s willingness to support measures intended to mitigate the spread and transmission of the virus in the early stages of the pandemic. A representative sample of 600 Floridians was surveyed in April 2020. After controlling for sociodemographic factors, COVID anxiety, and knowledge about the virus, we find that components of the information environment mattered for public opinion related to mitigation policies. Television news sources, including local and national network news, center-left cable news (i.e., CNN, MSNBC), and Fox News, contributed to shaping policy support. The results highlight the importance of televised news coverage in shaping public opinion toward healthcare-related policies.

As Coddington and Mathews note, with the controls for partisanship, this study shows that this is not just correlation between conservatives pre-disposed to one view all watching Fox News, and liberals pre-disposed to the opposite view watching MSNBC. Instead, it strongly suggests that cable news contributes to their views:

The control for partisanship is a key factor here. It indicates that the influence of Fox News is not simply a product of conservatives being more likely to oppose mitigation and also more likely to watch Fox News. It suggests, instead, that the cable channels (and network TV news) may have had an influence apart from simple partisan audience self-selection. On the flip side, neither Facebook nor government communication (e.g., press conferences by Donald Trump and other elected officials) were significantly associated with views on mitigation.

So, now the studies seem to be coming fast and furious suggesting that cable news has much more of an impact on our views than the internet. And yet, I can bet that we’re just going to keep hearing about how everything is the fault of the internet. Of course, it seems worth noting that it’s often the very same mainstream media, either cable news itself, or publications owned by the same companies who own cable news… pushing these “infodemic” stories. It’s almost as if they have a reason to attack the internet, while ignoring their own culpability.

Filed Under: cable news, disinformation, infodemic, internet, misinformation, propaganda, social media
Companies: facebook, fox news, meta, msnbc

Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit

from the opinion,-facts-still-protected-speech-because-duh dept

One America News (OAN) — a “news” network apparently more “fair and balanced” than the extremely right-leaning Fox News — sued MSNBC commentator Rachel Maddow for (factually) insinuating one of OAN’s reporters had a side gig working for the Russian government. The OAN reporter, Kristian Rouz, also worked for Sputnik, the government-controlled Russian news outlet.

This report by Maddow came with the usual Maddow commentary, which included (protected!) opinions and the statement that Rouz was “literally paid Russian propaganda.” This referred to Rouz’s Sputnik work and cast serious shade on OAN’s decision to bring the reporter on board with its network. A defamation lawsuit followed. And OAN lost.

The district court said the assertions were based on fact and everything else was protected opinion. The court signed off on MSNBC’s anti-SLAPP motion, handing it a win. And with a the anti-SLAPP win came some fee-shifting, which led to OAN being ordered to pay more than $250,000 in legal fees.

OAN appealed. And it has lost again. The Ninth Circuit Court of Appeals says the lower court was right about everything. The Appeals Court [PDF] says California’s anti-SLAPP law can be applied here, seeing as it closely aligns with federal options for dismissals and motions to strike. Having determined that, it makes quick work of OAN’s appeal.

It is undisputed that Maddow’s challenged speech was an act in furtherance of her right to free speech. Therefore, the first step of the anti-SLAPP analysis is satisfied.

Undisputed.

And yet, OAN wants to dispute. Too bad, says the Ninth Circuit. There’s no defamation here, something OAN seemingly conceded in its original complaint.

We agree with the district court’s conclusion that the broad context of Maddow’s show makes it more likely that her audiences will “expect her to use subjective language that comports with her political opinions.” Herring Networks, 445 F. Supp. 3d at 1050. It seems Herring agrees with this conclusion as well: Herring’s complaint characterizes Maddow as “a liberal television host,” and MSNBC’s cable programming as “liberal politics.” Although MSNBC produces news, Maddow’s show in particular is more than just stating the news—Maddow “is invited and encouraged to share her opinions with her viewers.” Id. at 1049. In turn, Maddow’s audience anticipates her effort “to persuade others to [her] position[] by use of epithets, fiery rhetoric or hyperbole.” Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980) (citation omitted). Therefore, the medium through which the contested statement was made supports Maddow’s argument that a reasonable viewer would not conclude the statement implies an assertion of fact.

It’s all opinion, as OAN noted in its own complaint. And yet, it sued, claiming this opinionated host was slinging facts. The disputed facts can’t even be disputed because the OAN reporter actually worked for a Russian government-funded news agency. That Maddow was undeniably pleased to be reporting and commenting on OAN’s self-inflicted PR black eye makes no difference. If anything, it adds to Maddow’s defense.

Maddow’s gleeful astonishment with The Daily Beast’s breaking news is apparent throughout the entire segment. Thus, at no point would a reasonable viewer understand Maddow to be breaking new news. The story of a Kremlin staffer on OAN’s payroll is the only objective fact Maddow shares.

And the court hands down this implicit reminder: when commenting on people likely to be litigious, show your work:

Maddow’s dialogue before and after the contested statement is solely a reiteration of the material in The Daily Beast article. At no point before the contested statement does Maddow “imply the existence of additional, undisclosed facts.” Instead, Maddow reports the undisputed facts and then transitions into providing “colorfully expressed” commentary.

Finally, the Ninth Circuit says even the procedural things OAN wanted to argue about (again) are mainly the network’s own fault.

The district court did not abuse its discretion in dismissing the complaint without leave to amend because Herring never asked to amend, and if it had, amendment would have been futile. Moreover, contrary to Herring’s briefing, the district court’s rejection of Herring’s evidence, given the applicable Rule 12(b)(6) analysis, is not inconsistent with its conclusion that such evidence would not make a difference. Evidence can be both improperly proffered and unhelpful.

And that ends this case unless OAN thinks the Supreme Court is going to be more receptive to its arguments. Those arguments are, basically, opinion OAN doesn’t like shouldn’t be protected speech, and people shouldn’t be allowed to report on undisputed facts that make OAN look bad. Hardly the sort of thing that’s likely to upset Supreme Court precedent and long-held First Amendment protections for both opinions and factual statements.

