Conservative Commentator Candace Owens Sues USA Today and Fact-Checker "Lead Stories" for Libel

over allegedly false fact-checking "charging [Owens] with spreading misinformation about the Covid-19 pandemic on the internet in 'an attempt to downplay the severity' of the pandemic."

The case in Owens v. Lead Stories, LLC, just filed yesterday in Delaware state court; here's an excerpt:

1. This action arises from the Defendants' malicious publication of false "fact check" articles charging Plaintiffs with spreading misinformation about the Covid-19 pandemic on the internet in "an attempt to downplay the severity" of the pandemic.

2. The Defendants wrongfully leveraged their power as Facebook ThirdParty Fact-Checking partners to place false or misleading information warning labels on Plaintiffs' posts for the purpose of redirecting web traffic away from Plaintiffs and directing it to their respective websites. By such a scheme, the Defendants sought to increase their number of clicks and advertising revenue by commandeering Plaintiffs' large Facebook following, enhance their status on the internet, and enhance their relationship with Facebook as Third-Party Fact-Checking partners.

I haven't looked at this closely enough to opine on the merits, but I thought it worth passing along to our readers; you can read the entire Complaint.

Comments

[Sam Gompers]

We have months and months of data demonstrating COVID is just another flu.

Yet for some they still believe it's some sort of insta-death sentence and live in a constant state of panic.

99.999% survival rate for most people.
80% of the deaths are over 65.
0.5% have died FROM COVID. The rest have died WITH COVID.

It's so bizarre to see people who claim to be The Party of Science (tm) ignore so much obvious data.

[Rev. Arthur L. Kirkland]

Pandemic management tips from poorly educated, disaffected clingers are always entertaining.

Why does a right-wing blog attract this science-disdaining, bigoted, obsolete audience?

[Sam Gompers]

Meanwhile, pandemic management policies from the Party of Science resulted in a nursing home genocide in five states which accounts for a plurality of all COVID attributed deaths.

[Sarcastr0]

Genocide?

[Sam Gompers]

Yeah intentionally sending all those COVID patients into nursing homes and murdering the elderly.

You know, like those five Dem governors did.

[Sarcastr0]

I mean, even if your as usual tendentious set of facts is correct, genocide ain't that.

[Brett Bellmore]

Technically right. It was an atrocity, not a genocide. Not all cases of mass murder are "genocides", which requires that the victims be related by some ethnic or racial characteristic. Cuomo's victims only had being old in common.

[Sarcastr0]

Why do you think such melodrama isn't really playing outside of the far right?

[Brett Bellmore]

Why do you think it's melodrama? Several Democratic Governors issued a policy which had the very predictable consequence of a lot of people dying. They ordered nursing homes, full of very vulnerable people, to accept people who were contagious. That's just an objective fact. A large percentage of Covid deaths in the US were directly related to that policy. Nursing home deaths in states that didn't enforce this policy were much, much lower.

Are Governors in general not responsible for the predictable consequences of their actions, or is it only Democratic Governors?

[NToJ]

"Why do you think it’s melodrama?"

It isn't, unless you also think that people who accused President Trump of "mass murder" for COVID deaths are being melodramatic.

[Brett Bellmore]

The difference here is that in both cases, most policy is done at the state level.

[NToJ]

@Brett,

If the administration had the power (but not the obligation) to issue national responses, but deferred to states, that's a decision that can be criticized, including melodramatically.

Second, "policy" includes a lot of things. The Feds issued guidance on what constituted essential businesses, and many states relied on that guidance on issuing their own orders. Those decisions are subject to criticism.

More importantly, the President himself issued statements downplaying the virus. To the extent those statements discouraged people from engaging in behavior that would have arrested the spread of the disease, that's a failure of leadership that is subject to criticism.

[VinniUSMC]

"More importantly, the President himself issued statements downplaying the virus. "

The virus should be downplayed. Outside of nursing homes, at risk populations (not the entire general public) should take appropriate cautions, and everyone else should treat this exactly like every other cold/flu season. The "number of cases" rhetoric is BS, and likely under-counted dramatically, while the number of Covid deaths/population is important, but likely dramatically over-counted (especially because of Democrat incompetence and freakish paranoia.)

[Brett Bellmore]

"If the administration had the power (but not the obligation) to issue national responses, but deferred to states, that’s a decision that can be criticized, including melodramatically."

"If". We have a federalist system. The administration had very little power to dictate national rules that the states had to follow.

Nobody was recommending that nursing homes be forced to take Covid 19 carriers. Doctors were saying it was crazy.

