Gen. Michael Flynn's Brother v. CNN Libel Lawsuit Over Allegations of Being a "QAnon Follower"

A Magistrate Judge has just issued a Report and Recommendation recommending that the case be dismissed, on the grounds that the allegations were substantially true.

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.

Comments

[DaivdBehar]

Aside from hurt feelings, which are worth nothing, what was the factual damage to the plaintiff? Who caused it, an employer, a spouse, a club, a church? Sue them, not the publisher, who caused no factual damage.

[DaivdBehar]

Did the FBI investigate as a result of this report? Sue the FBI for investigation costs in time, money, and emotional distress.

Can Volokh understand this self evident point? No. I will not repeat what he is a poster boy for. I do not want to be rude.

[JasonT20]

Did the FBI investigate as a result of this report? Sue the FBI for investigation costs in time, money, and emotional distress.

I would think that being "investigated" could only be a cause of action along those lines if that investigation was premised on something demonstrably false and/or for something that is not a crime. Not to mention that the targets of such an investigation would have to show that they actually incurred costs of time and money.

[DaivdBehar]

The FBI is a Democrat political hit squad, to intimidate Republicans. It is worthless. It is allowing 100 million internet crimes. It is allowing millions of financial crimes. Overdose deaths are busting records at 90000, thanks to their kowtowing and service to the Chinese Commie Party. FBI agents are scumbag PC lawyers. Its liability would serve to shrink and to eliminate this scumbag lawyer agency.

[DaivdBehar]

Female FBI agent says, a dozen Arabs are taking jet pilot lessons. Instead of saying, go talk to them, scumbag PC lawyer supervisor shuts her down to avoid the appearance of Islamophobia. That scumbag supervisor should have been tried and executed for treason, on the spot, 20 years ago. To deter the scumbag lawyer profession.

[DaivdBehar]

Now, this lawyer scum enemy, the FBI, will investigate parents protesting degenerate policies of their school boards, under the Patriot Act, like jihadist terrorists. Do not investigate Arab pilot students, investigate patriotic parents protesting the sick policies of a school board. Fuck you, scumbag lawyer.

[Gandydancer]

EV drops the ball by failing to adequately describe the claimed tort. So, from the introduction to the decision,

Plaintiffs John P. (“Jack”) and Leslie A. (“Leslie”) Flynn (together, the “Flynns”), assert that Defendant Cable News Network, Inc. (“CNN”) defamed them when it displayed their image captioned with a chyron stating, “CNN Goes Inside a Gathering of QAnon Followers.”

I haven't read the decision beyond what he posted, but I'm willing to bet that when "Magistrate Judge [Sarah Cave] ultimately concluded that they couldn't show that the statements were substantially false" the judge's "conclusion" was a motivated one and the picture was in fact NOT taken at a "gathering of QAnon followers" by anything other than the tortured definition of "follower" the Judge tries to defend.

Saying that, it's hard to see a substantial claim for damages. CNN was lying, but just as when Rachel Maddow says "literally" no one ought to think CNN has much aquaintance with accuracy. And while the Flynns are only shown to have the most limited knowledge of QAnon the false allegation that they are followers seems likely to be harmless.

[Gandydancer]

... Suppose the Flynns had tweeted of Putin, "It would be nice to have a head iof state interested in defending our country's borders"? And CNN had posted a picture of a family gathering with a chyron reading "CNN Goes Inside a Gathering of Putin Followers”? "Substantially true"?

[mse326]

No because saying you like one policy of a person is not the same as being a follower.

But when you say you are a part of a group, then saying you follow the group is indeed substantially true.

[Gandydancer]

The Flynn's did not say they were followers of anything.

[mse326]

Jack tweeted: "Qanon is not violent or conspiracy. We are every day people seeking truth

[Rev. Arthur L. Kirkland]

Yeah, sure, but other than his express statement that he was part of QAnon, and his statement of oath-fealty on camera, and his attendance at a QAnon worship event, do you have any evidence that he was a follower of QAnon?

[Gandydancer]

I put YOU in the "brain-dead" category. See below.

[Gandydancer]

You have been misled by a corrupt or brain-dead judge. There is an the implied paragraph break between the two sentences, which the judge determinedly ignores, though she goes on to say, "By using the word "we," Jack included himself as one who "follows the opinions" of QAnon [this quote indicates an explicit distancing - see my Putin counterexample], and invited others who "share[d]" those opinions to join his comments.", which shows that it is there if you are paying attention.

[David Nieporent]

Yes, the judge "determinedly ignores" something that you yourself admit doesn't actually exist.

[Gandydancer]

As here, your misrepresentations are regularly effectively lies, liar.