Filed Under: 1st amendment, anti-slapp, california, defamation, free speech, kristian rouz, opinion, rachel maddow
Companies: msnbc, oan, sputnik

Devin Nunes' Deposition Goes Off The Rails, As He Keeps Suing (And Actually Gets A Minor Victory In One Suit)

from the omnibus-post dept

It’s getting difficult to keep up with all of the many lawsuits involving Devin Nunes and his family against the media — and that statement alone should raise your eyebrows quite high. As someone who has sworn to protect the Constitution (which includes the 1st Amendment), Nunes seems very interested in using the judicial system repeatedly to intimidate and silence critical reporting from the press. This post will cover three separate lawsuits (out of a much longer list of lawsuits) in which things happened this month. First off, he’s filed yet another lawsuit, this time against NBC Universal over claims that Rachel Maddow made defamatory remarks about him. He’s suing in Texas, which seems like an odd choice for many reasons. After all, he’s a Congressional Representative from California. NBC is based in New York. Many of his previous lawsuits have been in Virginia. Honestly, the complaint makes the most half-hearted attempt to explain why Texas is the proper venue, stating “MSNBC is at home in Texas.” What does that even mean? MSNBC is based in New York.

Oh, and the other oddity in choosing Texas? Texas actually has a semi-decent anti-SLAPP law.

That said, there are elements of the MSNBC case that may actually be more challenging for MSNBC. The lawsuit is over statements by Rachel Maddow that may have been false, regarding questions about what Nunes did with a package sent by an accused Russian agent. Nunes claims he followed the proper protocols for the handling of such a package, alerting the DOJ and handing it over the the FBI. Maddow accused him of not doing that. Still, to be defamatory, Nunes will have to show that Maddow knew what she was saying was false or had very strong reasons to believe they were false. In the complaint, Nunes’s lawyer, Steven Biss, points to some Breitbart articles as proof, which… does not show that Maddow knew them to be false. However, I will note, that of all the many wacky Biss/Nunes lawsuits, this one actually reads marginally stronger than all the others. That’s progress, I guess.

Separately, Nunes and Biss actually had a minor victory in another lawsuit — one filed in November last year against the Washington Post (not the first time Nunes has sued the Washington Post). This lawsuit argued that two marginally incorrect statements were defamatory, which seemed ridiculous. The judge, however, has taken a very broad reading of the article, and finds that there are possible readings that are defamatory, and at least a plausible argument of actual malice in the fact that the underlying mistake in the article — regarding Nunes’ position regarding claims of the Obama administration surveilling Donald Trump during the 2016 campaign — had been covered accurately in the Washington Post at an earlier date. And thus, there’s enough in here to consider actual malice:

In the article at issue here, the Post reported that Nunes made that baseless claim himself. A newspaper?s own prior (and correct) reporting that is inconsistent with its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth of its later publication?just as a source?s pre-publication recantation may be evidence that a publisher had reason to doubt the source?s original claims….

The Post urges the Court to conclude that its November 9, 2020 article merely misattributed the baseless claims to Nunes (rather than to President Trump) and was therefore a ?simple misstatement of the Post?s prior reporting.?… That may very well be true. But at this stage in the proceedings, where the Court is limited to the allegations in the Amended Complaint and the reasonable inferences that can be drawn from them, the Court cannot determine what in fact led to the incorrect statements in the article.

The judge refuses to dismiss the defamation claims, and will allow the case to move forward. This does not mean that Nunes is likely to win, but it will be costly for the Washington Post. They will have to go through discovery, and then can argue there’s no actual malice with additional evidence later (at which point they have a higher likelihood of succeeding). Nunes’ supporters have been cheering this on, and acting like some great evils will be outed through discovery, which… is generally not how this works.

However, that does take us to the final story, which is truly ridiculous. In the long-running saga involving Nunes’ family’s farm’s defamation lawsuit against Hearst publications, Esquire, and reporter Ryan Lizza, something truly bizarre happened last week. We had discussed how the case seemed to go off the rails earlier this summer as the two sides fought over depositions.

And it went even more off the rails last week at a deposition involving Nunes himself. Remember, Nunes’ own lawsuit over the article was dismissed, but a tiny, tiny part of his family’s suit lives on. However, Nunes was deposed last week, and according to a filing from Steven Biss on Friday, it did not go well. Biss claims that the lawyer for Hearst interfered with the deposition saying that lawyer “unceremoniously interrupted, threatened and stopped” the Nunes deposition.

Biss claims that this was “obstruction” as well as “unethical” and finally claims (somewhat laughably) that “it violates every tenet of the Federal Rules of Civil Procedure and the First Amendment.” It’s rather rich for Biss — who regularly makes a mockery of the 1st Amendment via his defamation lawsuits — to argue that a rather understandable objection to attempts to expose protected information “makes a mockery of the 1st Amendment.”

Biss helpfully includes the relevant transcript of the deposition which… does not appear to make Biss/Nunes look good. Indeed, it seems to show how Hearst’s lawyer was doing exactly the right thing.

At issue is that the reporter, Ryan Lizza, turned over some of his reporting notes and recordings as part of the discovery process, but those items were put under a protective order, saying that it is for the attorney’s eyes (and ears) only. This makes sense. Reporters need to be able to protect their sources, and turning them over in a lawsuit should include a protective order to stop them from being viewed or listened to by opposing parties… or those who aren’t even parties in the case. Again, in this case, Nunes’ himself is not a party to the suit, but is being deposed as “a witness.” It seems fairly evident that he should not be able to see Lizza’s notes nor hear his reporting recordings. Yet, that’s exactly what Biss attempted to do in the deposition. Hearst’s lawyer, Jonathan Donnellan immediately objected.

BY MR. BISS:

Q. Counsel asked you during the deposition whether you had ever listened to the audiotapes that Mr. Lizza produced. I think you said no. I want to play two of those audiotapes for you and get your response —

MR. DONNELLAN: Hold on, Steve, I’ll object to that. That goes beyond the scope of my examination. I did not ask the Congressman today about any matters that were covered by the protective order in this case, and he did not testify as to the substance of any matters covered by the protective order in this case, and I want it to stay that way.

So that’s beyond the scope of the examination, so I object to any attempt to introduce to him or to expose him to any of the evidence that’s covered by the protective order.

