The Volokh Conspiracy
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From the opinion today in Avenatti v. Fox News Network, LLC, written by Third Circuit Judge Stephanos Bibas (sitting by designation in District Court):
News outlets are not liable for minor mistakes, especially when reporting on public figures and matters of public concern. Michael Avenatti, a famous lawyer, was arrested on suspicion of domestic violence. Fox News covered his arrest. He sued, claiming that its reporting defamed him. But most of its statements were substantially true. And Avenatti does not plausibly plead that Fox or its employees knew that the statements were false or recklessly disregarded that possibility. He also fails to allege any recoverable damages. I will thus dismiss his complaint….
In 2018, Avenatti thrust himself into the national spotlight by "develop[ing] and execut[ing] an extensive media strategy" as then-President Trump's "fiercest, most vocal critic." He announced that he was considering running for President. But his fortunes soon took a turn for the worse: Avenatti was arrested by the Los Angeles Police Department for suspected domestic violence….
The night of the arrest, [Fox News Network's] hosts reported extensively on Avenatti…. Avenatti complains that Defendants lied about the details of his arrest: He does not deny that he was taken into custody, nor that he got out on bail. But he was not "charged … with any crime relating to any alleged incident involving domestic violence or assault." His estranged wife was not involved, nor did she file a complaint. There was no "incident or allegation involving any witness, victim or woman" being left with bruises or a black eye. And Avenatti did not run after a woman yelling, "She hit me first!" …
Judge Bibas concluded that some of the statements were substantially true:
Defamatory speech must be materially false. "Minor inaccuracies do not amount to falsity so long as 'the substance, the gist, the sting, of the libelous charge be justified.'" The heart of Avenatti's case is just such a minor error.
Avenatti complains that Defendants said he was arrested on charges of domestic violence. He admits that he was arrested. And he does not deny that he was arrested due to suspected domestic violence. But he insists he was never formally charged. And to Avenatti, there is a "marked, material difference … [between] being arrested [by police] on suspicion of having committed a crime and … actually being charged with a crime" in court.
There is a difference to lawyers. But I assess the statements in question "from the perspective of the average reader, not a person trained in the technicalities of the law." And charge "may be used in a popular sense as a synonym for accuse." Rouch v. Enquirer & News of Battle Creek Mich. (Mich. 1992) (finding a report that a plaintiff was charged with sexual assault was substantially true even though he was only arrested, not formally arraigned); see also Charge (def. 16a), Oxford English Dictionary (2d ed. 1989) ("accusation"). Plus, Avenatti was not merely accused—he was arrested and taken into custody. Police are supposed to have good reason to arrest people. So to the average reader, the "gist" and the "sting" would be the same had Defendants reported only that he was arrested for suspected domestic violence.
Indeed, throughout the broadcasts, Defendants used "charge," "allegation," and "accusation" interchangeably. After Hannity said that Avenatti faced a "serious charge," he noted that "[h]e is denying these allegations." So too on Trish Regan Primetime: "Mr. Avenatti has repeatedly denied the allegations and last time I checked, you're innocent until proven guilty, right?" And while the screen graphic on The Five said he was arrested on a "domestic violence charge," a host said only that he was "arrested on suspicion of domestic violence."
Avenatti has thus failed to state a defamation claim based on these remarks; any factual error was too small to count.
Other statements were non-actionable opinions:
Opinions that do not imply a false factual assertion are constitutionally protected. These statements cannot be proven right or wrong, so they cannot defame.
Take Arroyo's joke that Avenatti is familiar with "bull__." Or take Ingraham's ridiculing him for being an "arrest waiting to happen" and for having a "heck of a right hook." Though Avenatti complains about these remarks, he does not specifically allege that they are false. Nor could he. Their language and context reveal that they are opinions. Arroyo couched his comment with the qualifier "I think." Am. Compl. ¶ 84. After Ingraham's insult about his "right hook," she immediately said "I'm joking. It's a joke." When a statement is "clearly a mere joke … there is no defamation." And this "rhetorical hyperbole" is often used on cable news, particularly when politics is involved.
Opinions based on disclosed facts are often protected too. Avenatti is upset that Ingraham mocked him for being an "arrest waiting to happen." But she expressly based her opinion on the fact that "Senate judiciary chairman Chuck Grassley made a criminal referral [about] Avenatti … for making false statements to Congress." Listeners were "free to accept or reject" her opinion "based on their own independent evaluation of the facts." This statement is not defamatory.