"A group representing doctors who work in nursing homes, known as AMDA, the Society for Post-Acute and Long-Term Care Medicine, said in a recent resolution that “admitting patients with suspected or documented Covid-19 infection represents a clear and present danger to all of the residents of a nursing home.”"

[Rossami]

NToJ asks "If the administration had the power (but not the obligation) to issue national response..."

And that renders the question moot. Regardless of the president's ill-considered tweets, the administration did not (and does not) have the power to issue a national response.

[NToJ]

"The administration had very little power to dictate national rules that the states had to follow."

This is wrong but it's not worth arguing with you about. National responses aren't limited to "national rules that the states had to follow." There are things the administration (or the CDC) could have done but didn't. There are things the administration could have done (but didn't).

"Nobody was recommending that nursing homes be forced to take Covid 19 carriers."

The issue we were discussing is whether accusing people of murder is melodrama, or not. Cuomo's decisions are of course subject to criticism (just as any other governor's decisions are, or the President's decisions). I don't think Cuomo handled it properly but he didn't intentionally murder nursing home residents. They were trying to clear hospital space in anticipation of a surge, and needed to move the beds. That's why the March advisory begins "There is an urgent need to expand hospital capacity in New York State to be able to meet the demand for patients with COVID-19 requiring acute care." If you can't return the elderly to a nursing home, where will you put them?

Does that mean it was the right thing to do? No, not in my view. And not in New York's view, either, which is why they walked back the policy just months later. But it's not because they engaged in "mass murder".

[NToJ]

@Rossami

"Regardless of the president’s ill-considered tweets, the administration did not (and does not) have the power to issue a national response."

Are you sure? In September, when the President announced that the federal government would distribute millions of rapid COVID tests to states, you think that was unconstitutional? Is the CDC unconstitutional, in your view? Is all spending clause legislation giving federal agencies authority to aid in pandemics, unconstitutional?

[NToJ]

On the one hand we are assured it is "just another flu." On the other hand, it is the tool for "genocide" and "murdering the elderly."

[Dubz]

Wasn't aware that Media Matters hired "Reverends" - tell me, "Reverend", has it been difficult to hold services out of your step-mother's basement during the dempanic?

[MatthewSlyfield]

"COVID is just another flu."

No, it s a slightly more severe than normal cold. It is absolutely not an influenza.

[NToJ]

Who is ignoring the data, precisely?

[Sidney r finkel]

Reading just the complaint is somewhat useless, it's like trying to decide a position based on hearing one side of an argument. Given Mr. Volokh's preference for unemcumbered free speech we look forward to hearing him opine on this case once it has proceded so that both sides are known.

[Rev. Arthur L. Kirkland]

He's not likely to take a position hostile to a clinger princess . . . it's be more 'this is interesting . . . you decide.'

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL. My layman's opinion of perjury and such is that if you set yourself up as an authority on something, whether as a used car salesman, a cop, a witness, an expert, or a fact-checker, and you lie or are careless with what you opine, that is the moral equivalent of perjury.

I don't know any of the details about this, but anyone who proclaims themselves an arbiter of truth as a fact-checker is a damn fool to wade into COVID-19 disputes.

[OtisAH]

Yeah, man, public health is, like, so subjective, man.

[David Nieporent]

Has there ever been a comment that started with IANAL that wouldn't have been better if it had stopped there as well?

[Rev. Arthur L. Kirkland]

'Plaintiff is a poorly educated, delusional, downscale dumbass who lathers right-wing yahoos for paltry political polemics and entertains incels for profit.'

If there is anything clingers can't abide, it's fact-checking.

[VinniUSMC]

"it’s fact-checking."

Biased opinion masquerading as fact-checking. Brought to you by the party of "science" and Artie's congregation of "reason".

Poor clinger. It must be tough when no one else sees just how important and amazing you are. Don't worry, I'm sure your mommy still loves you, it's why she lets you stay in the basement.

[Ben_]

We need to see a lot more of these. If there were a legal charity like Institute for Justice dedicated to suing leftists for defamation, I would donate.

[Rev. Arthur L. Kirkland]

There's an industry focused entirely on soaking up cash from right-wing malcontents, usually by direct mail. It shouldn't be difficult to find your way onto the mailing list.

[Brett Bellmore]

It's actually predicated on a violation of the terms of Section 230.

"The content published by Plaintiffs, alleged below, is not “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” within the meaning of Section 230 of the Communications Decency Act (“Section 230”), and the Defendants and Facebook did not censor Plaintiffs’ content in good faith."

Her argument is that FB's "fact checking" activities exceed what Section 230 permits, and so FB and it's "fact checkers" have left the safe harbor Section 230 provides.