From there, things get pretty crazy, with a lot of it just being performative nonsense. Biss insists that he should be able to play the recordings, and Donnellan correctly points out that you can’t undo that once it’s done, and he believes it violates the protective order. And then, Nunes just starts butting in and (incorrectly) insisting that Biss can ask him anything. Anything labeled “THE WITNESS” is Nunes:

THE WITNESS: Aren’t I the one being deposed, doesn’t my lawyer have a right to ask me questions? You get to end it without my lawyer having time to ask me questions, is that how this works?

MR. DONNELLAN: It’s beyond the scope of the examination and its evidence that you’re not entitled to hear, Congressman.

MR. BISS: Why isn’t he entitled to hear it?

MR. DONNELLAN: It’s governed by the protective order.

And then… it just gets more and more ridiculous. Nunes then started to build up a head of steam. Biss claims that just because Donellan asked if Nunes had heard the recordings (which Nunes said he did not), that now means that Biss can play Nunes the recordings (which, again, are under a protective order). Nunes seems to think he’s entitled to it all, and he has some, uh, very interesting ideas about what rights he has to information in these situations:

THE WITNESS: You also asked me about some documents, and I said no, I’d like to see them. So, I have that on my testimony to you, that I would like to see them. If they exist, what you’re asking me, I have every right to see them. If not, there needs to be transparency in this process. Because if you’re hiding something from me, like you hid my response of my subpoena, that’s completely outrageous. You can’t do that.

MR. DONNELLAN: Steven, if you look at–

THE WITNESS: You have to show me. You brought it up. If they exist, I get to see them. You don’t get to ask me questions about things that you know and I don’t. You did it once, you got caught, now you’re doing it again. So, now I find out there are audiotapes and there’s — are there documents? What kind of documents have I not see for this — for this —

There’s some back and forth between Biss and Donnellan regarding the protective order, and then suddenly Nunes jumps in to — I kid you not — “object.” Then he claims that he’s going to go to the judge directly himself. That’s not how any of this works, but okay.

THE WITNESS: Wait, I object to that. I have a right, this is my deposition. I totally object to that. They definitely — I do have a reason to know. You’ve stat on this deposition going through conspiracy theory after conspiracy theory after conspiracy theory, whether it’s who’s paying lawsuits, or frivolous ethics violations, and then you do that bogus little game on me where you show me a subpoena and then play some game like I haven’t complied, and now I find out that you had it sitting next to you there as one of the exhibits.

You asked me if I had seen some type of documents. I said no, but I’d like to see them, if I want to see Lizza’s notes or something like that. If there’s notes you’re damn right I want to see them. And it’s wrong, it’s not transparent, it’s totally corrupt, and I’m going to the judge. I want to go to the judge myself. And I’m not ending this deposition. I want Steve to continue to ask me questions.

MR. BISS: You asked him a question —

(Speaking simultaneously)

THE WITNESS: Who do the hell do you think you are?

The sheer entitlement oozing out of Nunes in that exchange is quite eye opening, isn’t it? And while he claims it’s a conspiracy theory about who is funding all of these lawsuits, as far as I can tell there still hasn’t been any public explanation, and there was a request from a watchdog group for the Congressional Ethics Office to investigate if it’s being done legitimately.

Biss then starts grandstanding, claiming that Donnellan is trying to hide the audiotapes from becoming public as if that’s some conspiracy, rather than a key part of journalism. Not revealing journalist sources is not about secrecy. It’s how you have effective journalists who can actually find out things that those in power would like to remain secret. Forcing a journalist to reveal their sources is not about transparency and accountability — it’s the opposite. It acts as an intimidation system to silence whistleblowers.

It goes back and forth this way over and over again, with Donnellan pointing out repeatedly that if Biss’ actual concern is about Lizza’s audiotapes being made public, the proper place to do that is before the judge to remove the protective order and unseal them — not to just randomly play them to Rep. Nunes. There are so many back and forths on this it’s not worth it to cover them all, but here’s a sample that certainly suggests this is much more about getting a narrative out into the public about there being some sort of “hidden” information by Lizza and Hearst that “they just won’t tell you,” rather than doing what’s right here.

MR. BISS: This witness has a right to know what’s on those audiotapes, just like the public does.

MR. DONNELLAN: No, he does not.

MR. BISS: The public has a right —

MR. DONNELLAN: It is subject to a court order —

(Speaking simultaneously)

MR. DONNELLAN: It’s subject to a court order and it should be taken up with the court.

MR. BISS: Jon, what I find most astounding is, you represent a member of the press, and here we have a classic example, maybe another classic example of the press trying to keep the truth from the people, and including this witness, trying to keep the truth from this witness. And he’s entitled to know what’s on the audiotapes and to respond to what’s on the audiotapes, as part of his testimony in this case, including on the question of damages, on the question of —

MR. DONNELLAN: This witness is not even a party to this case —

MR. BISS: He’s a witness.

MR. DONNELLAN: — Steve.

MR. BISS: He’s a witness. He’s a witness and —

MR. DONNELLAN: He has not entitlement under this order to have access to these materials. If you would like to have a discussion offline about lifting the protective order so that all materials subject to the protective order are disclosed, let’s have that discussion.

But for right now, we have a protective order, it’s in place, it’s signed by the judge, and if you were to play this tape right now it would be a violation of that order.

At that point, Biss brings out his proverbial fainting couch.

MR. BISS: Well, I can tell you this, I am– I’m shocked by this response. I’m shocked by it, but I’m not surprised. And I’m not going to put myself or my clients, or the witness, in the position of violating a federal court order. I’m not going to give you the satisfaction of preparing a motion for sanctions, but I will tell you this:

We are definitely, definitely going to the judge on this, and we’re going to seek attorney’s fees and costs for you tying up this deposition.

It goes on in this way for a while, with Biss repeatedly mischaracterizing the point Donnellan is making, and even accusing him of threatening Biss.

And, of course, that gets Nunes himself worked up into a frenzy as well:

THE WITNESS: So, just so I’m clear, so now, Steve, you don’t get to ask me any questions, and anything that he asked of me, he gets to decide whether or not it’s relevant or not. So, I’m being treated differently than all the other people that got deposed, which is totally ridiculous and wrong.

