The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The detailed recommendation from Magistrate Judge Sarah Cave (which District Judge Gregory Woods will now consider) came in Flynn v. CNN (S.D.N.Y.). The plaintiffs (the brother and sister-in-law of the retired Lieutenant General, who served briefly as President Trump's National Security Advisor) prevailed on some issues: The Magistrate Judge concluded that they weren't limited public figures, and that CNN's statements were "of and concerning them." But the Magistrate Judge ultimately concluded that they couldn't show that the statements were substantially false:
The Flynns' tweets and retweets reflect that they meet the dictionary definition of follower in the sense that they have "follow[ed] the opinions" of QAnon. For example, on or about August 21, 2020, Jack tweeted: "Qanon is not violent or conspiracy. We are every day people seeking truth … Qanon's, share and tell your story." By using the word "we," Jack included himself as one who "follows the opinions" of QAnon, and invited others who "share[d]" those opinions to join his comments. The same day, Jack retweeted the image of "Q" over "WHERE WE GO ONE WE GO ALL," and stated, "If this means you believe in the constitution and equal justice under the law then this works for me."
Similarly, on August 20, 2020, Jack tweeted: "There is nothing wrong with QAnon. Just People doing their own research and learning independence of thought to find the truth." He added, "I advocate for the Constitution and Bill of Rights … if Q does too~No harm no foul." In a May 9, 2020 post, Leslie forwarded to Jack a tweet that included both a bold "Q" and "#WWG1WGA." Thus, the Flynns' own statements indicate that it was "substantially true" to state that they "follow[ed] the opinions" of QAnon.
As to the third dictionary definition, "one that imitates another," both Flynns' Twitter feeds include instances in which they retweeted or liked posts featuring "Q" or "QAnon" in the Twitter handle or the text of the post itself. Further, the Flynns do not dispute that they said the phrase, "where we go one we go all." Although they contend that their use was innocuous, the connection between the phrase and QAnon is a matter of public record, with at least one federal court recognizing the "association of this phrase with QAnon." United States v. Languerand, No. 21 Crim. 353 (JDB), 2021 WL 3674731, at *3 n.8 (D.D.C. Aug. 19, 2021) (citing Will Rahn & Dan Patterson, What is the QAnon conspiracy theory?, CBS NEWS (Mar. 29, 2021, 3:36 PM), https:/www.cbsnews.com/news/whatis-the-qanon-conspiracy-theory/). Indeed, the August 21, 2020 tweet that the Flynns include in the AC shows an image of the letter "Q" over the phrase "where we go one we go all," as to which Jack then commented, "this works for me."
Because the Flynns' Twitter feeds contradict their allegation that "Jack did not use QAnon slogans or code language or retweet users because they had a 'Q' in their handle," (the Court need not credit this allegation in determining the plausibility of their claims. Applying at least two of the dictionary definitions of follower, then, the Flynns' own statements show that they followed the opinions of and imitated QAnon such that CNN's statement that they were QAnon followers was substantially true and not defamatory. Having said, in their own words, that QAnon's principles "work for" them, the Flynns cannot turn around and characterize CNN's making the same statement as defamatory.
In opposition to the Motion [to Dismiss], the Flynns cite several cases for the proposition "that words or conduct falsely implying an association or connection between the plaintiff and a violent extremist group, like QAnon, is defamatory." The Court agrees that falsely implying a connection to a violent extremist group can be defamatory — but as set forth above, CNN's statement connecting the Flynns to QAnon is not substantially false. By their own statements, both in the AC and in the Twitter feeds that the Flynns invited the Court to consider, the Flynns connected themselves to QAnon, and therefore, cannot plausibly allege that CNN's statements were substantially false.