I'd say that's right, but that doesn't mean she prevails on her defamation claim, only that FB wouldn't be immune to it.

[Voize of Reazon]

Which might make a difference if Facebook were a defendant.

[jb]

Yeah, Owens needs to hire better lawyers. Section 230 immunity is only relevant to the platform. It's always been possible to sue the people who actually wrote the content as Owens is doing here. The inclusion of the arguments around Section 230 here are just an opportunity for the attorneys to bill some extra hours.

Now, if she were actually suing Facebook this would be an interesting Section 230 case as Brett describes. This is one of the scenarios that Thomas flagged in his recent statement on Malwarebytes vs. Enigma in which he implies that Section 230 is being read overbroadly, but in reality where I don't think there's really any case law at all.

[Brett Bellmore]

Well, Section 230 IS being read overbroadly; In as much as the defendant was actually working for FB, originating content for them, it's not implausible that you'd have to penetrate Section 230's shield in order to get at them. Because a court might treat the defendant as protected due to their relationship with FB.

[jb]

Can you point to any case where any court has made such a holding? This is roughly like saying that Gawker could have made a successful Section 230 defense against Hulk Hogan because their site happens to be on the Internet. I agree that would be an overly broad reading of Section 230, but I disbelieve any courts are doing it.

[Brett Bellmore]

I can't point to any case where a court has ever held a platform responsible for ANYTHING since Section 230 arrived. It's more absolute a shield, in practice, than even 'qualified' immunity.

[jb]

Your assertion here isn't that Facebook wouldn't be held liable (which I'm not sure about--I don't think the issue has gotten an answer although there's some in-flight suits about it right now), but that the actual authors of the content also wouldn't be. That's not a question of platform liability, and seems like you're just making up a theory of immunity that has never been supported by any court and then asserting that this made up theory is evidence that courts are reading Section 230 too broadly.

[NToJ]

There are cases interpreting the immunity narrowly. See 108 F.Supp.3d 876. The problem is that most platforms have in their Terms and Conditions an absolute right to remove content for any reason, at their sole discretion. So claims that the platform has breached its agreement by doing so are going to run head first into state contract law.

[Voize of Reazon]

Fair Housing Council v. Roommates.com 521 F.3d 1157, 1162 (9th Cir. 2008)

[NToJ]

"In as much as the defendant was actually working for FB..."

The defendants are Lead Stories, LLC and USA Today. These aren't FB employees.

"...it’s not implausible that you’d have to penetrate Section 230’s shield in order to get at them."

It is implausible that a plaintiff will be able to "get at [FB]" without suing them, first. If Candace Owens or her lawyers think FB is outside of the protections of Section 230, why do you think they didn't sue FB?

[Brett Bellmore]

FB selects certain groups to do "fact checking" for them, and Lead Stories is one of those groups. I don't know that they get paid for this service, or whether they're compensated in non-monetary fashion, but they're given a job by FB, and do it. They "work for FB".

I think they didn't sue FaceBook, because FB could turn around and say, "It wasn't us, it was these guys.", and suing "these guys" bypasses that defense.

[NToJ]

"They “work for FB”."

Sure, in the sense that if I hire somebody to build a fence for me, they "work for me". But I'm not liable for an independent contractor unless I exercise sufficient control over their work.

"...suing “these guys” bypasses that defense."

If you don't sue FB, it doesn't "bypass" FB's defense. It just means FB doesn't even have to assert the defense. If this is a real defense, that just proves that FB isn't liable for the conduct of its independent contractors.

[cmcc_aus]

The whole "fact-checking" business is a racket. It tends to test the 'fact' as printed and published against some agreeable baseline of "truth". Approval tends to be circular to the opinion going in. The real challenge is to get our arms around "truth." Whoever owns truth can profit off the fact-check business.

[Stephen Lathrop]

Maybe the conclusion will be it's all opinions on both sides, and private publishers get to do what they want about opinions.

[WuzYoungOnceToo]

Maybe the conclusion will be it’s all opinions on both sides

That'd be a pretty difficult conclusion to justify given the "Fact" part of the self-identification: "Fact Checker".

[ReaderY]

I don’t see what the additional scheme to redirect web traffic part of complaint adds up to.

Any form of speech is in part a scheme to direct people’s time and attention, and often money, to what the speaker is talking about, and away from everything else they could be focusing on at the moment. That’s just the nature of speech. Describing it in menacing-sounding words doesn’t change this, and doesn’t make it illegal.

The web site might have defamed the plaintiff, and that part would be illegal if true. But there’s nothing illegal about trying to get people to pay attention to what they have to say.

[Brett Bellmore]

Motive for the defamation?

