The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From McCafferty v. Newsweek Media Group, Ltd., decided yesterday by the Third Circuit, written by Judge Stephanos Bibas and joined by Judges Thomas Ambro and Cheryl Krause (DISCLOSURE: I filed an amicus brief supporting Newsweek, on behalf of the Reporters Committee for Freedom of the Press and the Pennsylvania Center for the First Amendment, and with the help of UCLA School of Law student Brenna Scully):
Political discourse can be bruising. People often express opinions that offend others. But the First Amendment protects virtually all of those opinions, even offensive and hurtful ones, to promote a greater good: robust political discourse. The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric.
C.M. is a politically vocal boy. He claims that a Newsweek article tarred him, at age twelve, by accusing him of "defending raw racism and sexual abuse." But the article contained derogatory opinions based only on disclosed facts, which are not enough to show defamation or false light. Even if they could, C.M. does not plead facts showing actual malice, which the First Amendment requires of those who step into the political spotlight. So the District Court dismissed his claims, finding that no reasonable reader would think the article defamed him. We agree and will affirm….
During the 2016 presidential campaign, C.M. got a lot of attention. Before he had even turned twelve, he had publicly endorsed now-President Donald Trump and released videos seen by thousands. In one popular clip, C.M. called Hillary Clinton "deplorable." That video went viral, attracting more than 325,000 views on Facebook alone. From Russian television stations to Philadelphia magazine, many wanted to hear from "Philly's Biggest Trump Supporter."
C.M. obliged. In an interview with Philadelphia magazine, he said: "Madonna needs to leave the country. That would help make America great again. She's trash. She said she wanted to blow up the White House." After being asked why his Facebook posts use "the same kind of vitriol" that C.M. had said "is tearing this country apart," he explained: "Look, it's just a joke. They're calling Donald Trump a psychopath. They say he's mentally unfit. They're demonizing the Republican Party. They're saying most Republicans are racist. The people I talk about in these posts really have it coming to them."
Newsweek noticed his popularity too. At the start of 2018, the magazine published an article titled "Trump's Mini-Mes." The article's subtitle described a girl named M.M.: "The alt-right deployed a 12-year-old Trump supporter to interview [Alabama Republican nominee] Roy Moore on the eve of the special Senate election. She's not the only kid in this weird little army[.]" The top of the article featured a large photo of C.M. holding up a Trump campaign sign. And the fourth column displayed a photo of M.M. The caption next to C.M.'s picture read: "JUST KIDDING[:] Both [C.M.], left, and [M.M.], seen here with prime-time Fox News host Laura Ingraham, have gone viral with videos in which they tout all things Trump." Here are the first two paragraphs in full:
"Watch [M.M.] or [C.M.], both of them 12, ex-pound about their love of President Donald Trump and the platforms and candidates he endorses (most recently, [M.M.] deployed to Alabama for a cute-if-it-weren't-so-contextually-creepy interview with Senate candidate Roy Moore), and you'll notice that they both speak like Trump. And like him, they seem very comfortable in front of the cameras. Here's [M.M.] on Trump in a 2017 video interview with Jennifer Lawrence, vice president of the America First Project, a populist-nationalist super PAC: 'One of the other reasons I like him is because, and this is my favorite reason: 'We will build a waaaallll [sic] on our southern borders. And Mexico, no buts about it, Mexico will paaaay [sic] for the wall.' ' Or [C.M.], to Infowars's Alex Jones, last October: 'By the way, I saw your interview with Megyn Kelly; you got her good. You got her good. She thought she was going to make a fool of you, but you turned it around, and you proved her to be a liar.'
"Both instances demonstrate how Trump supporters are recruiting children as spokespeople. Jones, once he got done digressing to his 12-year-old guest about Kelly's hotness, hailed [C.M.] as part of the new wave of resistance to the 'globalists'—a term the Anti-Defamation League considers an anti-Semitic dog whistle. 'These kids are being weaponized,' says Todd Gitlin, professor of journalism and sociology at Columbia University. He says the [M.M.] and [C.M.] interviews 'camouflage' positions of the hard right 'as feel-good sweetness and light, when, in fact, they are defending raw racism and sexual abuse.'"
These were the only passages that named C.M., though seven other paragraphs named M.M.
The article quoted Professor Gitlin throughout. About halfway through, he said: "What I find repulsive is featuring children as spokespersons. That's hiding behind children.". His quotations also appeared in the article's last two paragraphs:
"'These kids are reveling in the chance to show off,' Gitlin says. 'They're getting the chance to be little celebrities. If a kid is … reading chapter and verse a text written by somebody else, and is circumventing grown-up questions, then I think that's bait-and-switch politics.[']
"'There's a sinister quality to this. Kids are being seduced with the promise of being celebrities. In this case, the instigators are recruiting for a sort of boys' and girls' auxiliary, for what they believe to be a sacred crusade.'"
We append a copy of this article to this opinion but have redacted C.M.'s and M.M.'s names and faces….
