Jerome Corsi & Larry Klayman Seem on Track to Losing Libel/Trademark Lawsuit Against Infowars and Alex Jones

Defendants had said 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,'" and that "Corsi he seemed to mentally be extremely degraded to the point of what I would call dementia."

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.

Comments

[Martinned]

Hang on. I don't know anything about these plaintiffs, but these statements strike me as clearly potentially defamatory, at least in an ordinary context. So is the relevant context here that Alex Jones is a nut whom no reasonable person would believe (and is the Magistrate Judge simply being coy about that), or is this another example of destroying defamation law from the inside out?

[David Nieporent]

Which statements? Most of them sound like opinion or rhetorical hyperbole.

[Armchair Lawyer]

Indeed. If you're going to say any of those statements are defamation, you would have to include the statement "Alex Jones is a nut" as defamation as well.

[David Nieporent]

Well, truth is also a defense.

[Martinned]

Yes, clearly. Saying that someone is mentally ill is potentially defamatory. And the more you use factual words to express that concept ("dementia", "stroke"), the less likely it is that anyone will take your statement as a statement of opinion.

[WuzYoungOnceToo]

And the more you use factual words to express that concept (“dementia”, “stroke”), the less likely it is that anyone will take your statement as a statement of opinion.

Not when they're qualified with phrases like "seemed to be" and "what I would call".

[David Nieporent]

Saying that someone is mentally ill is potentially defamatory.

Well, that phrase wasn't actually at issue. But, yes, it could be defamatory. If someone says, "I happen to have reviewed his medical records, and he's mentally ill," that would be an assertion of fact. But in colloquial speech, calling someone crazy is understood as an opinion, not an assertion of fact. It's not capable of being proven false. And it's the context, not the number of words, that's relevant.

In this case, the context was "he seemed to mentally be extremely degraded to the point of what I would call dementia." A statement like, "He's been diagnosed with dementia" is capable of being proven false. But how can "he seemed to be degraded to the point of what I would call dementia" be proven false?

And what reasonable person would hear that and think the speaker — a radio talk show host, not a doctor — was relaying a medical diagnosis rather than just taunting?

Similarly, "a stroke or whatever's going on with Corsi that whatever comes out of his mouth ain't the truth." A claim like "He suffered a stroke" might well be understood as an assertion of fact. But "A stroke or whatever's going on," said (again) by a radio talk show host, not a doctor, is pretty clearly just speculation that there's something wrong with Corsi, not an assertion of fact.

[Ben of Houston]

Let's just use an example.

Multiple psychologists publicly diagnosed our former president with various mental disorders based on his public speeches and performances. They did so with full knowledge that it was illegitimate to do so without personal interviews and also knowing full well that they were diagnosing a stage persona.

Despite this, the Trump team did not sue any of them for libel, thinking that they would be unable to win because these were opinions. Even though they were given a veneer of expert opinion.

If psychologists cannot be sued for violating medical practice and diagnosing a politician they have never met, then I cannot see how a radio commentator's hyperbole can be libelous.

[Dr. Ed 2]

In fairness, Alex Jones was right, sort of, about the chemicals in the water turning the frogs gay -- it is the herbicide Atrazine and UC Berkley's Biology Dept that is worried about some specific frog being endangered because all the heterosexual male frogs are either becoming neuter or female.

Frogs apparently do this naturally, but the UC-Berkley folks -- no bastion of right wing thought there -- fear that it is happening so much to endanger the ongoing future of the species, and they thin that Atrazine is doing it. Maybe they're wrong, but I'm neither a biologist nor one who studies the sex lives of frogs.

[ReaderY]

This opinion seems way off the mark. Intelligence is required in a lawyer. The “mentally degraded” and “dementia” arguments assert the libel per se that Corsi is incapable of functioning competently in his profession. And it is not the only thing said that had that import.

It’s very understandable that a libel defense lawyer would attempt to argue that everything the defendent said was opinion. Why a judge would buy such an argument in a case like this, less so.

[Armchair Lawyer]

Those are statements of opinion. Alex Jones is not a medical professional. He is not giving an expert diagnosis. He's giving an opinion on what it seems to him. It's akin to calling someone an "idiot." A statement of opinion.

[David Nieporent]

Calling someone stupid is not defamatory just because intelligence is useful for doing one's job. It's still just an unfalsifiable opinion.

(Also, you seem to be conflating things; Corsi isn't a lawyer. Klayman is, but Klayman's claims were recommended-to-be dismissed on the grounds that most of the moving defendants didn't say these things, and the one who did said it outside the statute of limitations.)