And I don’t know what the hell you guys at Hearst are trying to cover up, but you asked me about audiotapes, you asked me about notes, you asked me about documents, so I get a right to see those documents and hear those tapes, that I now know exist. And if not, you’re keeping them from me, a witness, who you’ve made a witness. And you’re the one that called me for a deposition, not Steve.

You asked me 90 percent of questions that are not relevant at all to this case, that are completely just fishing, things that you want to try to push out to all your fake news people. And now you’re threatening my lawyer with me on the line. You threatened me a couple times with going to the judge. And then you said I didn’t answer your questions and you’re going to the judge, so you’re full of threats.

But I know this much, those tapes need to get out. If you continue to hide them, I don’t know what my legal remedies are, but as far as I’m concerned, this deposition is not complete because of your illegal cover up and activity here, that continues to cover up your lies for the sex predator that you sent out to harass my family.

And now there’s actual tapes that exist of this? I’ve never heard of them. So, why do I not get to hear them? I don’t know what the court’s going to say about this, but this seems totally unfair, that my lawyer doesn’t get to ask me any questions. This is absurd. I don’t know what game you think this is, but maybe you should send ICE out to Hearst Winery and Hearst ranch or something. What a joke.

Almost everything Nunes says above is either wrong or misleading, though the most concerning seems to be him — the former head of the House Intel Committee, and current ranking member of it — appearing to potentially suggest that he can send ICE out Hearst properties. But as for the rest, the nature of the deposition is that the lawyer who called it does get to ask questions, but that doesn’t mean that the lawyer for the other side (who is also the lawyer for the witness) gets to reveal stuff that is under a protective order.

There’s more back and forth, and Donnellan says to wrap things up and tells Biss to take it all up with the judge, leaving Biss to trot out this inane statement:

MR. DONNELLAN: No, no, no, no, if you can get off your soapbox right now, I think we have said what we have to say for the record, let’s close the deposition, we can take it up with the court, and anything that you want to say to the court in terms of playing attorneys’ eyes only material that was not covered by this deposition, you can make those arguments to the court.

MR. BISS: Hey, Jon, so much for the First Amendment.

I am unaware of any reading of the 1st Amendment that requires the exposure of content that was put under a protective order by a judge to a witness in a case, but perhaps I’m missing something. I’m also unaware of any reading of the 1st Amendment that requires a deposition to continue, but again, I may have missed the proper precedent. Unfortunately, Biss doesn’t do much in the way of citing one in his motions to the court. The only citations are to broad statements in cases regarding how the litigation process is “a search for truth.” And while that may be true, that does not speak to the practice of revealing the content of something under a protective order.

Finally, rather than type it out like I typed out all of the above quotes, I’ll just screenshot how the deposition closes, because it’s just the perfect closing. I want John Oliver to get people to re-enact this deposition.

The judge has already seemed somewhat annoyed about how this case is going, so it will be interesting to see how he responds to all of this…

Filed Under: depositions, devin nunes, jonathan donnellan, protection order, rachel maddow, reporter's notes, ryan lizza, steven biss
Companies: esquire, msnbc, nbc, washington post

from the careful-with-those-baseless-claims,-OAN dept

Last summer, California’s anti-SLAPP law gave MSNBC host Rachel Maddow an early exit from a bogus defamation lawsuit brought by one of the few “news” outlets that’s farther to the right than Fox News, One America News.

OAN claimed it had been defamed when Maddow referred to one of its hosts as a “Kremlin-paid journalist.” This comment referred to OAN “reporter” Kristian Rouz’s concurrent employment as a Sputnik “journalist.” Sputnik is owned by the Russian government and tends to produce exactly the sort of reporting you’d expect from such an arrangement.

As the court noted during its dismissal of the suit, Maddow’s position at MSNBC is one of a commentator — someone expected to give their opinion on world events. Thus, the stuff OAN was arguing (badly) was defamatory was actually protected opinion. And it was informed opinion that had basis in fact: Rouz did work for Sputnik and did produce propaganda on the Russian government’s behalf.

Now, OAN owes MSNBC and Maddow some money. Losing a defamation suit via an anti-SLAPP motion means the victorious party can ask for legal fees. As Mary Papenfuss reports for Huffington Post, OAN’s parent company (Herring Networks) has been ordered to write a very big check.

A federal judge in California has ordered the parent company of far-right One America News Network to pay Rachel Maddow and MSNBC $250,000 in lawyers’ fees for a failed defamation lawsuit.

Of course, the check isn’t as good as written quite yet.

Herring Networks President Charles Herring told the website Law & Crime in a statement that the company will appeal the costs.

No doubt Herring hopes to recoup the losses it inflicted on itself by engaging in this BS lawsuit. But it seems unlikely the Ninth Circuit Appeals Court will find in favor of the failed plaintiffs. This was a spectacular loss by OAN and its parent company. The lower court shut the door on any rewrites by OAN, setting the stage for this court-ordered opening of OAN’s wallet.

Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.

The court’s order [PDF] discusses all the procedural stuff — including OAN’s multiple arguments in favor of lower costs — before settling on a total:

The Court awards Defendants fees in the amount of 247,667.50representing53.5hoursbilledbyMr.Boutrousat247,667.50 representing 53.5 hours billed by Mr. Boutrous at 247,667.50representing53.5hoursbilledbyMr.Boutrousat1,150 per hour, 19.1 hours billed by Mr. Edelman at 1,050perhour,130.6hoursbilledbyMr.Bachat1,050 per hour, 130.6 hours billed by Mr. Bach at 1,050perhour,130.6hoursbilledbyMr.Bachat720 per hour, 127.9 hours billed by Ms. Moshell at 470perhour,15.8hoursbilledbyMr.Rubinat470 per hour, 15.8 hours billed by Mr. Rubin at 470perhour,15.8hoursbilledbyMr.Rubinat470 per hour, 14.9 hours billed by Ms. Gadberry at 280perhour,and1.3hoursbilledbyMr.Amponsahat280 per hour, and 1.3 hours billed by Mr. Amponsah at 280perhour,and1.3hoursbilledbyMr.Amponsahat265 per hour, and costs in the amount of $10,724.36.

