The Volokh Conspiracy

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

Free Speech

Libel Lawsuit by Blackwater Founder Erik Prince Against The Intercept Rejected

A federal court held that Prince was a public figure, and hadn't offered enough plausible allegations that the defendants knew the statements were false or likely false (the so-called "actual malice" showing).


From Prince v. The Intercept, decided today by Judge Loretta Preska (S.D.N.Y.):

Plaintiff claims that an August 13, 2020 article … published by The Intercept defamed Plaintiff by portraying him as meeting "with a top official of Russia's Wagner Group and offer[ing] his mercenary forces to support the firm's operations in Libya and Mozambique." {The Article described the Wagner Group as "a semi-private military force that operates in countries or conflicts where the Russian government seeks plausible deniability for its activities, but which is often equipped and supported directly by the Russian Ministry of Defense."}

Plaintiff denies that he (1) met an "official from or representative of the Wagner Group," (2) "offered his services to support the Wagner Group's operations in Libya and Mozambique," or (3) "sent the Wagner Group a proposal to offer his services in Libya and Mozambique." Plaintiff also denies "caus[ing] any third party to meet with or submit a proposal to the Wagner Group on his behalf." Because counsel for Plaintiff conveyed to Mr. Cole Plaintiff's denial that he met representatives of the Wagner Group prior to the Article's publication, Plaintiff contends that Defendants published the statements with knowledge of their falsity. Defendants included this denial in the published Article. …

The opinion is long, and has lots of interesting procedural twists having to do with choice of law and personal jurisdiction; I can't do the full thing justice here right now, but here's what strikes me as the heart of the analysis:

Plaintiff's allegations of actual malice [which, again, means allegations that defendants published knowing that the statements are false or likely false -EV] are to the effect that Defendants (1) relied entirely on anonymous sources; (2) failed to include information regarding their anonymous sources in violation of The Intercept's policies and procedures; (3) deliberately avoided the truth because Plaintiff's counsel denied Defendants' allegations, and Defendants refused to engage with Plaintiff by providing additional details regarding their allegations; and (4) harbored a political bias against Plaintiff.

Biro v. Conde Nast (2d Cir. 2015) is instructive to show why Plaintiff's allegations do not support a plausible inference of actual malice. The Biro court established that "reliance on anonymous or unreliable sources without further investigation may support an inference of actual malice." However, a plaintiff's allegations must be nonconclusory because "[f]ailure to investigate does not in itself establish bad faith." Here, Plaintiff's attempt to provide additional allegations fails.

First, as in Biro, Plaintiff does not "allege facts that would have prompted [Defendants] to question the reliability of any of the named or unnamed sources at the time the Article was published." Here, Plaintiff has not pled that Defendants possessed evidence that their reporting was in error, which Defendants ignored. Rather, Plaintiff makes conclusory allegations including whether "such sources even actually exist" without alleging facts supporting these claims. It also appears that—contrary to Plaintiff's allegation—Defendants substantiated some of these claims. Defendants' purported violation of The Intercept's policies and procedures is similarly unavailing. Plaintiff has not alleged facts to show that Defendants could "establish the credibility of anonymously sourced information without compromising the source." Moreover, courts have found that "purported deviations from [] normal operating procedures … do[] not amount to 'purposeful avoidance of the truth.'"

Second, despite drawing inferences in Plaintiff's favor, the Court finds Plaintiff's general contention—that as "a former Navy SEAL who earned the trust and confidences of multiple U.S. Presidents" it is "inherently improbable" that he would offer military services to a sanctioned Russian entity—to be conclusory. The Court agrees with Defendants that Plaintiff's professional background does not make the Article's allegations "inherently improbable" because it would not be a contradiction for Defendants' allegations to be true.

Third, Plaintiff maintains that he sufficiently plead actual malice because Defendants harbor bias against him due to his political views and support of President Trump. As support for this claim, Plaintiff cites to articles published by The Intercept about Plaintiff that he claims are inaccurate. However, "allegation[s] about improper political or personal biases do not establish actual malice without additional facts to suggest the speaker acted pursuant to that bias." While Plaintiff admits that bias alone is insufficient to establish actual malice, he contends that taken with his other allegations, this raises a plausible inference of actual malice.

The Court contrasts Plaintiff's position with the allegations in Palin v. N.Y. Times Co. (2d Cir. 2019). In Palin, the Court of Appeals held that actual malice was adequately alleged because:

(1) the speaker of defamatory statements possessed an editorial and political advocacy background sufficient to suggest he published the statements with deliberate or reckless disregard for their truth, (2) the drafting and editorial process of the statements in question permitted an inference of deliberate or reckless falsification, and (3) the newspaper's subsequent correction to the allegedly defamatory article did not undermine the plausibility of that inference.

Unlike in Palin, Plaintiff's allegations regarding bias are speculation supported by conclusory statements because the Court cannot determine from Plaintiff's selected headlines, whether The Intercept published false information in furtherance of a political agenda. Nor has Plaintiff alleged specific facts bearing on [the authors'] knowledge or motives to act based on a personal bias. Moreover, there are no allegations regarding the drafting or editorial process of the allegedly defamatory statements that would render plausible a claim of actual malice.

Finally, Plaintiff alleges that Defendants published the Article with actual malice because "Plaintiff told the Defendants that their reporting was false, [and that] the Defendants … refus[ed] to engage with Plaintiff." It is well established that denials without more are insufficient to support a plausible claim of actual malice…. [A]ctual malice "cannot be predicated on mere denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error" …. Plaintiff contends that he does not rely on his denial alone to plead actual malice; rather, it is part of the totality of evidence. However, the Article reported Plaintiff's denial of the allegations.