The Volokh Conspiracy
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From the Report and Recommendation filed last week by Magistrate Judge Andrew W. Austin (W.D. Tex.) in Corsi v. Infowars, LLC, recommending that Judge Lee Yeakel dismiss the claims:
On March 7, 2019, Plaintiffs Dr. Jerome Corsi and Larry Klayman … [sued] Infowars, LLC, … Alex E. Jones, [Roger Stone, and others], alleging claims for defamation, intentional infliction of emotional distress, assault, and unfair competition in violation of the Lanham Act.
Plaintiff's Amended Complaint describes Jerome Corsi as an "author and political commentator," and Larry Klayman as a "public interest legal advocate" and "media personality and author, columnist and syndicated radio talk show host." Defendant Alex Jones is a "media personality" who owns the media outlet company InfoWars, LLC, and a related entity…
Plaintiffs' … Complaint … [alleges] that Alex Jones … made several defamatory statements about Corsi during the October 2018 and January 2019 InfoWars videos[:]
- "[W]hen I was in DC about six months ago with dr. [sic] Corsi he seemed to mentally be extremely degraded to the point of what I would call dementia."
- "[Corsi]'s on the ground at another table we had to help him out of there man they thought he was dead in the elevator."
- "[Corsi] had a stroke or whatever's going on with Corsi that whatever comes out of his mouth ain't the truth."
- Corsi is a "spook, back and forth with different agencies."
The Moving Defendants assert that none of these remarks are actionable because they are all expressions of opinion, rhetorical hyperbole, or substantially true statements….
[In saying,] "when I was in DC about six months ago with dr. [sic] Corsi he seemed to mentally be extremely degraded to the point of what I would call dementia," … Jones … is offering his opinion regarding how he perceived Corsi's cognitive state based on seeing him in person. This is not a fact statement, but rather a statement of opinion and is thus not actionable. The same is the case with the related statement that "[Corsi]'s on the ground at another table we had to help him out of there man they thought he was dead in the elevator." Corsi does not contend that Jones did not see him on the floor, nor does he challenge that others were concerned about his medical state. Again, this is a statement of what Jones perceived. Further, Corsi fails to demonstrate how the statement has a defamatory meaning.
With regard to the statement that "[Corsi] had a stroke or whatever's going on with Corsi that whatever comes out of his mouth ain't the truth," the motion asserts the statement was rhetorical hyperbole, and cannot be the basis of a defamation action. They contend that, reviewed in context, "a person of ordinary intelligence would perceive these words as nothing more than rhetorical hyperbole." The Court agrees that the second half of this statement, that "whatever's going on with Corsi that whatever comes out of his mouth ain't the truth," would be considered by the ordinary person, particularly in the context of an InfoWars video, to be rhetorical hyperbole.
The statement that "[Corsi] had a stroke," however, is a straightforward factual statement, which, if false could support a defamation claim. Jones concedes this, noting that, "in isolation, these might sound like false statements of fact.". He notes, however, that when read in the full context of Jones' commentary, the statement is not defamatory, and instead is a statement of Jones' speculation on Corsi's medical state. This context includes Jones' earlier statement that "I think he's got dementia or a stroke I mean I don't know," and his description of Corsi having "a really sharp brain until about a year ago." Jones contends that in this context, the statement is Jones' view that Corsi was prone to error based on Jones' observations of Corsi's health. Though this is a closer call than the other statements, the Court agrees.
With regard to Jones' statement calling Corsi a "spook, back and forth with different agencies," … "spook" is a colloquial term for a person employed in the intelligence community, and is generally not taken as a derogatory term. It is akin to referring to a police officer as a "cop." Further, Corsi's own affidavit establishes that the statement is literally true, in that Corsi worked with several intelligence agencies and had a top secret security clearance.
To the extent Corsi contends that the implication of the statement was that he had assisted the Mueller investigation in an attempt to harm Roger Stone and Donald Trump, that implication is not apparent from anything alleged in the Amended Complaint, and Corsi fails to demonstrate how, even assuming the implication was made, the statement is defamatory….
Klayman's claim (over Stone "stating that Klayman 'could be the single worst lawyer in America,' has 'never actually won a courtroom victory in his life,' and is an 'idiot' and an 'egomaniac'") was dismissed on various procedural grounds. And the accompanying Lanham Act claims were dismissed on the grounds that the relevant part of the Act, which is aimed at protecting trademarks,
applies only to commercial speech, which is not at issue here. Alliance for Good Government v. Coalition for Better Government, 901 F.3d 498, 506 n.8 (5th Cir. 2018) (noting Section 1125(a) applies only to "commercial advertising and promotion"); Nichols v. Club for Growth Action, 235 F. Supp. 3d 289, 295 (D.D.C. 2017) ("The Lanham Act only restricts commercial speech, or speech connected with a good or service."). The allegedly defamatory comments made by Defendants during the InfoWars video are not commercial speech or advertisements, but rather expressions of opinions as commentary during a radio show….
Congratulations to Marc Randazza, who represents the defendants in this case. You can also read the plaintiffs' motion to vacate the Report and Recommendation—especially if you like filings that repeatedly personally criticize a Magistrate Judge, in an attempt to persuade a District Judge who likely has worked extensively with the magistrate and is generally likely to respect him. (Just from the first two pages: "virtual complete lack of understanding," "appears to have prejudged," "ill-formed prejudgment," "writ[ing] … in haste as he is about to retire," and writing a report that is "frankly contrived," "not … worthy of any consideration," "so 'cooked' as to be of no use by the Court," and containing "hastily crafted sloppiness and gross factual and legal flaws.") It seems to me that it's generally more effective to stick to substantively responding to the Magistrate Judge's reasoning, without lobbing pejoratives at the Magistrate Judge or his work product; but I suppose there's some difference of opinion on that.