[Eugene Volokh]

ReaderY: Generally speaking, statements such as that someone is an idiot, or incompetent, or suffers from dementia tend to be seen as opinions by judges, because the judges think they tend to be seen as opinions by readers. That might not be so in all contexts (e.g., if Don Defendant says Paul Plaintiff has been diagnosed with dementia, or is incompetent because he failed to file a lawsuit before the statute of limitations lapsed); but it seems applicable in a context such as this one. To quote a 1999 Tenth Circuit opinion,

Milkovich [the leading Supreme Court precedent on opinion -EV] distinguishes between what one scholar has labeled evaluative and deductive opinion. See Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights Journal 467, 474 (1994). According to Professor Sowle, evaluative opinions are those that are not provably false, and a writer or speaker may not be held liable on a defamation claim for expressing them. In contrast, deductive opinions are those that state or imply assertions that may be proven false; the First Amendment does not immunize them from defamation claims. See id.

Although the distinction between these two kinds of opinions is sometime difficult to draw, consideration of the following factors has proven useful: (1) the phrasing of the allegedly defamatory statement; (2) the context in which the statement appears; (3) the medium through which it is disseminated; and (4) the circumstances surrounding its publication. See NBC Subsidiary (KCNC–TV), Inc. v. The Living Will Center, 879 P.2d 6, 11 (Colo.1994) (en banc). A review of decisions applying Milkovich illustrates how courts have applied these factors in determining whether allegedly defamatory statements constitute protected expressions of opinion.

In some instances, allegedly defamatory statements have been deemed too indefinite to be proven true or false. For example, in Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 184–85 (4th Cir.1998), the Fourth Circuit concluding that a magazine article's statement that optimistic projections about a company's stock were based on “hype and hope” represented the kind of irreverent and indefinite language that indicated that the writer was not stating actual facts. Similarly, Keohane v. Stewart, 882 P.2d 1293, 1300–01 (Colo.1994) (en banc), the Colorado Supreme Court concluded that letters to the editor accusing a trial judge of conspiring to “let off” the defendant could not be reasonably interpreted as stating actual facts because the letters were replete with speculative and hyperbolic language and because the context in which they appeared indicated that the writer was stating his opinion.

[Dr. Ed 2]

Isn't this like classic advertising hype?

[Dilan Esper]

Yes. The puffery is motivated by the same policies as the opinion rule. Consumers don't take "this is the best product in the world!" as any sort of factual claim.

[DaivdBehar]

Too hard. Too much work. Those 4 factors have no clear definition or measurability. Arguable means, more worthless fees for lawyers arguing, and for a judge to waste time. The 4 factors are lawyer bunko scheme. They ass no value.

It is easier, more real, and fairer to sue the misuser of the information. I get kicked out of church, or from my job, or from the supermarket because of the misuse of information. That results in measurable damages, and the relevance of the information to the purpose of the agency can be assessed. I am an alcoholic someone says, relevant to a truck driver job, not relevant to church membership.

[David Nieporent]

Of course it's relevant to church membership.

[Commenter_XY]

Professor Volokh, a question if I may. Regarding the factor test, was that actually given as such (like a 4-part test). I am not really following the distinction between evaluative versus deductive.

"he seemed to be degraded to the point of what I would call dementia"

Reading that quote, it could either evaluative or deductive, right?

[Rossami]

re: "Intelligence is required in a lawyer."

Objection, assumes facts not in evidence.

As a contrary example, look at the plaintiffs' motion to vacate. That filing alone is evidence that intelligence is not necessarily required to be a lawyer.

[CJColucci]

Intelligence is required in a lawyer.

Says who?

[ReaderY]

That said, I agree that it would have been ordinarily prudent for the motion to vacate not to attack the judge personally but just lay out an argument, which I think straightforward and correct, that the statements are fact and not opinion.

Attacking the judge in a situation like this is not merely unwise, it lacks ordinary prudence. It tend to create an impression that the defendant’s factual statements regarding professional competence might have been true.

[David Nieporent]

I agree that it would have been ordinarily prudent for the motion to vacate not to attack the judge personally

If you think that, you're definitely not Larry Klayman.

[Bored Lawyer]

ReaderY is far too rational and intelligent to be Larry Klayman.

[WuzYoungOnceToo]

ReaderY is far too rational and intelligent to be Larry Klayman.

Which appears to be a bar so low as to be essentially non-existent.

[Armchair Lawyer]

Sounds accurate

[Dan Schiavetta]

These litigants all deserve each other. If I was the judge I’d never stop throwing up.

[bernard11]

This was my reaction.

Is it ever possible for all the litigants to lose a case?

[Orbital Mechanic]

If I were the judge I would be hoping that they eat each other into oblivion. That would be a true public service.

The case should be re-titled Deplorable vs. Derp, with the provision that the titles can be swapped at will.

[ah....Clem]

"Is it ever possible for all the litigants to lose a case?"

Yes, for some values of "lose".

See https://en.wikipedia.org/wiki/Pyrrhic_victory

[Jimmy the Dane]

I thought Klayman was in jail for some sex crime he committed while hiking....