The real lesson being taught here is how expensive it is to defend yourself from a bogus defamation lawsuit. Even in a state with a solid anti-SLAPP law, it still costs hundreds of thousands of dollars to get a lawsuit dismissed. States without anti-SLAPP laws subject defendants to additional rounds of litigation, all of which increase the cost of defending against even the most ridiculous allegations.

That being said, strong anti-SLAPP laws are a great deterrent. Would-be plaintiffs tend to be a bit more cautious when there’s a chance they’ll be paying everyone’s legal bills, rather than just their own.

Filed Under: anti-slapp, attorney's fees, california, rachel maddow, slapp
Companies: msnbc, oann

California Anti-SLAPP Law Gives Rachel Maddow An Early Exit From Conservative News Network's Bogus Libel Lawsuit

The only news network further to the right than Fox News has just seen its baseless libel lawsuit against MSNBC host Rachel Maddow dismissed under California’s anti-SLAPP law. While Fox occasionally has to acknowledge the real world and employs a few newscasters critical of the President and his policies, One American News Network (OAN/OANN) apparently feels no compunction to address any issues honestly, preferring to curl up in the lap of the leader of the free world.

OAN sued after Maddow offered her commentary on a Daily Beast article that said the news network employed a “Kremlin-paid journalist.” The journalist, Kristian Rouz, had been working for both OAN and the Kremlin-owned Sputnik, the latter of which was determined to be a participant in Russia’s 2016 election interference effort.

Maddow’s commentary was somewhat hyperbolic, and very critical of OAN and its double-agent journalist. But OAN took particular issue with a single phrase Maddow said during her broadcast. From the decision [PDF]:

Maddow states, “there is a lot of news today, but among the giblets the news gods dropped off their plates for us to eat off the floor today, is the actual news that this super right-wing news outlet that the President has repeatedly endorsed . . . we literally learned today that that outlet the President is promoting shares staff with the Kremlin. I mean, what?” She laughs and soon after says, “in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda. Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” (emphasis added). The underlined portion of the sentence highlights where Plaintiff takes issue.

MSNBC filed an anti-SLAPP motion to strike the suit, pointing out OAN’s effort was just an attempt to stifle Constitutionally protected speech. Anti-SLAPP laws allow for fee-shifting, which makes it riskier for plaintiffs to pursue bogus lawsuits. But it also shifts some of the burden of proof to the defendants, who must show the targeted speech is actually protected.

First, the court points out that Maddow’s MSNBC segment isn’t the straightforward readings of newsworthy happenings. It is very much slanted towards opinion, which Maddow offers liberally (in both senses of the word). Since viewers know what to expect from Maddow, it’s unlikely they would take all of her commentary to be factual assertions.

_Maddow does not keep her political views a secret, and therefore, audiences could expect her to use subjective language that comports with her political opinions. Thus, Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news. Therefore, the Court finds that the medium of the alleged defamatory statement makes it more likely that a reasonable viewer would not conclude that the contested statement implies an assertion of objective fac_t.

There’s also the context in which her statements were delivered, which includes her demeanor during the broadcast.

The “general tenor” of Maddow’s segment is a report on the Daily Beast article, and Maddow’s tone could be described as surprise and glee at the unexpectedness of the story. She begins by calling the story the “single most like sparkly story” in what had been “a more ridiculous than most day in the news.” She calls the news one among “the giblets the news gods dropped off their plates for us to eat off the floor today.” Maddow reports that OAN shares staff with the Kremlin and discusses the allegedly defamatory Russia connection, then follows this by saying (while laughing), “I mean, what?” She concludes the segment by saying, with a shake of the head, “I mean, this is the kind of news we are supposed to take in stride these days. And we do our best.”

As the court sees it, Maddow’s piece accurately described the contents of the Daily Beast article, interspersed with her colorful interjections. Most of her coverage of OAN’s Sputnik-employed journalist was “opinion and exaggeration.” This includes the single sentence OAN sued over.

The court also points out the word “literally” no longer holds a single meaning, so relying on this word doesn’t move OAN any closer to establishing its defamation claim.

Although Maddow used the word “literally,” this does not necessarily mean the phrase should be taken to be factual. Nowadays, as evidenced by the two conflicting definitions of the word “literally,” use of the word can be hyperbolic.

Even if “literally” were to be taken literally, it still wouldn’t help OAN. The facts relayed by Maddow in her piece are indisputable. By that I mean OAN doesn’t even dispute them. And as for Maddow’s connection of OAN to Russian propaganda efforts, this was supported by her clarification and evidence from an outside source.

There is no dispute that Maddow discussed this article on her segment and accurately presented the article’s information. Indeed, the facts in the title of her segment are not alleged to be defamatory: “Staffer on Trump-favored network is on propaganda Kremlin payroll.” Plaintiff agrees that President Trump has praised OAN, and Rouz, a staffer for OAN, writes articles for Sputnik News which is affiliated with the Russian government. (See Compl. ¶ 24.) Rouz is paid for his work by Sputnik News. (Id. ¶ 26.) Maddow provided these facts in her segment before making the allegedly defamatory statement.

[…]

Further, in the sentence immediately following the contested sentence that OAN is “literally paid Russia propaganda,” Maddow said, almost as a clarification, that OAN’s “on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” And, at the time Maddow made the allegedly defamatory statement, the screen was showing the Daily Beast article accompanied by the text: “One of the on-air reporters at the 24-hour network is a Russian national on the payroll of the Kremlin’s official propaganda outlet, Sputnik.” Thus, Maddow immediately qualified the allegedly defamatory statement with a factual clarification and viewers were seeing accurate information regarding OAN on the screen while listening to Maddow.

That ends OAN’s lawsuit. And the court will not give OAN another chance to engage in this dumbassery again.

Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.

With that, OAN is now on the hook for Maddow’s legal fees, thanks to California’s anti-SLAPP law. It’s that simple. And it should be that way everywhere, which would head off the libel tourism we see on display in a handful of states. Giving defendants an early exit keeps them from being bled to death, and plaintiffs, who’ve had to pay their opponents’ legal fees, will be less likely to use the federal court system vindictively to silence critics.

