Free Speech

Some Thoughts on the Avenatti v. Fox News Libel Lawsuit

Past perfect, libel-proof plaintiffs, substantial truth, “actual malice,” statutes of limitations, and more.


Michael Avenatti sued Fox News and various Fox News personalities Thursday for libel, stemming from Fox's coverage of Avenatti's Nov. 2018 arrest for domestic violence. Much of the Complaint consists of general condemnations of Fox News, but on p. 23 the Complaint finally comes to the particular allegations about how Fox had supposedly defamed Avenatti in particular. (Ken White [Popehat] has more.) Here are some quick thoughts on why the lawsuit is likely going nowhere.

[1.] Substantial truth: The problem Avenatti is facing is that he was indeed (according to the LAPD) arrested, so Fox News is entitled to report on this arrest, booked, and released on bail. A week later the woman involved (Mareli Miniutti) got a restraining order against Avenatti, based in part on allegations of violence, so that suggests that there was at least reason to believe that Avenatti was more likely than not guilty. (The standard of proof required for a restraining order is preponderance of the evidence; for arrest, it is probable cause.) But in any event, Fox News was entitled to report on the arrest even if the allegations leading to the arrest had proved unfounded.

Avenatti's points out that some of the Fox News accounts (a) said he was arrested for violence against "his estranged wife" (Miniutti was a girlfriend), ¶ 105, (b) said that he had been not only arrested, but also "charged" (prosecutors ultimately declined to charge him), ¶ 78, (c) said that "her face was swollen and bruised," ¶¶ 81, 105, and (d) said that Avenatti had shouted at the time, "She hit me first!," ¶ 105.

But modern libel law embraces the "substantial truth" doctrine, under which "[m]inor inaccuracies do not amount to falsity so long as 'the substance, the gist, the sting, of the libelous charge be justified.'" If the statement with the errors corrected would still carry the same reputation-injuring message, the errors aren't treated as defamatory: "The substantial truth test involves consideration of whether the alleged defamatory statement was more damaging to the plaintiff's reputation in the mind of the average listener than a truthful statement would have been." The error in identifying the alleged victim, for instance, would pretty clearly count as insubstantial.

I think the references to "charges" is likewise nondefamatory. First, simply saying that he was "arrested in L.A.; charged with assault" is a fair summary of the arrest; it's common to say that someone was "arrested on charges of …" even when no charges in the sense of an indictment or criminal complaint was filed. But even the statements that erroneously said the D.A.'s office was involved are likely don't change the gist of the allegation. The average viewer is likely to treat an arrest for domestic violence as roughly comparable in its sting to a prosecution for domestic violence. (Both, after all, require just probable cause, and don't involve a jury finding or proof beyond a reasonable doubt.)

[2.] Actual malice: Now the claims that the alleged victim had a swollen or bruised face might have a worse sting than just the fact of the arrest, because it suggested that Avenatti had indeed seriously injured Minutti. Likewise, the claim that Avenatti had shouted "She hit me first!," might have a worse sting as well, because it suggested that Avenatti had admitted that he had hit her.

But here it appears that TMZ had reported this (citing its "law enforcement sources"), and Fox picked up the story from there. Because Avenatti was already a public figure at the time, he can't recover for such errors (if they are errors) unless he shows what the law calls "actual malice," which really means that Fox knew the allegations were false or likely false. And I doubt this is so; whether or not it was reasonable for Fox to rely on the TMZ's account (which might have been part of the inquiry if Avenatti had been a mere private figure), I don't think that such reliance—even coupled with some Fox personalities' dislike of Avenatti—qualifies as knowledge that the allegations were false or likely false.

[3.] Statute of limitations: But beyond this, Avenatti probably won't even get to any of this because the publications were in Nov. 2018, and under both the law of California (where Avenatti lives) and New York (where Fox News broadcasts from) defamation claims must be brought within one year of publication.

