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Free Speech

Delaware Supreme Court Rejects Carter Page's Lawsuit Against Yahoo!, HuffPost & Michael Isikoff


From today's majority opinion by Chief Justice Collins Seitz in Page v. Oath:

Dr. Carter Page, a public figure with ties to President Trump's 2016 campaign, claimed that Oath Inc.'s online news organizations published eleven defamatory articles about him in 2016 and 2017. Michael Isikoff authored a Yahoo! News article that forms the backbone of the amended complaint …. [Ten] other articles were written by employees at … and refer to the Isikoff Article …. The remaining seven articles were written by HuffPost non-employee "contributors" …. The articles discuss an "intelligence report" from a "well-placed Western intelligence source" with information that Page met with senior Russian officials and discussed potential benefits to Russia if Donald Trump won the presidential election.

The Superior Court granted Oath's motion to dismiss. It found that the Isikoff Articles and Employee Articles were either true or substantially true; Page was at least a limited purpose public figure, meaning he was required to plead actual malice by the individuals responsible for publication, and he failed to meet that standard; the fair report privilege for government proceedings applied; and Oath was protected for the Contributor Articles under the federal Communications Decency Act. Page appeals the Superior Court's judgment except the Superior Court's ruling that the Employee Articles were true.

We affirm the Superior Court's judgment. The Isikoff Article describes a federal investigation into a report about Page—an investigation that existed and was being pursued by the FBI. At a minimum, the article is substantially true, and as such, Page did not state a claim for defamation based on that article. Page also fails to state a claim for defamation with respect to the remaining articles. At oral argument, Page conceded that if the Isikoff Article is not defamatory, he loses on his remaining claims.

Page also failed to allege that the individuals responsible for publication of those articles acted with actual malice. Finally, Page does not contest the Superior Court's holding that the Employee Articles were true. Because these grounds dispose of Page's defamation claims, we do not address any of the Superior Court's other grounds for dismissal.

Justice Karen Valihura dissented:

Although I focus my dissent on just one of the eleven challenged articles, that article is the fulcrum of Page's Complaint. I disagree with the Majority that Page did not adequately allege that it is reasonably conceivable that Oath, acting through Michael R. Isikoff …, the author of the article dated September 23, 2016 entitled "U.S. intel officials probe ties between Trump adviser and Kremlin," published on Oath's Yahoo website …, acted with actual malice. I also disagree with the Majority that the Isikoff Article was substantially true. Finally, I disagree that the fair report privilege applies. It is well established that a person cannot "confer the privilege upon a third person, even a member of the communications media, by making the original statement under a collusive arrangement with that person for the purpose of conferring the privilege upon him." Page alleges a collusive arrangement here.