Judge Dismisses Libel Claim by Mask Mandate Opponent Against The Daily Beast

From Judge Hala Jarbou (W.D. Mich.) today in Kelly v. Daily Beast Co. LLC:

Plaintiff Kristen Meghan Kelly sues an online news website, The Daily Beast Company LLC, and its writer, Larrison Campbell, for alleged harm stemming from an article written by Campbell about Kelly. The other defendant is the American Industrial Hygiene Association ("AIHA")….

According to Kelly's complaint, she is a "senior industrial hygienist" with over 19 years of experience in "developing, analyzing and implementing workplace health and safety protocols." She has "presented testimony before legislative committees, appeared in documentaries, … and been engaged as a consultant throughout the country regarding workplace health and safety issues." Among other things, she opposes "mask mandates," i.e., government and private sector requirements to wear masks as a means to mitigate the spread of COVID-19. In April 2021, she appeared at a school board meeting in Hudsonville, Michigan, to express her opposition to its mask mandate. She created a video of her attendance at the meeting and then posted the video online.

Kelly's video caught the attention of Campbell, who contacted Kelly and discussed it with her. The Daily Beast later published Campbell's article about Kelly, which is titled, "Meet the Anti-Mask Michigan 'Scientist' Stoking the Fourth Wave."

Kelly sued for libel, but the court rejected the claims against The Daily Beast and Campbell. (It concluded that AIHA didn't adequately move for dismissal). Here is what strikes me as the heart of the analysis:

[None of the allegedly libelous] statements/claims give rise to a defamation claim against Defendants.

[1] Kelly is anti-mask. The Article's headline refers to Kelly as an "anti-mask" Michigan scientist. In context, this is not a false statement of fact. "Anti-mask" is simply a shorthand reference to Kelly's opposition to mask mandates. Indeed, Kelly makes a similar assertion about The Daily Beast, saying that it has a "pro-mask, pro-vaccine agenda."

[2] Kelly is stoking the fourth wave of COVID. This assertion is not provable as false. It is rhetorical hyperbole that cannot serve as the basis for a defamation claim against Defendants.

[3] Kelly is not a scientist. The Article does not make or imply this assertion.

[4] Kelly is leading the charge in her own state and nationwide against wearing masks.

Kelly does not allege or indicate what is false about this assertion, which simply refers to her prominence in advocating against mask mandates.

[5] Experts in Kelly's field are losing it. It is not clear why Kelly believes this statement is false. It is another example of rhetorical hyperbole, referring to the fact that other industrial hygienists disagree with her advocacy. It is not an actionable statement.

[6] Leading scientists are not on Kelly's side. Kelly does not indicate why she thinks this statement is false.

[7] 99% of AIHA's members believe that face coverings are one important strategy for reducing [COVID] risk. This statement says very little about Kelly. At most, it implies that she disagrees with most AIHA members on whether mask-wearing is an "important" strategy, which is an inherently subjective issue that is open to debate.

Furthermore, the statement is not actionable because the "99%" language is Sloan's [the AIHA CEO's] estimate about the high degree of support among AIHA members for the proposition asserted. There are no facts from which to infer that Defendants recklessly disregarded the truth when reporting this statement. Kelly does not allege facts suggesting that Defendants had serious reason to doubt the veracity of the statement. Indeed, Kelly herself does not identify why the statement is false.

Kelly notes that, in an email attached to the complaint, Sloan told another person, "When I read the article I winced when I saw that quote. That is not what [sic] said, and we have notified the editor accordingly." The Daily Beast subsequently changed the Article to say that the "vast majority" of AIHA's members "believe that face coverings are one important strategy for reducing risk." However, Kelly attributes any falsehood in the statement to Sloan; she alleges that "Sloan [k]new his statements were false when he made them to Campbell." Yet there are no facts from which to infer that Campbell or The Daily Beast had reason to know of any falsehood in what Sloan told them. Thus, Kelly has not alleged actual malice by Defendants in connection with that statement.

[8] Kelly's activism is very dangerous and is undermining the science of industrial hygiene. Here, Defendants were reporting the opinion of Sloan about his perception of the impact of Kelly's activism. They were not making provably false statements of fact about that activism.

[9] Kelly is not a senior industrial hygienist. The Article did not make this assertion. Instead, it reported the opinion of one person who purportedly said that a senior industrial hygienist is "not a real thing." It also reported Kelly's reasons why she believes that the term has meaning in her profession. In doing so, Defendants did not make a false statement of fact. Indeed, the assertion that Kelly's job title "is not a real thing" is clearly a subjective opinion expressed in loose, rhetorical terms. It is not an assertion that is provable as false.

[10] Kelly's affidavit was removed from the Tennessee Stands website after inaccuracies came to its attention. Kelly objects to this statement because she asked Tennessee Stands {a group that "fights against COVID restrictions}, to remove the affidavit due to concerns that it contained her personal information. However, Defendants reported her account in the Article. Notably, Kelly does not challenge the substance of Defendants' statement, which is that Tennessee Stands told The Daily Beast that it learned of inaccuracies in her affidavit before it removed the affidavit from its website. Indeed, it is possible to reconcile that statement with Kelly's account. In other words, both can be true at the same time: Kelly asked Tennessee Stands to remove the affidavit and Tennessee Stands learned about inaccuracies in that affidavit before it did so. Thus, Kelly has not adequately alleged a false statement.

Moreover, Kelly does not allege facts sufficient to establish actual malice by Defendants. To the contrary, the Article purports to identify several inaccuracies in the affidavit, undermining any contention that Defendants recklessly disregarded the truth.

Kelly compares this situation to other circumstances where a court could find there was a reckless disregard for the truth, including: reliance on an "unverified anonymous telephone call"; publishing statements that are "inherently improbable"; or publishing statements by an informant where there were "obvious reasons to doubt the veracity of the informant." None of those circumstances are present here. The Article cited an unnamed source, not an anonymous one, and it verified the information provided by identifying several inaccuracies in the affidavit and then giving Kelly an opportunity to respond. Apparently, she did not refute those inaccuracies when responding to Defendants and she does not do so here. Also, the inaccuracies in the affidavit and the discovery of them by Tennessee Stands were not "inherently improbable." Finally, Kelly provides no facts that would suggest there were obvious reasons for Defendants to doubt the truth of the information received from Tennessee Stands. As indicated, the statement from Tennessee Stands did not directly contradict with Kelly's account.

[11] Kelly submitted false information in the affidavit. The Article did not make this statement, but it did purport to identify inaccuracies in the affidavit. However, Kelly does not explain how any statements in the Article about the contents of the affidavit are false. Instead, she simply makes a conclusory assertion in the complaint that "[t]here were no inaccuracies in the affidavit." The Court need not accept this conclusory assertion as true….

Kelly alleges no facts indicating that Defendants made any provably false assertions of fact or selectively omitted any crucial relevant facts. And as to the affidavit, there are no facts indicating that Defendants intended to imply that Kelly committed perjury. Thus, for all the foregoing reasons, Kelly fails to state a defamation claim against Defendants….