It's true that in Delaware, where the lawsuit was filed, the statute of limitations for libel is usually two years. But that's for defamation cases to which Delaware law applies; in some cases, Delaware courts apply out of state law, following the Restatement (Second) of Conflicts of Law. Under the Restatement (§ 150),

(1) The rights and liabilities that arise from defamatory matter in any … broadcast … are determined by the local law of the state which … has the most significant relationship to the occurrence and the parties ….

(2) When a natural person claims that he has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.

So California law will likely apply, since I believe Avenatti was domiciled in California in 2018; and the runner-up candidate would be New York (not Delaware). And, as I said, the California and New York statutes of limitations preclude his claims.

[4.] Libel-proof plaintiff? The first paragraph of the Complaint's discussion of the allegedly libelous statements says,

At the time of this arrest, Mr. Avenatti was 48 years old and had never been previously arrested in his life for any reason, even as a juvenile. He had never been charged with any crime and he had no criminal record.

The "had never been" are, of course, the "past perfect," which indicates what was true as of a particular past time (here, 2018). Of course, we wouldn't say he "has never been charged with any crime" (the present perfect), because as of now Avenatti has been famously charged with "perjury, fraud, failure to pay taxes and other financial crimes" and convicted of attempted extortion and fraud.

Do Avenatti's felony convictions make him a "libel-proof plaintiff" (as in the recent Lenny Dykstra case)? It's not clear whether California would recognize the "libel-proof plaintiff" doctrine; but in any event, in most of its formulations the doctrine asserts that "a plaintiff's reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject" (emphasis added). In then-Judge Scalia's words (the opinion was later reversed, but on quite unrelated grounds), any broader version of this theory,

must be rejected because it rests upon the assumption that one's reputation is a monolith, which stands or falls in its entirety. The law, however, proceeds upon the optimistic premise that there is a little bit of good in all of us—or perhaps upon the pessimistic assumption that no matter how bad someone is, he can always be worse.

It is shameful that Benedict Arnold was a traitor; but he was not a shoplifter to boot, and one should not have been able to make that charge while knowing its falsity with impunity…. Even the public outcast's remaining good reputation, limited in scope though it may be, is not inconsequential. ("He was a liar and a thief, but for all that he was a good family man.")

Here, Avenatti's reputation for honesty and law-abidingness has by now doubtless been destroyed by his criminal convictions. But that is not the same "specific subject" as the abuse allegations; and indeed some people in some contexts (perhaps social or romantic) may forgive a person's financial improprieties or even (nonviolent) extortion, but not his having allegedly badly beaten a girlfriend. And while some courts do suggest that "habitual criminal[s]" might be libel-proof as to any subject, that is likely applicable only to those who "possess a life-long record of criminal conduct," which Avenatti did not (even taking into account the likely hyperbole of the "life-long record" requirement).

Moreover, returning to the past perfect point, for at least the few months between November 2018 and his financial crimes indictment, Avenatti's reputation had not yet been damaged by those accusations. During that time, he wasn't "libel-proof" under even a broader formulation of the doctrine, and his reputation may well have been injured.

So Avenatti seems likely to lose: most clearly, I think, under the statute of limitations, and

[5.] Anti-SLAPP statute: There's also a question of how much Avenatti will lose—will he just lose the case, or will he also have to pay the defendants' attorney fees? That too depends on which state's law applies: There's a good argument that California's should apply, in which case Avenatti would indeed be on the hook for fees, if he loses, and will face an early anti-SLAPP motion. But if the Delaware court disagrees, and chooses to apply Delaware's anti-SLAPP statute, then fees and an early motion to strike won't be available, since Delaware's statute only covers disputes related to applications for public permits, zoning changes, and the like.

Thanks to Floyd Abrams, David Greene, Lyrissa Lidsky, and Ken White for their guidance on specific matters that I touch on above.

NEXT: "In July, R.W. Continued to Quote Scripture, but Also Sent to [J.W.] a Picture Text of His Genital Area."

