The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

U.S. Senate Candidate Alan Grayson Loses Libel Lawsuit

Criticism of Grayson (who's now running in the 2022 Florida Senate primary) in his losing 2018 House campaign was based on "articles by independent, reputable sources," and there wasn't clear and convincing evidence that the defendants knew their statements were false or likely false (the so-called "actual malice" standard).


From Grayson v. No Labels, Inc., decided today by Judge Paul Byron (M.D. Fla.):

This [libel] case arises from the August 28, 2018, Democratic Party Primary Election for a seat in the United States House of Representatives for Florida's Ninth Congressional District, in which Darren Soto defeated former Congressman Plaintiff Alan Grayson….

There are two categories of allegedly defamatory statements at issue. The Court examines these categories in turn and ultimately concludes that summary judgment in favor of Defendants is proper because there is no clear and convincing proof of actual malice….

[A.] The First Category: Plaintiff's Conduct as a Former Congressman

First, the Second Amended Complaint contests two print advertisements, or "mailers," containing the following statements: "Congressional Ethics Investigation Found Alan Grayson Abused His Office for Financial Gain"; "A Congressional Ethics Investigation found evidence that Alan Grayson Abused His Position in Congress to enrich himself"; "as a congressman, he … [h]id income on his public disclosures" and "[u]sed taxpayer resources to conduct his high-risk investor scheme"; "Alan Grayson Used His [Congressional] Office For His Own Financial Gain." The Second Amended Complaint describes the first mailer as a picture of Plaintiff lounging on the beach in the Cayman Islands with a cocktail. It describes the front of the second mailer as a picture of a figure striding towards a jet bound for the Cayman Islands, an attaché case in hand. On the back, the open attaché case reveals stacks of cash and Plaintiff's passport photograph, with dollar signs replacing his eyes.

The Second Amended Complaint also alleges that the same content appeared online, alongside other statements that Plaintiff: "used international government travel to drum up business for his hedge fund"; "used Congressional staff to work for the fund" (omitting the fact that the staffer worked for the fund when Plaintiff was not a member of Congress); and called for a reporter's arrest after the reporter asked Plaintiff some questions (omitting the fact that Plaintiff called for the reporter's arrest because the reporter repeatedly chest-bumped him in an ambush interview)….

Both mailers cite to a December 18, 2015, report by the Office of Congressional Ethics ("OCE") and encourage readers to review it themselves and "check the facts" in three different places. As is relevant here, the nearly 1,000-page OCE report, also attached to Defendants' brief, finds "substantial reason to believe" that: Plaintiff "improperly allowed the use of his name by four entities connected to [his] hedge fund," including entities in the Cayman Islands, "and received compensation through management fees"; Plaintiff "improperly omitted information related to his assets, unearned and earned income, reportable agreements and positions from his [annual financial] disclosure statements"; and "[Plaintiff's] congressional staffer improperly used official resources for unofficial purposes, including the use of staff time and resources to perform work for [his] hedge fund."

In addition to the OCE report, one of the mailers cites to a June 30, 2015, Politico article, "Grayson hedge funds skirt ethics rule," and Defendants attach the article—which they assert has not been retracted and remains available online—to their brief. In it, Politico reports that Plaintiff managed "hedge funds that use his name in their title[s]," "two of which are based in the Cayman Islands," "a practice prohibited by congressional ethics rules designed to prevent members from using their elected post for financial gain." Defendants also attach a February 11, 2016, New York Times article, "Alan Grayson's Double Life: Congressman and Hedge Fund Manager," to their brief, again asserting that it has not been retracted and remains available online:

This highly unusual dual role—a sitting House lawmaker running a hedge fund, which until recently had operations in the Cayman Islands—has led to an investigation of Mr. Grayson by the House Committee on Ethics. The inquiry has become public, but emails and marketing documents obtained by [The New York Times] show the extent to which Mr. Grayson's roles as a hedge fund manager and a member of Congress were intertwined, and how he promoted his international travels, some with congressional delegations, to solicit business.

As to their statements regarding the incident between Plaintiff and the reporter, Defendants attach July 2016 articles by Politico, The Washington Post, Orlando Weekly, and Vanity Fair,to their brief, once more asserting that these reports have not been retracted and remain available online. Thus, Defendants correctly contend that their reasonable reliance on previously published reports from these independent, reputable sources for all their advertisements, as well as their citation to some of these sources in the mailers, rebuts the presence of actual malice….

[Plaintiff's] purported "proof" of actual malice consists of:

  • No Labels, Inc.'s boast to donors that it could destroy Plaintiff's political career.
  • An overview of the donations received by and the transfers among Defendants during the 2018 election, accompanied by Plaintiff's speculations that Defendants used this money to publish the allegedly defamatory statements against him.
  • Plaintiff's observation that he and one of Defendants' major donors, Fox News, "had attacked each other for years."
  • Emails from Defendants' counsel and opposition researcher evaluating various advertisements for potential defamation liability, most of which advise the qualification of certain statements and the accurate quotation of source materials, and Plaintiff's commentary that Defendants failed to heed this advice in numerous allegedly defamatory publications.
  • Plaintiff's statement that although Defendants were aware that the OCE report does not contain final conclusions regarding his guilt or innocence of the ethical violations alleged against him, their allegedly defamatory publications "indicate the opposite."
  • Plaintiff's counsel's cease and desist letter to Defendants, "informing them that their attacks were false and defamatory," and Plaintiff's remark that "[t]here is no indication that the Defendants did anything to check … their facts after this."

