The Volokh Conspiracy
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I blogged about the Magistrate Judge's decision, which would have thrown out the entire case on the grounds that the allegations were substantially true; today's decision (Flynn v. CNN) by District Judge Gregory H. Woods (S.D.N.Y.), however, takes a different approach:
On February 3, 2021, Defendant Cable News Network ("CNN") aired a report entitled "CNN Goes Inside A Gathering of QAnon Followers." The report included a brief clip of Lieutenant General Michael Flynn proclaiming, "where we go one, we go all." Plaintiffs John P. ("Jack") and Leslie A. Flynn (collectively, "the Flynns") are shown in the clip standing next to General Flynn, who is Jack's brother. The Flynns brought claims of defamation and false light against CNN, alleging that they are not followers of QAnon. CNN moved to dismiss the Flynns' claims, arguing that the Flynns' Twitter activity establishes that they were QAnon followers.
On October 22, 2021, Magistrate Judge Sarah L. Cave issued a Report and Recommendation (the "R&R") granting CNN's motion to dismiss the Flynns' claims with prejudice. The Court adopts the R&R in part and rejects it in part. Because the Flynns have not plausibly pleaded special damages or that CNN's statements were defamatory per se, the Flynns' defamation claim is dismissed. However, the Flynns sufficiently allege a false light claim. For those, and the other reasons set forth below, CNN's motion to dismiss is GRANTED in part and DENIED in part….
The Flynns object to Judge Cave's conclusion that the Flynns' tweets establish that they were QAnon followers. Whether the Flynns were QAnon followers, and in particular, whether the Flynns were "followers" as that word is understood in the context of CNN's publication, is a highly fact-intensive inquiry. Here, the Flynns specifically allege that they are not QAnon followers and allege that Jack's tweets show that he "embraced the Constitution and equal justice under the law … not the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon" and that he has "denied basic tenets of the QAnon movement."
At the motion to dismiss stage, the Court cannot discredit these factual allegations and must draw all reasonable inferences in the Flynns' favor. Further, although "[t]he truth of factual allegations that are contradicted by documents properly considered on a motion to dismiss need not be accepted," the Flynns' tweets do not conclusively contradict their factual allegations. Even though the tweets express support for QAnon and are therefore evidence that the Flynns were QAnon followers, the Court cannot weigh evidence in deciding a motion to dismiss. Instead, the Court's task is to assess the legal feasibility of the complaint.
Because the Court accepts the Flynns' allegation that they are not QAnon followers as true, the Flynns have plausibly alleged that CNN's statement was false. Consequently, the Flynns have also plausibly alleged that CNN's statement was defamatory…. "[F]alsely implying a connection to a violent extremist group can be defamatory." …
[But t]o adequately plead their defamation claim [under Rhode Island law], the Flynns must either plead special damages, or plead that CNN's statements are actionable as defamation per se. "[D]efamation per se is distinguished from defamation because in the former, 'a plaintiff can establish liability without a showing of special or pecuniary damages because those damages are presumed.'" "This presumption rests on the fact that in a defamation per se situation, the statements are so egregious and reputation shattering that there can be no question that the defamed party's reputation suffered as a result."
The complaint fails to allege sufficient facts to establish that the Flynns suffered special damages. To establish special damages the Flynns must allege actual economic harm.
Although Jack claims that he is "afraid that he will be terminated," the complaint does not contain any facts to support that the Flynns have suffered any actual economic harm….
The Flynns also fail to adequately plead that CNN's statements were defamatory per se…. "To be actionable as [defamation] per se—without proof of special damages—the false statement must impute to the other: (1) a 'criminal offense,' (2) a 'loathsome disease,' (3) a 'matter incompatible with his business, trade, profession, or office,' or (4) a 'serious sexual misconduct.'" For defamation affecting a business, "a statement is defamatory per se if it charges improper conduct, lack of skill, or integrity in one[']s profession or business, and is of such a nature that it is calculated to cause injury to one in his profession or business." "[T]he disparaging words must affect the plaintiff in some way that is peculiarly harmful to one engaged in his trade or profession; disparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality is peculiarly valuable to the plaintiffs business or profession."
Here, the complaint alleges that CNN's statements "accuse and impute to Plaintiffs an unfitness to perform the duties of an office or employment for profit, including being members of a dangerous, violent, insurrectionist, domestic terrorist organization." The Flynns argue that "[b]y implying that the Flynns are prone to violence, lack good judgment and harbor extremist views, CNN has cast them as the opposite of good business people." The Flynns have not alleged any facts suggesting that these qualities are peculiarly valuable to Jack as a General Manager of a seafood processing business, or to Leslie as a stay-at-home mother. Instead, the defamation alleged by the Flynns is disparagement of a general character that would be equally discreditable to all persons, which is not actionable per se under Rhode Island law. Because the Flynns failed to plausibly allege that they suffered special damages or that CNN's statements were defamatory per se, CNN's motion to dismiss the Flynns' defamation claim is granted….
[But f]or the reasons described above, the Flynns have plausibly alleged that CNN published a false fact which implies an association which does not exist—that the Flynns were QAnon followers. CNN does not dispute that the Flynns have adequately pleaded the other elements of a false light claim. Accordingly, the Flynns have adequately pleaded a false light claim. See 9 R.I. Gen. Laws § 9-1-28.1(a)(4). CNN's motion to dismiss the Flynns' false light claim is denied.
The Rhode Island false light statute, which the court cites in the last paragraph, reads:
It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include … [t]he right to be secure from publicity that reasonably places another in a false light before the public [which covers situations where] …
(A) There has been some publication of a false or fictitious fact which implies an association which does not exist;
(B) The association which has been published or implied would be objectionable to the ordinary reasonable man under the circumstances.