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  1. For anyone interested, the Scalia opinion is Liberty Lobby v. Anderson, 746 F.2d 1563 (D.C. Cir. 1984), available here:

    1. Whoops, thanks -- I just added the link myself, prompted by your comment.

  2. Public figures cannot prevail against journalists in the US. There are people lower in morals than the lawyer. One is the serial rapist and murderer of children. The other is the journalist.

    A statute can remedy this ridiculous immunity of the press. If an article has violated the journalism Code of Ethics, it should be negligent per se, and libel should be possible. This self regulation does not violate the Free Press Clause.

    Such a law would be in the best interest of journalism. Legal liability is a replacement for endless cycles of violence. If that is true, then immunity fully justifies violence as a remedy. The contra-positive of a true assertion is always true. (A then B is true. Not B then not A must be true. All bats are mammals. This animal is not a mammal. It cannot be a bat.)

    1. Some journalism organizations have codes of ethics for their members, and some news organizations and publications have “ethics” rules, but there isn’t a “journalism Code of Ethics.” As long as the First Amendment remains unchanged, governments can’t impose one or force journalists to adopt a single code. The remedy lies in overruling Times v. Sullivan.

      1. NY Times can be overturned by statute. Self regulation through these codes is a way to avoid violating the Free Press Clause.

        1. Self-regulation necessarily includes the right to not regulate oneself. While self-regulation is to be applauded, no such regime would be enforceable.

          On top of that, "the press" is not a monolith. Just because the NY Times and Columbia School of Journalism adopt a particular code of ethics, they have no right or authority to force that on you, an independent publisher or blogger nor even on a smaller traditional newspaper.

          Times v Sullivan cannot be overturned by mere statute and your proposed code of ethics wouldn't provide a workable solution in any case.

    2. You snuck in the "fully justifies" bit about 2/3 of the way to your conclusion, without apparent justification. So your conclusion doesn't follow.

    3. *** One is the serial rapist and murderer of children. The other is the journalist. ***

      I really don't think that's a fair statement. You're being really unfair to serial rapists and murderers of children.

  3. Is it really possible to libel Avenatti? Is it possible for Avenatti to have any money to pay his own legal fees, much less Fox's?

  4. I am deeply saddened whenever I see someone of great talent self destruct because of character issues. He was a great lawyer. Now he’s a soon to be disbarred felon. Why did he trade in a bright future for temporary but fleeing benefit? Tragic.

    1. "He was a great lawyer. "

      A legend in his own mind is more like it.

      1. He had pretty good lawyering skills. Try, just once, to be gracious toward someone on the other side of an issue.

        1. Have you met Bob?

        2. Dude is a convicted thief and fraudster. He stole, from among others, a paraplegic man.

          1. Right, because a horrible person can't possibly be a good lawyer.

            1. If you’re stealing from clients, then no you cannot.

              1. Obviously not to that client, but presumably he had more than one.

          2. Bob,

            The original statement with which you disagreed was that Avenatti had a lot of talent as a lawyer. I despise him, but I think the fact that he had a lot of talent is pretty obviously true. You are confusing whether it is a good idea for anyone to hire some with the character issues Avenatti has or whether a lawyer who steals from clients can be a "good lawyer." But the question was does he have a lot of talent, more talent than the average lawyer, and I think that is probably true (at least as a litigator). It's those very talents that resulted in us even knowing his name. But he is a crappy person and, at least in one sense, a crappy attorney (because he allegedly steals from clients), but he is nonetheless a very talented attorney.

            And so it is sad to see that much talent wasted because of character issues. (But it is the opposite of sad if he did what he is alleged to have done and pays the appropriate price. Too many fraudsters profit from their scams. I won't mention the obvious name.)

            1. I agree with Bob his main talent is self promotion. From the first time I heard of him he seemed to be on a collision course with reality. Perhaps some long time ago he was different, but I don't think so.