Avenatti was "left with just three statements: (1) the victim was his estranged wife; (2) she was bruised with a black eye; and (3) he ran after her, saying, 'She hit me first.'" But he failed to provide sufficient reason to think that these statements were made with "actual malice," meaning knowledge that they were (or were likely to be) false:
But Avenatti's defamation suit cannot win on these statements either. He is undoubtedly a public figure. Indeed, his self-described media campaign and potential presidential candidacy certainly "invite[d] attention and comment." So he must plead actual malice: Defendants either knew their statements were false or made them with "reckless disregard" for their truth.
Yet all he provides are conclusory statements and implausible assertions. This is not enough…. Most of Avenatti's allegations are devoid of facts. He repeatedly alleges that "Defendants knew these statements to be false when they were made. And yet Defendants made them maliciously." But this merely restates the elements of actual malice.
True, he provides some facts for one challenged statement. In its first broadcast on the day of his arrest, Defendants claimed that an ex-wife was involved. But on the afternoon of the arrest, his two ex-wives publicly stated that he had not assaulted them. According to Avenatti, that means that Defendants knew that the victim was not his ex-wife but reported it anyway. But he has not claimed that Defendants learned of the ex-wives' denials before the initial broadcast. Indeed, they reported their denials the next morning. That makes it unlikely that Defendants had ever "purposeful[ly] avoid[ed] the truth."
As for the reports that the victim was bruised and Avenatti ran after her screaming, he pleads nothing specific. He simply alleges that Defendants learned their reporting, as a whole, was untrue from "other legitimate news outlets such as the Los Angeles Times, CNN, MSNBC and others." Yet he does not identify what Defendants learned from these "legitimate" outlets that cast doubt on their stories. So the allegation is too vague to plausibly show that Defendants acted recklessly….
Having failed to plausibly show that Defendants knew that their reporting was false, Avenatti next claims that they should have done more to look into the details of his arrest. He charges Defendants with "fail[ing] to conduct even the most basic research, inquiry, reporting and investigation." But "even an extreme departure from professional standards, without more, will not support a finding of actual malice." Tucker v. Fischbein (3d Cir. 2001) (Alito, J.).
To show that Defendants knew that they should be suspicious of his arrest, Avenatti spins an elaborate tale: Jacob Wohl, a known conspiracy theorist, had lobbed false allegations at other public figures. After Avenatti's arrest, Wohl publicly took credit for his downfall. So Defendants must have known that his arrest was a set-up.
True, courts may infer actual malice where a reporter has "obvious reasons to doubt the veracity of the informant or the accuracy of his reports," yet fails to investigate. St. Amant v. Thompson (1968). But Avenatti does not allege that Defendants used Wohl as a source. Even if they did know "the need to be extremely cautious when reporting any story … for which Jacob claimed responsibility," that demonstrates, at most, a potential failure to investigate. And that is not enough for actual malice. Harte-Hanks Commc'ns, Inc. v. Connaughton (1989).
And Avenatti also didn't allege "special damages" (basically, specific financial losses attributable to the libel), which he had to do under California law (which Judge Bibas had earlier held applies here):
California law requires that a plaintiff who seeks "damages for the publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast" ask for a correction within twenty days of his knowledge of the publication. Cal. Civ. Code § 48a(a). If he does not, all he can recover are limited "special damages." This retraction statute is "a substantive law limiting a plaintiff's recovery on a defamation claim," so it applies in federal court. Nunes v. CNN, Inc. (S.D.N.Y. Feb. 19, 2021).
Avenatti did not ask for a retraction. So his claim is limited to "special damages," which he must "allege and prove."But he has not done this either….
Avenatti dislikes how Fox News covered his arrest. But he cannot overcome the truthfulness of the gist of Fox's coverage—he was, after all, arrested for suspected domestic violence. Plus, he has not shown that Defendants knew, or deliberately ignored, any inaccuracies in their reporting. And he expressly disclaims the need to allege special damages, as he must under California law. Perhaps Avenatti can cure the actual malice and damages defects for some of his claims. So I will dismiss his complaint without prejudice.