The Volokh Conspiracy
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Judge: Criticisms of Epoch Times Were Substantially True or Opinion, Not Libel
“Like it or not, news analysis is often delivered with plenty of English on the ball in service of an ideological agenda and market viability. Whether such practices contribute positively to delivering our species closer to the truth is a question for philosophers. It is not enough to support a defamation claim.”
From today's decision by Judge Lance Walker (D. Me.) in Cheng v. Neumann, which seems correct to me:
Plaintiff Epoch Group, Inc. … is a New York corporation that publishes the online newspaper the Epoch Times. Plaintiff Dana Cheng is a New York resident. She is also an officer of Epoch Group and a founder of the Epoch Times.
Defendant Maine People's Alliance is a Maine corporation and publishes the online media outlet the Beacon. Defendant Dan Neumann is a Maine resident who writes for the Beacon. On June 16, 2021, the Beacon published an article written by Neumann and titled "Maine GOP hosts speaker present at Jan. 6 Capitol Assault" …. The Article described how the Maine Republican Party, Gray Republican Town Committee, and Christian Civic League hosted an event in Maine that featured a livestream address by Cheng.
The Article featured Cheng's image at the top of the page and identified Cheng in the opening paragraph as "a far-right media personality and conspiracy theorist who has said she was among the supporters of former President Donald Trump who were present at the riot at the U.S. Capitol on Jan. 6." The Article identified the Epoch Times as a "right-wing multi-language newspaper and media company."
In support of these opprobrious epithets the Article went on to quote or paraphrase some of Cheng's remarks made during her livestream with the Grey Republicans and during a recent radio interview aired on Denver radio station KLZ 560 AM and presently available by podcast at the Kim Monson Show. Concerning the latter, the Article reported that Cheng stated that the January 6 violence was perpetrated by the "antifa movement" rather than by supporters of President Donald Trump.
Concerning the Epoch Times, Defendants described its media content as including articles questioning the results of the 2020 election, promoting anti-vaccine misinformation, and promoting the QAnon conspiracy theory. Defendants reported that the New York Times has described the Epoch Times a "global-scale misinformation machine." They also characterized and quoted some of Cheng's remarks to the Grey Republicans.
Defendants first characterized Cheng's remarks as "reminiscent of the Red Scare" because Cheng alleges that communist plotters influence "the highest ranks of U.S. government, academia and media." Defendants then quoted Cheng's remark that "some New York Times reporters used to work for Chinese Communist Party media," and that "mainstream media" is "greatly influenced by communist propaganda."
Defendants also reported that the Epoch Times "is partially funded by far-right media financier Robert Mercer." However, after publication, the Beacon issued a correction stating that one of Mercer's employees, not Mercer himself, had contributed to the Epoch Times….
Cheng alleges that the Article's characterizations of her as a "far-right media personality" and "conspiracy theorist" present "at the riot at the U.S. Capitol" were false and defamatory, and that the Article falsely characterized statements Cheng made during her radio-podcast appearance with Kim Monson…. Epoch Group alleges that the Article's characterization of the Epoch Times as a "far-right" newspaper that was funded by Robert Mercer and promoted misinformation about vaccines, QAnon, and the 2020 election was false and defamatory….
In addition to falling short of the high bar set by the actual malice standard, with the exception of one otherwise non-actionable statement concerning Robert Mercer, Plaintiffs cannot demonstrate a substantial basis to infer that any of the allegedly libelous statements are both statements of fact (element 1) and false (element 4). {The Article's assertion that Robert Mercer helped to fund the Epoch Times is the sort of "minor inaccurac[y]" whose absence would not alter the Article's overall message concerning Dana Cheng and the Epoch Times and so cannot support their claim for defamation.} Some of the challenged statements are not actionable because they are "substantially true." In this category are Defendants['] descriptions of Cheng's January 6 presence at the Capitol and her statements during the Kim Monson Show. Defendants accurately reported that Cheng was present at the January 6 Capitol riot, that she did not enter the Capitol building, and that she subsequently attributed the riot to anti-fascist activists. The truth of Defendants' statements is evident in the record before me. In the radio interview transcript Plaintiffs attached to the Complaint, Cheng admitted to having been at the Capitol when rioters broke into the building, and she claimed there was evidence that anti-fascists were responsible for the violence. Plaintiffs may dispute the Defendants' characterization of these facts in the Article, or the negative inference Plaintiffs may justifiably believe Defendants wished to elicit from their readership, but they cannot dispute the baseline veracity of the reporting.