Filed Under: 1st amendment, anti-slapp, california, defamation, free speech, kristian rouz, rachel maddow
Companies: msnbc, oann

Steven Biss Loses Another Wacky SLAPP Suit; Judge Scolds, But Does Not Sanction, Him

from the slappity-slapp-slapp dept

Steven Biss has lost again. A week after losing one of his many, many lawsuits representing Congressman Devin Nunes, and also facing possible sanctions in another case, a judge has dismissed yet another one of his SLAPP suits. Once again, as is often the case with Biss, the lawsuit was nonsense, included aspects that were much more performative than legally sound, and was somehow tied to various conspiracy theories and right wing wackiness. As we highlighted last week, it’s noteworthy how many of Biss’s clients seem to have connections to one another, and this case is no different.

This case was filed last year by a Russian-born academic, Svetlana Lokhova, suing Cambridge academic Stefan Halper and a variety of media properties and journalists, including the New York Times, the Washington Post, the Wall Street Journal, and MSNBC. At issue were effectively follow ups on a flurry of stories in early 2017 (that date becomes important in a moment), soon after Michael Flynn was forced to resign as Donald Trump’s first National Security Advisor, under a cloud of suspicion on a variety of fronts. A variety of media organizations reported that US intelligence officials “had concerns” about Flynn and some possible connections to Russia, including a dinner he had with a group of people at Cambridge, which included (among others) Lokhova. Lokhova seems to blame Halper for these stories — and thus sued him and some of the media outlets that reported them.

The stories all focused on Flynn, and specifically the concerns of US intelligence agencies about Flynn. Some of them, such as the NY Times story from 2018, don’t even name Lukhova, and only obliquely refer to someone who might be her. This is also true of a 2018 Washington Post story that describes Lukhova in reference to Flynn, but also fails to even name her. And yet, in 2019, Lokhova sued for defamation — using Biss as her lawyer.

What’s notable here is that just a month before the lawsuit was filed, Rep. Devin Nunes (that guy?!?) referenced Lukhova in a Fox News interview right after the Mueller Report came out, and Nunes suggested that he wanted to investigate if there was someone who “set up” misleading evidence in order to create the Mueller investigation. This was part of Nunes’ ongoing efforts to build up a bizarre conspiracy theory regarding the Mueller Report — to the point that he’s saying Mueller’s team should face criminal charges and that he’s planning to make “some type of criminal referral.” Nunes seemed to argue that whoever “accused” Flynn of “having some type of Russian fling” needs to be investigated:

“The first is involved with Gen. Flynn,” Nunes said. “Gen. Flynn was supposedly entrapped, was meeting with a Russian woman. I want to know what really happened there because we are just now finding out about this and we need a lot more information on what really was general Flynn doing. It’s a big deal if somebody within our intelligence agencies were accusing a three star general of having some type of Russian fling. It’s serious stuff. I want to get to the bottom of that.”

Either way, in April he mentions her, and then a month later she’s represented by the same lawyer representing him and a variety of other loosely connected political operatives who all seem to be pushing similar conspiracy theories. Quite a coincidence!

Anyway, as you probably know, defamation law has a statute of limitations that varies by state. In Virginia, like many states, the statute of limitations is one year. Most of the articles and statements being sued over came way before that. This is something that a good lawyer should have known about. Biss tried to argue that because people have been tweeting links to those older articles, it resets the clock. That, of course, is not how any of this works. In defamation cases, there’s something called the single publication rule, which means that you date the statute of limitations to when the statements were first made, leading the judge to easily toss out the claims on most of the articles. Other attempts to reset the statute of limitations also fail, including a claim that because a more recent NY Times article links back to the earlier one, that counts as “republication.” As the court notes, if the new article was actually referencing her, she might have an argument, but it isn’t.

Although this argument might be meritorious in other contexts, it fails here. The New York Times’ April 9, 2019 article, titled “Justice Dept. Watchdog’s Review of Russia Inquiry Is Nearly Done, Barr Says,” does not mention or concern Lokhova; instead it focuses on the Inspector General’s investigation “into aspects of the Russia inquiry, including whether law enforcement officials abused their powers in surveilling a former Trump campaign aide.” See Am. Compl. ,r 5 (linking to https://www.nytimes.com/2019/04/09/us/politics/russiainvestigation- barr.html). The article’s discussion of Halper includes a sentence containing a hyperlink to the May 18, 2018 article. Id. The underlined portion of the following sentence contains the hyperlink: “Mr. Halper’s contacts have prompted Republicans and the president to incorrectly accuse the F .B.I. of spying on the campaign.” Id. This statement does not substantively alter or add to the portion of the May 18, 2018 article that allegedly defamed Lokhova. “[U]nder traditional principles of republication, a mere reference to an article, regardless how favorable it is as long as it does not restate the defamatory material, does not republish the material.” In re Philadelphia Newspapers, LLC, 690 F.3d at 175. This is because “[ w ]bile [ a reference] may call the existence of the article to the attention of a new audience, it does not present the defamatory contents of the article to the audience.” Salyer v. Southern Poverty Law Center, Inc., 701 F.Supp.2d 912, 916 (W.D. Ky. 2009) (emphasis in original). Under this persuasive case law, the New York Times’ 2019 article does not retrigger the statute of limitations for the May 18, 2018 article.

Biss, laughingly, tries to argue that because other people have linked to those older articles, that resets the liability for those beyond-the-statute-of-limitations pieces. The court is not buying it.

This argument is similarly unpersuasive. Lokhova has not cited any case holding that a media organization is liable in perpetuity for third-party tweets of its allegedly defamatory materials. Indeed, Lokhova’s argument is inconsistent with persuasive case law from other courts, which “have concluded that statements posted to a generally accessible website are not republished by” “a third party’s posting the statement elsewhere on the internet.”

There’s a lot more, but systematically the court explains over and over again why Biss’s legal arguments are wrong.