[Gandydancer]

Here's my surmise:

1) CNN persuaded the Flynns to grant an interview.
2) The reporter accompanied them to some social event.
3) Nothing boroadcast-worthy was said by the Flynns.
4) Faced with a wasted get, the CNN team looked at the Flynn's social media and found the innocuous tweets quoted by the judge.
5) CNN ran with the spin, pointing with alarm at perfectly ordinary opinions, like MIT did at Abbot's mild demur from affirmative action.

I'm not saying the above is true. But if it is, what's the conclusion? (Other than that CNN is lying dirtbag central.)

[mse326]

Its always good to make up your own set of facts and admit you don't know if they are true as a way to criticize an organization for what you claim are lies

[David Nieporent]

He makes up his own law, so why not his own facts? (Only difference is that he doesn't admit that he doesn't know whether his fabricated law is true.)

[Gandydancer]

It is no answer to a hypothetical to claim that the premises are false. If engaged in actual conversation you answer the hypothetical and THEN address the truth of the premises. You two have signally failed to do this.

I am of course saying that CNN is an organization that lies congenitally, because it is, and I've applied that fact and other observations about it in reaching the conclusion that my hypothesis is credible.

But mse's claim that I asserted as fact that it was lying in this instance is itself a lie. Your endorsement of it is both stupid and probably (again, based on previous knowledge of your performance) a lie.

[mse326]

It's about whether something is substantially true, not 100% true. The "harm" is from being a follower of QAnon, by the plaintiff's own claim of harm. Being at the gathering doesn't really add any harm outside of following it. That is being said to be at the gathering, in this case, isn't defamatory. So a showing that they follow it would still be stubstantially true from the standpoint of what is the claimed defamatory statement

[Gandydancer]

I haven't read the file, but that the tweets are so heavily relied on tells me that the gathering had nothing to do with QAnon.

[mse326]

Even if so, that is irrelevant. The alleged defamation comes from saying they were followers of QAnon, not that they were at a gathering. So showing they were is all that is needed to for the alleged defamatory statement to be substantially true

[Gandydancer]

Again, the judge is quoted providing what I assume is the best proof that it is substantially true that they are "followers" of QAnon. Her argument is nonsense.

And, no, it is more defamatory to say that you take part in an opinion-motivated gathering of kooks than that you have, individually, some allegedly discreditable opinion. Saying that I am part of a militia is not the same as saying that I have strong views on the 2nd A.

[mse326]

What do you think him saying "we" when referring to QAnon means if not that he is a follower of QAnon?

[Gandydancer]

"What do you think him saying 'we'...”

See my comment about the implied paragraph break, above.

[mse326]

If the gathering did something or purported to do something other than just support QAnon then I'd agree, but there is no allegation that the gathering did anything. Being a part of a militia is more than having strong views on the 2nd A. Entering the Capitol on Jan 6 is more that having strong views on the reliability of the election. Looting, arson, and any other of crimes at the police protests is more than having strong views on police reform. Your analogy doesn't work because the formation of the group/gathering is more than just the views.

With no allegation that the gathing did anything or was about doing more than just believing in it then being at it or not really doesn't add anything. That is why I said in this case.

[Gandydancer]

You have missed the fact that there is no indication in the quoted material that the purpose of the gathering was to support QAnon.

[Gandydancer]

...LOL! Almquist below has apparently read deeper into the file and found that the Flynns weren't even AT the "gathering". And he implicitly provides a suggestion that the purpose of the story was to smear GENERAL Flynn with an association with QAnon. That hadn't even occurred to me, which is why I didn'yt include it in my hypothesis, but it makes perfect sense. As I said, CNN is partisan trash.

[Kenneth Almquist]

The plaintiffs in this case had no connection to the meeting, so nothing that CNN said about the meeting itself, whether true or false, could possibly libel the plaintiffs. In their reporting on the meeting, CNN states that “where we go one, we go all” is a QAnon slogan that was popularized by General Flynn. CNN backs up this statement with a video clip of General Flynn saying, “where we go one, we go all.” This is where the alleged libel occurs. In the video clip, the plaintiffs are seen standing next to General Flynn, thereby implying (according to the plaintiffs) that the plaintiffs are followers of QAnon.

That's why the events at the meeting are irrelevant to the case, but the plaintiffs' tweets supporting QAnon were sufficient to dismiss the case.

[Gandydancer]

No, they weren't. I've already debunked that.

The last sentence in your first paragrah makes no sense whatsoever. The actual implication of the picture is maybe that Gen. Flynn is a QAnon followerrather than running in the other direction.

And the libel was not what you say it was. I'd already posted the relevant sentences from the intro to the kritarchical opinion on this page, so you have no excuse for misreprensenting that.