[II.] NEWSWEEK'S STATEMENTS WERE NOT DEFAMATORY …
[A.] The statements at the end of the second paragraph are non-actionable opinions or characterizations
[1.] Pure opinions cannot defame. As Pennsylvania courts recognize, pure opinions cannot be defamatory. Under the First Amendment, opinions based on disclosed facts are "absolutely privileged," no matter " 'how derogatory' " they are. That holds true even when an opinion is extremely derogatory, like calling another person's statements "anti-Semitic."
That privilege makes sense. When an article discloses the underlying facts, readers can easily judge the facts for themselves. Newsweek's article did that here. So the opinions expressed in its article are privileged.
At the heart of this appeal is the first pair of quotations from Professor Gitlin, at the end of the article's second paragraph: "These kids are being weaponized" and "they are defending raw racism and sexual abuse." Those characterizations follow the article's factual description of M.M.'s interviews with Roy Moore and Jennifer Lawrence, vice president of the America First Project, and C.M.'s interview with Infowars's Alex Jones. Only after describing those interviews does the article offer Gitlin's opinion that "[t]hese kids are being weaponized" and that the "hard right" is using their interviews to "camouflage … defending raw racism and sexual abuse."
But those characterizations make no factual claims about C.M. The article does not say that C.M. is a racist or sexual abuser. Nor does it accuse C.M. of having made any specific statements defending "raw racism and sexual abuse." Instead, it quotes Gitlin's opinion about how the "hard right" is using C.M.'s and M.M.'s opinions.. His opinions may seem harsh, but that does not strip them of their absolute privilege.
Nor has C.M. shown that any of those opinions imply undisclosed facts. On the contrary, Gitlin's opinions relate back to the disclosed facts. Suggestions that kids are being "weaponized" as part of a "weird little army" that provides "spokespersons" are most naturally read as characterizing the facts of C.M.'s and M.M.'s interviews. The phrase "defending raw racism and sexual abuse" is an opinion characterizing two disclosed facts. "[S]exual abuse" naturally refers to M.M.'s "cute-if-it-weren't-so-contextually-creepy interview with Senate candidate Roy Moore"; as the article notes, Moore has been accused of sexual assault. And "raw racism" characterizes C.M.'s interview with Alex Jones, in which Jones discussed " 'globalists'—a term the Anti-Defamation League considers an anti-Semitic dog whistle." Even if these opinions are hyperbolic, they still characterize disclosed facts and are thus privileged.
[2.] Nor can derogatory characterizations defame. In any event, derogatory characterizations without more are not defamatory. Take accusations of racism. In Pennsylvania, "a simple accusation of racism" is not enough. MacElree v. Phila. Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1055 (1996). Rather, the accusation must imply more, by for instance suggesting that the accused has personally broken the law to "act[ ] in a racist manner." For example, calling a district attorney "the David Duke of Chester County" could be actionable because it implied that he was unlawfully "abusing his power as the district attorney, an elected office, to further racism."
But Professor Gitlin alleged no specific, unlawful wrongdoing. While saying that someone committed a crime may be defamatory, publicly defending those accused of racism or sexual abuse is not unlawful. We see no evidence that Pennsylvania would let defenders of those accused of bigotry or crime bring defamation actions whenever a publication mentions their defense…. "A certain amount of vulgar name-calling is tolerated, on the theory that it will necessarily be understood to amount to nothing more." … These characterizations cannot be defamatory.
[B.] The other statements are non-actionable speculations or protected political characterizations
C.M. challenges a few of Professor Gitlin's other statements too: that C.M. may be a "spokesperson[ ]" for the "hard right," that he may be "reading chapter and verse a text written by somebody else," and that he is "being seduced with the promise of being [a] celebrit[y]." These statements do not name C.M. directly. But even if they do refer to him, they do not defame him.
Whether C.M. speaks for the "hard right" is "incapable of defamatory meaning" because it just describes C.M.'s "political … philosoph[y]." The other two statements are Professor Gitlin's speculations. Everyone is free to speculate about someone's motivations based on disclosed facts about that person's behavior. "[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable." Those statements are just more opinions based on disclosed facts, so they too are not actionable….
[III.] C.M. ALSO FAILED TO PLEAD ACTUAL MALICE …
Even if some statements in the Newsweek article were defamatory, C.M.'s claim fails because he [was a limited-purpose public figure who "voluntarily inject[ed] himself" into the political controversies surrounding President Trump and] did not plead actual malice…. "Actual malice" is a term of art that does not connote ill will or improper motivation. Rather, it requires that the publisher either know that its article was false or publish it with "reckless disregard" for its truth….
C.M. cites three pieces of circumstantial evidence. First, he argues that Newsweek "grossly departed from professional journalistic standards" by not asking C.M. or his parents to comment for the article. Second, he charges that Newsweek must have done so to improve its "declining and anemic sales and online hits." Third, he stresses that Newsweek put a large photo of C.M. at the top of the article. Even taken together, these facts fall well short of actual malice. [Details omitted. -EV] …
In the rough-and-tumble of politics, C.M. must endure offensive opinions and heated rhetoric. The First Amendment protects even the most derogatory opinions, because suppressing them would chill robust political discourse. As long as an opinion relies on disclosed facts, it is privileged. That is what happened here. And C.M. did not plead that Newsweek knew the facts were false or recklessly disregarded the truth. We will thus affirm.