There are two publications that do fall within the statute of limitations, though. One by the Washington Post (mentioned above, which does not even name Lokhova) and a tweet by MSNBC’s Malcolm Nance. For what it’s worth, earlier in the opinion, the court pointed out that Nance was added as a defendant only with a later amended complaint, and it appears that no effort was ever made to serve him with the lawsuit. Indeed, the court throws out the claims regarding Nance on this basis alone:

Although Nance was added as a defendant in the Amended Complaint on August 29, 2019, plaintiff has made no effort to serve him with that complaint. Plaintiffs failure to serve Nance was raised at the October 25, 2019 hearing, which placed Lokhova and her counsel on clear notice that service was required. As such, in addition to the substantive reasons discussed in this Memorandum Opinion, the complaint against Nance will also be dismissed because by not making any effort to serve Nance, plaintiff has apparently abandoned her claim against him.

As for the Washington Post article, the court points out just how ridiculous those claims are, in part because the only direct statements that Biss/Lokhova claim are defamatory are… not.

The complaint identifies only two statements in the entire 2,262-word Post article (Attachment B) that are allegedly false and defamatory of Lokhova: (I) that Halper “attended” the February 2014 dinner, and (2) that “Halper and Dearlove were disconcerted by the attention the then- DIA chief showed to a Russian-born graduate student who regularly attended the seminars, according to people familiar with the episode.”… Even assuming the first statement to be false, the statement does not defame anyone, and clearly is not “of and concerning” Lokhova; it relates to Halper alone. The second statement does not name Lokhova and simply includes a generic reference to a “Russian-born graduate student who regularly attended the seminars.” Even assuming that the statement is “of and concerning” Lokhova and is false, it does not defame her. At most, the second statement suggests there were concerns about Flynn’s behavior towards Lokhova, without stating or implying that Lokhova herself did anything improper. The same conclusion applies when the two statements are considered together, and in the context of the other statements in the article as a whole, particularly because the sentence immediately following the second quote provides a clear disclaimer of any wrongdoing: “the student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred.”… In short, there is nothing in this article that defames the plaintiff.

Various other claims are easily tossed out as well for this reason or that. Throughout the ruling, though, you can steadily see Judge Leonie Brikema’s frustration with Biss’s legal strategy. Early on, in a footnote, the judge points out that Biss’s complaint has the appearance of being filed for political reasons, rather than legitimate jurispredential concerns:

Although Flynn is not a party to this action, the complaint frequently mentions him. Indeed, some portions of the complaint do not focus on Lokhova, but instead discuss Flynn, Halper, President Donald J. Trump, and others. For example, one paragraph of the complaint states that during a BBC radio program in May 2017, “Halper misrepresented that ‘people are deeply concerned about the erratic nature of this White House.”‘… Such unnecessary and irrelevant statements suggest that political motives, more than legitimate jurisprudential concerns, drive this litigation.

Later on, another footnote calls out another attempt by Biss to try to claim possibly defamatory statements within the statute of limitations, and notes that one of them happened after the complaint was filed, which is not how any of this works. It further notes that a mere phone call between Lokhova and a journalist isn’t “publishing” for purposes of defamation. In other words, this is just bad lawyering all around.

… the complaint alleges that on an unspecified date, Halper told a chief reporter with the Sunday Times of London that Lokhova was a Russian spy… The placement of this allegation within the complaint’s chronology suggests Lokhova is alleging that this statement occurred in December 2016, which would make it time-barred. The complaint then alleges that on December 19, 2019, the reporter “called Lokhova and repeated the false allegation.” This allegation is obviously erroneous, because December 19, 2019 had not yet occurred when the complaint was filed. Even if this phone call took place within the statute of limitations, it would not constitute defamation, because the complaint does not allege that the call involved anyone besides the reporter and Lokhova.

The judge also notes that Biss — as he has done in other cases — uses the kind of language not commonly found in legal complaints. Halper asked for sanctions against Biss, and while the court declines to issue such sanctions, the judge clearly looks skeptically upon Biss’s actions:

The record is clear that Biss filed an excessively long complaint and amended complaint on Lokhova’s behalf directing unprofessional ad hominem attacks at Halper and others. For example, the complaint calls Halper a ”ratf***er,”… and refers to the media defendants as “stooges,” … Such language adds nothing but unnecessary heat to this litigation. Moreover, the complaint exaggerates the nature and content of the allegedly defamatory statements. In addition, Biss and Lokhova had to have known that most of her claims were time-barred, as she had previously filed an unrelated defamation lawsuit in the United Kingdom, which was dismissed as untimely under the one-year statute of limitations applicable in that jurisdiction.

It’s not that surprising that the court has refused to issue sanctions. Very few judges will, and it generally takes very extreme behavior — and most judges are willing to give lawyers the benefit of the doubt for a very long time. But the judge here at least notes that she’ll be paying attention to future actions in this case, should they occur:

Although the Court does not condone the tactics employed by Biss and Lokhova in this action, their conduct is not sufficient to warrant the draconian measure of imposing sanctions at this time. The allegations of improper behavior by Biss are undoubtedly more severe than those by Lokhova, and should Biss file further inappropriate pleadings or pursue frivolous post-judgment litigation against any of these defendants, sanctions might well be justified.

For what it’s worth, Lokhova has already announced that she will be “appealing the decision on many grounds.” That won’t work. Considering that almost all of the case was thrown out for being outside the statute of limitations, there’s not much chance of anything happening on that front. Not surprisingly, on Twitter, various Lokhova supporters are already concocting fanciful conspiracy theories about the deep state and the “leftist judge” so this nonsense isn’t over yet.

At least Biss didn’t use this case to subpoena Twitter for the identity of the satirical @DevinCow account.