Plaintiffs John P. (“Jack”) and Leslie A. (“Leslie”) Flynn (together, the “Flynns”), assert that Defendant Cable News Network, Inc. (“CNN”) defamed them when it displayed their image captioned with a chyron stating, “CNN Goes Inside a Gathering of QAnon Followers.”

The juxtoposition implies that the Flynns were at the meeting, and you can see an effective implication in mse's argument above.

[Gandydancer]

...that it was an effective implication...

Further proof of this can be seen in Brett Bellmore's question below that also assumes the Flynns were at the gathering.

More examples I haven't read yet are probably on this page. CNN's success in lying probably extends to convincing many that they've seen proof that GENERAL Flynn is a follower of QAnon.

[David Nieporent]

It’s about whether something is substantially true, not 100% true. The “harm” is from being a follower of QAnon, by the plaintiff’s own claim of harm. Being at the gathering doesn’t really add any harm outside of following it.

You've been misled by Gandydancer's manufactured claims despite his admitted failure to actually learn anything about the facts of the case before talking. CNN did not claim that the Flynns were at a gathering, and the Flynns did not sue about a claim that they were at a gathering. The Flynns' suit was about CNN truthfully labeling them as QAnon followers.

[fafalone]

Tortured definition?

Let me guess, your standard for "Qanon follow" is "gets 'I FOLLOW QANON' tattooed on their forehead", yet anyone questioning anything the Republican party does is surely conclusively a SJW socialist.

"Qanon is not violent or conspiracy. We are every day people seeking truth … Qanon's, share and tell your story"

You're just being plain fucking stupid claiming that doesn't make an accusation of being a Qanon follower true.

[Rev. Arthur L. Kirkland]

"And while the Flynns are only shown to have the most limited knowledge of QAnon the false allegation that they are followers . . . "

Totally not followers.

[Gandydancer]

... Maddow, on the other hand, actually did say something libellous. So there's that.

[santamonica811]

No, she did not. So, there's that.

[Gandydancer]

As a member of Team Stupid it is possible that you are merely ignorant, but also probable that you are simply lying.

Maddow said the site was "literally" printing Russian propaganda on no other basis than that it had paid an (American, I think) stringer who had also sold a story to RT.

The site made a mistake in how it pursued the suit. They should have financed a suit by the stringer, whose livelihood was threatened by Maddow's declaration that anyone who employed him was outing itself as a catspaw of Putin.

Maddow was adjudged not to have committed libel on the gounds that her delivery of the news could not possibly, given that it was CNN, be taken "literally" as an assertion of fact.

[Brett Bellmore]

If CNN alleged that Flynn's brother attended a QAnon gathering, and CNN only prevailed on the basis that Flynn's brother had tweets that indicated some sort of membership in QAnon... Isn't CNN at some risk of libel suits by everybody who attended the same gathering, and doesn't have any QAnon related tweets?

[Rev. Arthur L. Kirkland]

"Isn’t CNN at some risk of libel suits by everybody who attended the same gathering, and doesn’t have any QAnon related tweets?"

In bigoted birthers' right-wing fever dreams, sure!

You should donate to the appropriate legal fund to help those poor QAnoners vindicate their honor and smite the evil modern, educated, reasoning people at CNN.

[Brett Bellmore]

I suppose failing to name those people would be some protection; Can you defame somebody without naming them, by labeling an event they attended in a defamatory way?

[Rev. Arthur L. Kirkland]

Are you referring to the event at which participants were recorded singing "where we go one, we go all?" At which the "Q shaman" was displaying a "Q sent me" sign? At which disgraced former Gen. Flynn was recorded reciting "where we go one, we go all?"

Or a different gathering of delusional right-wing QAnon-class losers?

The magistrate judge's report -- which credits the factual allegations of the amended complaint as true, without evidence, for procedural reasons -- depicts all of the Flynns as lying, deluded, anti-American wingnuts.

Is disgraced, hapless Republican lawyer -- and (believe it or not) Federalist Society speaker on professional responsibility -- Sidney Powell still representing the Flynn interests, or were the Flynns required to find another lawyer because she lost her license to practice law? I believe I remember a judicial referral to bar disciplinary authorities but can not recall whether disbarment has occurred yet.

Carry on, clingers . . . but only so far as your better permit, as usual.

[Gandydancer]

You're not really asking the persistently defamatory Kookland about the law of defamation, are you?

It is sufficient for defamation that the individual defamed be readily identifiable to some. Thus in the CApitol Steps hoax involving that fake Vietnam Vet "shaman" the kids were defamed by the accusations of racism even though not named.