[jb]

Owens is only even claiming defamation against Lead Stories LLC; her claim against USA Today is purely this other silliness about them stealing traffic from her.

[OtisAH]

No surprise here that Ms. Owens believes she’s competing with USA Today. She’s an unwell woman.

[David Nieporent]

She's a Trumpkin grifter, but if the numbers in that complaint are even in the same universe as accurate, she's a very well woman.

[Doug Huffman]

Plandemic. PLAndemic. PLANdemic. Hyperbolic hysteria.

The conspiracy of ignorance masquerades as common sense.

Only the visible aspects of prevention plan-demic are of controversy. Are your hands cleaner than this time last year, is your house cleaner? Why no controversy? Because they are not visible signals of compliance.

[Sarcastr0]

Plandemic, eh?

How long till full-on QAnon around here?

[OtisAH]

Who’s paying for this loser of a dog of a frivolous lawsuit?

[David Nieporent]

Owen's gullible fans, most likely. It's almost certainly a fundraising ploy. (e.g., "Send me money so I can fight against Big Tech censorship!!!!!!")

[J Mann]

I looked at the complaint, and I'm sympathetic to Owens on the first of her two issues, but not the second.

1) The first Facebook post at issue argued that the US counts any death where the person was suffering from Covid as a Covid death. This seems to be at least within the realm of reason, as the complaint cites Birx and the Illinois director of health as agreeing.

Owens then goes on to say that she suspects other cause deaths like heart disease have fallen sharply and asks for help getting the data, and concludes with something along the lines of "They" won't report other cause death numbers.

Facebook outsourced the fact checking to a third party source, Lead Stories, which labeled her post False, a Hoax, and got her webpage demonetized.

2) The second issue seems much weaker. Owens wrote

"According to CDC reports—2020 is working out to be the lowest flu death season of the decade. 20,000 flu deaths took place before Covid-19 in January, and then only 4,000 deaths thereafter. To give you context: 80,000 Americans died of the flu in 2019. "

All of those numbers are inaccurate. 36,000 Americans died of the flu in 2019, the CDC reported 2,000 flu deaths in January 2020, and over 5,000 deaths from January to April. USA Today reported those numbers, and also figured out that Owens' 80,000 number was based on a preliminary the 2017-18 flu season, which was later reduced to about 61,000 deaths.

Owens' argument is that readers should have understood that her numbers were not intended to represent actual facts, but were sarcastic exaggeration, and that USA Today was defamatory in taking them seriously. (I don't buy that one - certainly when I read the paragraph in the Complaint, it looked to me as if she was attempting to report actual information, even if other parts of the post were sarcastic)

[jb]

I think this is a pretty solid analysis.

Most of the legal theories in the complaint seem like a stretch, but she's on much more solid ground with the first post than the second. The Lead Stories piece seems like a fairly solid rebuttal of Owens's point, but I'd probably call it something like "Disputed" rather than "False". So maybe there's a defamation case there--would be interesting to get Professor Volokh's take. The rest of the suit seems like total garbage though.

As an aside, though, there's a lot of chutzpah in asserting that giving wildly incorrect but specific numbers in the second post is just a matter of opinion and sarcastic exaggeration, but that Lead Stories declaration that her first post was "False" is definitely a libelous statement of fact.

[NToJ]

"Defendants’ Third-Party Fact-Checking agreement with Facebook is
void against public policy because it allows Defendants to censor speech that does not fall within the specific categories of content enumerated in Section 230."

Yea good luck with that.

[Brett Bellmore]

Yeah, I don't think that "void against public policy" argument works. OTOH, I think she's right that FB forfeits their Section 230 protection against liability by engaging in "fact checking", and moderating on the basis of it. "Fact checking" often involves non-user originated material, and Section 230 only protects moderation on certain sorts of grounds.

[NToJ]

Candace Owens's lawyers don't yet agree, since they didn't sue FB. You can imagine why; 47 USC 230(c)(1) says FB isn't a "publisher or speaker of any information provided by another information contend provider" like the two actual defendants. So no defamation in any event.

Even if she could get around 230(c)(2) (not for defamation), what remedy does she have? Breach of contract against FB? For what?

[Brett Bellmore]

I wouldn't count on "information provided by another information content provider" getting FB off the hook if the other information content provider was, effectively, a subcontractor to FB, not a user of the platform.

[NToJ]

Why do you think that distinction matters? The definition of "information content provider" is at 230(f)(3).

[David Nieporent]

I had LOLed when I read that paragraph yesterday, but it's just a pointless standalone paragraph that adds nothing to the actual complaint. There's no cause of action even hinted at there (thankfully).