As for Defendants' characterizations of Cheng as a far-right conspiracy theorist and the Epoch Times' as a promoter of right-wing ideas, assuming that these aspersions falsely malign Plaintiffs' media activity, the statements nevertheless were not statements of "fact" but rather commentary about what the facts in the article suggested to Defendants and might suggest to an objective outsider….
I begin with Defendants' characterization of the Epoch Time as a promoter of certain ideas. As a matter of fact, the Epoch Times has published articles rebuffing the prevailing scientific position on vaccination and reporting on the QAnon theory that, perhaps without exactly endorsing of those viewpoints, work to encourage and develop the patronage of readers who share these heterodox perspectives.
Consequently, when Defendants reported in the Article that the Epoch Times "promoted anti-vaccine misinformation and . . . QAnon," they conveyed to the reader an interpretation of existing facts associated with the publication record of the Epoch Times, i.e., that the Epoch Times has published articles appealing to patrons who dispute the efficacy of vaccination programs and the legitimacy of the 2020 election, as well as articles unconcerned with the trustworthiness of purported national security leaks posted to anonymous online message boards. If Epoch Times' reporting in this vein is not literally "promotion," as Plaintiffs assert, then it can fairly be regarded as reporting that doles out an alternative narrative simply to feed market demand for the same. Such conduct can fairly be regarded as "promotion" in the mind of an objective outsider.
Similarly, to the extent that Plaintiffs argue for a more nuanced reading of the challenged statements—that ascribing to the Epoch Times an anti-vaccine or pro-QAnon worldview is not just a factual statement regarding the paper's contents, but an implicit characterization of the paper as irresponsible or disreputable—their claim fares no better. Indeed, it merely reinforces the point I have been making thus far. This kind of value-laden, journalistic perspective is not a statement of fact. Belief or disbelief in the mind of the reader about Defendants' subjective characterizations is a function of the reader's own political orientation, a phenomenon that is notoriously metaphysical and not neatly reduced by a jury verdict form to test the truth.
This brings us to the Article's characterization of Cheng as a far-right conspiracy theorists and the Epoch Times as a right-wing media outlet. It is understandable that these pejoratives would be offensive to a journalist or media outlet seeking to project an air of objectivity. However, "rhetorical hyperbole" and even "vigorous epithets" are not actionable when the content of a publication, "as a whole," makes it "clear to the reasonable reader or listener that the accusation is merely a personal surmise built upon th[e] facts."
So it is here. The name calling, however offensive to Plaintiffs, was an expression lacking in "precise meaning" and clearly packaged to convey to the reader the author's judgment on the significance of the otherwise substantially true statements contained elsewhere in the Article. Like it or not, news analysis is often delivered with plenty of English on the ball in service of an ideological agenda and market viability. Whether such practices contribute positively to delivering our species closer to the truth is a question for philosophers. It is not enough to support a defamation claim.
The Epoch Times' appeal to readers interested in QAnon as something more than a conspiracy theory, like its appeal to readers holding an anti-vaccine perspective, invites critical commentary by persons for whom these perspectives are offensive or outlandish. Whatever the proper political label is for readers of these persuasions, it has become a shorthand to describe them as falling on the right of the spectrum, somewhere outside the moderate or mainstream middle ground, if only to set them apart from the stereotypes brought to mind by the equally facile left-wing conspiracy theorist label. In this way, the right-wing label serves a communicative purpose for Defendants and their readers, even though it is at best a low-resolution caricature and may not hit the bullseye when it comes to describing the media objectives of the Epoch Times and Dana Cheng.
Whether epistemologically sound or not, media's usage of labels like right-wing and conspiracy theorist is a product of our times and our political culture. The meaning of these words is supplied by "the broader social context and surrounding circumstances," which "signal" to readers that what is being read is something other than a statement of fact. And because the Epoch Times has published media content having a tendency to excite or pander to so-called right-wing sentiment, Defendants' use of these labels to describe not only the Epoch Times itself, but also Dana Cheng, an Epoch Times founder and a media participant in her own right who characterizes mainstream American media as communist-influenced, falls under the protection of New York law governing the use of hyperbolic rhetoric and vigorous epithets concerning persons and topics of public interest….