As I've said, this "gathering" might so far as I know actually have been of QAnon followers. The defamation involved the false implication that the Flynns were there.

[Rev. Arthur L. Kirkland]

"The defamation involved the false implication that the Flynns were there."

The magistrate judge's report indicates the Flynns' defamation claim involved the assertion that the Flynns were QAnon followers, not any claim concerning event attendance. Is there any evidence -- a quotation from the amended complaint, perhaps -- that suggests the magistrate judge's report was wrong or incomplete? If not, that statement is false.

[Gandydancer]

Once again, you Stuipdly lie. For the THIRD time:

Plaintiffs John P. (“Jack”) and Leslie A. (“Leslie”) Flynn (together, the “Flynns”), assert that Defendant Cable News Network, Inc. (“CNN”) defamed them when it displayed their image captioned with a chyron stating, “CNN Goes Inside a Gathering of QAnon Followers.”

[Gandydancer]

...Stupidly...

It's proven up and down this thread that the natural understanding of the chyron is that the Flynn's were part of a gathering of QAnon followers and not merely aware of and in partial agreement with with QAnon.

[Rev. Arthur L. Kirkland]

It appears Gandydancer figures he understands the claims being advanced by the Flynns better than do the lawyers advancing those claims for the Flynns.

Other than that, though . . . great comment!

[Gandydancer]

Not if it was actually a gathering of QAnon believers.

You, too, have apparently been successfully misled by the chyron. The Flynns were not (I am taking Allmquist's word for this) even AT the "gathering". Their only function in the story was to serve as a vehicle for smearing GENERAL Flynn with an alleged indirect associate with QAnon.

[Gandydancer]

...association...

[David Nieporent]

You mean disgraced ex-general Flynn, not "General Flynn."

[Gandydancer]

I don't have a particularly high opinion of him, but he's not disgraced and I see no reason to withdraw the honorific on YOUR say-so.

[Rev. Arthur L. Kirkland]

"Not disgraced," Gandydancer-style.

Flynn pleaded guilty -- twice, if I recall correctly -- to selling out his country. No wonder character-deprived clingers who hate modern America love him.

[David Nieporent]

The reason to withdraw the honorific is that he's no longer a general, so he should not be given the title of general.

[David Nieporent]

Oh, and as for "not disgraced," you're mistaken. He was fired once for being a loon, fired again for lying about his relationship with the country's enemies, admitted under oath to being a criminal, and then spent his free time calling for military coup in the United States and endorsing a cult that thinks children are being molested in the basement of pizza parlors that don't have basements.

[David Nieporent]

If CNN alleged that Flynn’s brother attended a QAnon gathering,

CNN didn't allege that, and the lawsuit was not about that. The lawsuit was about CNN labeling the Flynns as QAnon followers. CNN only prevailed on the basis that the Flynns actually are QAnon followers.

[Gandydancer]

A false conclusion by the kritarchess.

[David Nieporent]

You haven't even read the legal papers — not that you'd understand them if you did, unless Josh Blackman said something you liked about them, in which case you'd repeat it as if it were accurate.

[ReaderY]

Gandydancer’s thinking here is very instructive. He comes up with a set of pontential facts, and a way of interpreting the Flynns’ tweet, by which they aren’t QAnon followers. If we had a legal system where CNN commits libel unless it can prove its statements true beyond any possibility of a doubt — no conceivable set of explantory facts, no conceivable innocent interpretation — perhaps the Flynns might win.

But we don’t live in such a system. We live in a system where every plaintiff bears the burden of proving the defendant’s conduct wrongful, and where the First Amendment imposes special, greater burdens on libel plaintiffs. In our system, doubts are resolved in the defendant’s favor — CNN’s — not the plaintiff’s favor, the Flynn’s.

Gandydancer completely fails to grasp this. Subtleties such as burdens of proof mean nothing to him. He instead exhibits traits of an increasingly common tendency. If he wants to believe something, if he’s decided to believe something a priori, then it’s true unless it’s absolutely imossible for it to be true. Even a remote possibility completely vindicates it and completely evicerates all evidence against it.

At least we have somebody with us who thinks this way, able to demonstrate to us how he thinks. Since our society is increasingly filling with people who think this wy, it’s important for us to understand.

We also see an examle of another trait of the mentality. Constitutional rights and legal niceties are no obstacle at all to getting ones way.

[ReaderY]

One has to remember that it’s not just that such a person’s personal friends are presumed right until the evidence is so overwhelming that no conceivable possibility of a doubt can exist, so such a person’s friends can never be found guilty or punished for anything in peactice.

It’s that such a person’s personally enemies are presumed wrong, and will get punished accordingly, on the same basis.