Filed Under: 1st amendment, defamation, devin nunes, free speech, malcolm nance, michael flynn, statute of limitations, stefan halper, steven biss, svetlana lokhova
Companies: msnbc, ny times, washington post

Comcast-Owned MSNBC Blasted For 8 Minute 'News' Love Letter to Comcast

from the fluff-and-nonsense dept

Wed, Apr 25th 2018 10:42am - Karl Bode

Comcast-owned MSNBC this week took a bit of a beating for an eight-minute “news” segment that was effectively little more than a sappy love letter to their parent company. The segment featured top Comcast lobbyist David Cohen, who years ago began calling himself the company’s “Chief Diversity Officer” to tap dance around federal lobbying rules (Comcast yells at us whenever we point that out). The program, aired during the company’s Morning Joe program, waxed poetic about Comcast’s altruism, at one point using Al Sharpton to compare Comcast?s corporate volunteerism with Nelson Mandela?s lifetime of civil rights work:

Comcast property MSNBC having its nominally independent analysts and hosts doing a cultish Comcast commercial was bad enough but Al Sharpton claiming Comcast was carrying on the work of Nelson Mandela was uh something else https://t.co/KrE5X5BsN4 pic.twitter.com/FLI3f116vs

— Adam H. Johnson (@adamjohnsonNYC) April 22, 2018

Several news outlets were quick to point out this glorified Comcast ad also saw prominent air time from numerous other Comcast-owned media properties, once again highlighting the perils of mindless media consolidation:

“But MSNBC wasn?t alone in covering Comcast Cares Day. NBC affiliates across the nation ?pitched in.? NBC Bay Area, for example, ran a PR?sounding segment that was a lot like all of the other ones. So did NBC 5 in Fort Worth, TX, NBC 10 in Philadelphia, NBC 4 in Los Angeles, NBC 5 in Chicago, and NBC Connecticut, to name a few. Other media outlets joined in, including ABC?s WTXL in Tallahassee, FL, The Denver Post, and The Tennessean, among others.”

Those of us that track Comcast for a living have been highlighting Cohen and Comcast’s disingenuous behavior on this front for several years now. While Comcast volunteer programs certainly can and do help people in some limited capacities, Cohen has perfected the act of using Comcast’s minority and low-income advocacy as a grotesque lobbying weapon to perpetuate policies that actively harm the communities Comcast professes to be helping.

For example, Comcast routinely pays some less ethical minority advocacy groups to parrot policies that actively harm their constituents, whether that’s supporting the death of net neutrality, the company’s latest megamerger, or the elimination of privacy protections for consumers. And Jesse Jackson has been used on occasion to actively oppose things like more cable box competition. This cozy quid pro quo is never put explicitly in writing, letting Cohen and friends become breathlessly indignant when reporters point out the disingenuous, cash-compromised nature of these relationships.

It’s a schtick larger media outlets are comically (perhaps intentionally) oblivious to, but one that has been immeasurably successful for Comcast and Cohen.

Cohen played the starring role in selling regulators on Comcast’s acquisition of NBC Universal in 2011, crafting conditions it would later be discovered Comcast ignored at its leisure. Cohen’s secret weapon during that transaction was Internet Essentials, a program that promised low-income households $10, 5 Mbps broadband for a limited time should they jump through a laundry list of conditions. The program was frequently criticized for being intentionally hard to qualify for, though it provided Cohen an endless sea of photo opportunities to help portray Comcast as a bottomless well of pure altruism.

Cohen’s minority and low-income advocacy schtick was so effective, he ultimately nabbed the title of “Chief Diversity Officer” to help further advertise his selfless altruism. Of course that title also conveniently lets Cohen tap dance around flimsy federal lobbying rules, which require an employee register as a lobbyist if they spend more than 20% of their time lobbying for a single client during any three-month span. And again, when you point this out, I’ve found that Comcast tends to get really upset with you.

The reality is that Comcast would need to do a hell of a lot more volunteering and donating to counter the obvious harm most of the company’s terrible policies have on the country. It’s indisputable that the company’s attacks on net neutrality and privacy protections will drive up costs and harm diverse media outlets and smaller businesses. Comcast’s support of protectionist state laws also routinely undermine efforts to bring competition to under-served broadband markets, driving up costs for everybody in the internet ecosystem (but especially the downtrodden parts of the country Comcast professes to adore).

This is a company that has proven time and time again that it doesn’t have your best interests at heart. But thanks to American M&A mania and our collective obliviousness to disinformation, the pretense that Comcast is a Robin-Hood-esque champion of the poor and downtrodden has proven immeasurably successful and profitable for what’s arguably the least liked company in America.

Filed Under: al sharpton, altruism, corporate media, david cohen, lobbying, msnbc, nbc
Companies: comcast, msnbc, nbc

According To MSNBC, If Online Voters Support Ron Paul, Their Votes Count Less

from the msnbc:-bad-at-math dept

First thing’s first: let’s face up to the fact that online polls (especially on political issues) are pretty close to meaningless. However, Jamey Fletcher points us to a rather amazing graphical mess perpetrated by MSNBC in response to Ron Paul supporters flooding the vote for its online poll concerning who won the recent dog & pony show debate among a bunch of Republican presidential wannabes. Here’s the screenshot he took, and the live poll certainly looks similar to me right now as well (though, at last check, Paul has an even larger percentage of the vote):

Now, as Jon Stewart has pointed out, the mainstream press loves to ignore Ron Paul. But math is math. 50% is not just a nudge above 17%… and yet that’s what the graphic appears to show. In fact, on Jamey’s screen the top two bars are 368 pixels and 244 pixels. That’s a very different ratio than 50% to 17%.

Filed Under: graphs, journalism, ron paul
Companies: comcast, msnbc, nbc

Big Media Companies Buying Local News Startups… Newspapers Bitch About Competition

from the what's-going-on-here dept

As the discussions over newspaper business models have continued, I keep hearing from newspaper people that they “do local news better” and that local news will be what saves them. Yet, at the same time, we keep hearing about new local news startups that appear to do a much better job of it… and the best of those startups keep getting bought by big media companies. The latest is that MSNBC has purchased EveryBlock, a cool local news player that did a really nice job bringing together a variety of sources. While it may not have gotten as big as expected, and it’s unclear whether MSNBC will end up killing it (the history of startups going to big media companies usually doesn’t have a happy ending), it makes you wonder why no newspapers thought of buying it. The things that EveryBlock has done — like linking local stories to feeds from Flickr, blog posts, and other online sources — seems like exactly the sort of useful community building that a newspaper should be doing. Yet, I can’t recall any actually doing that themselves… and now they let one of the startups enabling it get bought by someone else. In fact, I’d bet that EveryBlock is potentially one of these evil “aggregators” the newspapers keep complaining about as being “unfair.” You can keep complaining, or you can do something. MSNBC appears to have done something, while the newspapers keep complaining.

Filed Under: big media, local news, newspapers
Companies: everyblock, msnbc