As a preliminary matter, Plaintiff's various theories and conjectures regarding Defendants' liability are insufficient at the summary judgment stage of this proceeding to carry his case, and Plaintiff's counsel's cease and desist letter characterizing Defendants' publications as defamatory does not make them so. And, as to the actual pieces of evidence referenced, Plaintiff's disorderly citation to the record makes it impossible for the Court to locate them. The Court is under no obligation to sift through the record and, in fact, doing so would be improper, as the Court cannot remediate haphazard advocacy.

But, even accepting Plaintiff's professions at face value, this is far from a demonstration of actual malice. At most, this "evidence" merely shows ill will in the ordinary sense of the term and, perhaps, a deviation from professional publishing standards. Thus, there is no clear and convincing proof that Defendants published the first category of allegedly defamatory statements with actual malice, and summary judgment in favor of Defendants as to these publications is proper.

[B.] The Second Category: Allegations of Abuse Against Plaintiff by Lolita Carson-Grayson, His Ex-Wife

Next, the Second Amended Complaint generally alleges that Defendants knew Lolita Carson-Grayson's charges of abuse against Plaintiff were false and, nonetheless, published her statements, omitting her recantation of those allegations. However, the Second Amended Complaint does not state what allegations of abuse were recanted by Lolita Carson-Grayson, attach the challenged publications, or otherwise describe the allegedly defamatory statements at issue with any specificity.

In their brief, Defendants list the allegedly defamatory statements (apparently) at issue and attach the (supposedly) challenged publications: "Her  husband came up behind her and hit her on the back of the head with a large book"; "Mr. Grayson … hit her in the back of her head … and told her 'I'm gonna kill you'"; "Alan Grayson's ex-wife repeatedly reported Grayson to police for verbally and physically abusing her over two decades"; "Alan Grayson, serial abuser"; "Two decades of reported abuse. Alan Grayson: enough is enough." Again, many of the challenged publications cite to articles by independent, reputable sources and encourage readers to review these sources themselves and "check the facts." And, again, Defendants assert that they reasonably relied on these previously published reports of Lolita Carson-Grayson's allegations against Plaintiff, particularly a July 26, 2016, Politico article titled "Grayson's ex-wife claimed domestic abuse over two decades." As part of the article, Politico published police reports and medical records provided by Lolita Carson-Grayson that seem to corroborate her allegations.

In response, … Plaintiff then provides a completely irrelevant narrative of the tumultuous annulment proceedings between him and his ex-wife, announcing that "[w]ithout question Lolita Carson-Grayson is a vicious, violent, world-class liar." Plaintiff's opinion of his ex-wife's veracity is immaterial to the question of Defendants' state of mind when publishing this undefined category of allegedly defamatory statements.

As evidence that Defendants knew Lolita Carson-Grayson is a "liar," Plaintiff cites to an opposition research report and an email exchange between Christine Dolan, a consultant for No Labels, Inc., and Nancy Jacobson. Once again, Plaintiff's citations to the record are incorrect and incoherent. Even so, the highlighted excerpts from this "evidence" in Plaintiff's brief only discusses an altercation in 2014 between Plaintiff and Lolita Carson-Grayson in which a video proved that she was the aggressor. Thus, at most, Plaintiff's "evidence" shows that Defendants were aware that Lolita Carson-Grayson instigated the domestic violence incident in 2014 and lied about her role in the event; it does not show that Defendants were aware she was the aggressor in every domestic violence incident between herself and Plaintiff or that she lied about all allegations of abuse.

Defendants' reply highlights this point. They argue that Plaintiff's response brief relies on an outdated September 2015 opposition research report. They also state that they based the challenged publications on the 2016 Politico article, which included police reports and medical records spanning over 20 years, some of which seem to corroborate Lolita Carson-Grayson's allegations of abuse. This position adds some clarity to Plaintiff's comment that, "[h]ad Defendants updated their research on the annulment proceedings, they would have learned" of Lolita Carson-Grayson's allegedly incessant deception.  However, there is no indication that Defendants "purposefully avoided further investigation with the intent to avoid the truth," and "a failure to investigate, standing on its own, does not indicate the presence of actual malice." Thus, there is no clear and convincing proof that Defendants published this amorphous second category of allegedly defamatory statements with actual malice, and summary judgment as to these publications is proper.

{Most of Plaintiff's response brief is in single-spaced, bullet-pointed, 12-point font. Normally, the Court would strike this filing as a blatant violation of Local Rules 1.08 and 3.01, but it suffers through this headache-inducing format in the interests of judicial efficiency.}