        3. I’m a member of the CA Bar, and I’ve read all of the documents related to his disciplinary actions, including an allegation that he embezzled a paraplegic client’s settlement money and then made a loan to the client when he asked about his money. Moreover, I followed his saga in the media as a non-equity partner at his law firm alleged that he didn’t pay him according to an employment contract and rent woes related to his law offices. And I’m not even addressing his criminal convictions. Good lawyers don’t engage in this type of conduct, no matter what kind of lawyering skills they have. It’s hard to be gracious to a man with the record of misconduct alleged by the Bar, and his being “on the other side of an issue” has nothing to do with my contempt for him.

          1. You've admitted he has talent. I agree he isn't a "good lawyer", but he is a talented one.....until he loses his license. Then he's just a guy who would be a talented lawyer except for the fact that his character disqualified him from being a lawyer at all. (I despise him too, by the way. But truth is truth, and he has talent. But little to no character.)

            1. For certain values of good/bad, i.e., virtuous/iniquitous, he's earned his current and probably lifelong reputation as overall a bad lawyer. But that doesn't mean on a case by basis that he hasn't sometimes been good.

              For other values of good/bad, i.e., effective/inept, it's beyond question that sometimes he's been quite good.

          2. "on the other side of an issue" was a poor choice of words on my part.

  5. Desperate for publicity even now, bankrupt and headed for prison. Strange bird.

    Have any of his media enablers apologized for promoting him?

  6. Leaning into some fun ad hominen, I think it's always worth pointing out that Avenatti was Jonathan Turley's research assistant.

    1. I did not know that.

  7. NYT v Sullivan: 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

    EV: Because Avenatti was already a public figure at the time, he can't recover for such errors (if they are errors) unless he shows what the law calls "actual malice," which really means that Fox knew the allegations were false or likely false.

    I don't pretend to correct EV on the law, but I will never understand why it makes sense to equate, "reckless disregard," with, "likely false." An ethical editor or publisher—assessing whether a potentially libelous allegation of fact is true or not—would absolutely regard as reckless the publication of any such allegation prior to forthright attempts to ascertain its truth. That given, many publishers would go ahead and publish if good-faith attempts to verify the facts had been made, but proved unavailing. I think that latter framing probably does fall within the conduct the NYT v Sullivan Court intended to protect. It is not the same, however, as just blowing off any requirement to verify.

    Unfortunately, Professor Volokh's interpretation, and I suppose the law's interpretation as well, seems to say, "If the story is too good to check, go ahead and publish it without checking. That way, there is no chance you can know it is likely false, and you are in the clear."

    My gut tells me that is not the meaning the NYT v Sullivan Court intended. Even if it is what was intended, I don't think it is a wise approach to protecting press freedom.

  8. Avenatti? No thanks. I've 'ad a few, and they always disagree with me.

  9. On the matter of Fox relying on TMZ, it's important to remember that in journalism, it's often less a matter of relying upon a source to be telling the truth, than it is just picking the source saying what you want. When journalists set out to lie, they don't usually just make stuff up, they find somebody else who's making it up, and quote them.

    That way, when the lie is pointed out, they can excuse themselves by saying, "We just accurately quoted X, it's 100% true that he said it."

    1. And if you want to stop that behavior, you do it by suing the person the newspaper quoted. In other words, Avenatti should have sued TMZ (on that point, at least). Do that enough and people will stop saying stupid things to reporters.

      1. But you can't shut off the supply of liars. The supply of people who buy ink by the barrel and are willing to republish liars is rather more limited.

        However, my point was simply that it does NOT follow from Fox republishing TMZ's allegations, that Fox actually thought the allegations were true. 'Journalists' will often republish lies if they want them spread around.

  10. I wonder how (or if) Avenatti is paying for this. A 136-paragraph long complaint seems like such a ridiculous waste of time for a claim that is almost certainly time-barred. I don't see any way Avenatti can defeat the presumption that the law of the state of his domicile (CA or NY, either one) will apply to bar the claims.

    1. Maybe he wrote it himself. Doesn't seem like he has many actual clients left and aside from spending time on his own legal woes nothing to do.

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