The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Libel Suit by Gen. Michael Flynn's Sister Against CNN Dismissed
I'm too slammed today to comment in detail on it, but I just thought I'd note the decision handed down today by Judge Mary Scriven (M.D. Fla.) in Valerie Flynn v. CNN:
Plaintiff, a citizen of Florida, is a private individual and sister to Retired General Michael Flynn. Plaintiff's suit against Cable News Network, Inc. … arises from CNN's publication on February 4, 2021, of an exclusive report by correspondent Donie O'Sullivan … entitled "CNN Goes Inside A Gathering Of QANON Followers" …. The Publication includes a clip of a video posted to Twitter by General Flynn on July 4, 2020 …. According to Plaintiff, General Flynn posted the Original Video, which was filmed during a Fourth of July barbeque at Plaintiff's sister-in-law's home in Newport County, Rhode Island. In the Original Video, Plaintiff and others present at the July Fourth barbeque, "took the Oath to the United States Constitution" and "[a]fter finishing the Oath," General Flynn stated, "where we go one, we go all." Plaintiff repeated the phrase, but claims "[s]he did not know that some people considered it to be a QAnon slogan."
CNN aired the Publication on February 4, 2021. Plaintiff claims that in Defendant's broadcast, CNN falsely accused her of being what she describes as a "'follower' of the 'dangerous', 'violent', 'racist', 'extremist', 'insurrectionist', 'domestic terrorism' movement—QAnon." Plaintiff claims the Publication "juxtaposed a picture of [Plaintiff] (and other members of the Flynn family) with [pictures of] numerous known QAnon adherents." The Publication includes footage of what Plaintiff describes as an "insurrectionist mob storming the United States Capitol[,]" and a clip—"selectively edited and altered by CNN"—of the Original Video. Plaintiff claims that "CNN used [Plaintiff's] picture and emblazoned the edited clip with chyron that endorsed the defamatory meaning of CNN's statement" and that "[t]he tone of the whole [Publication] was that everybody that CNN was showing its audience is a 'QAnon Follower'." The chyron beneath the video stated: "CNN GOES INSIDE A GATHERING OF QANON FOLLOWERS" ….
CNN's alleged statement that Plaintiff is a QAnon follower is not inherently injurious but is only injurious "as a consequence of extrinsic facts," such as the January 31, 2021 CNN Special Report and House Resolution 1094 relied on by Plaintiff to explain the defamatory nature of the Publication. This additional contextual material falls outside the "four corners" of the Publication. As explained, a per se defamation claim [under Florida law] includes words that "upon their face and without the aid of extrinsic proof [are] injurious." Defamation per se statements are "so obviously defamatory" they do not require references to extrinsic evidence. As such, the Court finds that Plaintiff fails to state a claim for defamation per se.
Of course, under Florida law, even if a court does not find a statement qualifies as defamation per se, a court will permit a defamation per quod claim to proceed if the plaintiff alleges "items of special as well as general damages." Consequently, the Court must next determine whether Plaintiff has adequately pleaded special damages.
"Special damages are actual, out of pocket losses which must be proven by specific evidence as to the time, cause and amount; whereas general damages encompass the more customary harms inflicted by a defamatory falsehood, such as impairment of reputation and standing in the community." Special damages' "chief characteristic … is a realized or liquidated loss." Plaintiff's Amended Complaint is devoid of allegations of actual employment loss or realized loss attributable to her being called an alleged QAnon follower…. As such, Plaintiff fails to plausibly allege special damages [under Florida law].
For more, including the court's analysis of the libel by implication and the false light claim, see the full opinion.