The Volokh Conspiracy

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Free Speech

"If He Did Not Want to Be Called a 'Rioter,' Plaintiff Should Not Have Admitted … to 'Participation in … [a] Riot'"

Plus, the significance of omitting "IDK."


An excerpt from Hiles v. CNN, decided yesterday by Judge Arenda L. Wright Allen (E.D. Va.), where plaintiff sued for libel in a CNN article (read the whole opinion for more):

Factual Allegations …

Although Plaintiff is referred to as a "rioter" in the Article, he alleges that he was never charged with or accused of rioting at the U.S. Capitol. Plaintiff further quotes definitions of "riot" from Virginia and federal law and alleges that his activities do not meet these definitions. CNN had made distinctions between rioters and demonstrators in prior reports, including when covering the 2015 Baltimore riots, when CNN analyst Mark Lamont Hill pointed out that not all demonstrators present were rioters. Likewise, in April 2021, Schneider had published an article differentiating conspiracy cases brought against about 20 members of paramilitary groups from "hundreds of rioters facing trespassing charges."

The Article also omits certain matters…. [Among others,] [t]he Facebook post quoted by the Article … is accompanied by "an obviously tongue-in-cheek" caption, "Feelin cute … might start a revolution later. IDK – in Capitol Hill." …  The Article … omits the phrase "IDK" (short for "I don't know") from the Facebook post….

The Virginia Fair Report Privilege …

"Virginia's fair report privilege protects the publication of 'accounts of public proceedings or reports'—for example, records of judicial proceedings." … Here, the challenged statements all derive from publicly available court materials in Plaintiff's criminal case and are substantially accurate and fair abridgements of those materials….

First, Plaintiff does not dispute that he initialed each page of and signed the Statement of Offense—indisputably a court record—which expressly describes "Jacob Hiles' Participation in the January 6, 2021, Capitol Riot." Thus, for all of his nuanced arguments about the meaning of the word "riot" and the alleged implications of CNN's report, the issue is ultimately simple: if he did not want to be called a "rioter," Plaintiff should not have admitted in a court proceeding to "Participation in … [a] Riot." The Court declines to find that the use of the term "rioter" in one instance in the article is an abuse of the fair report privilege, when the Plaintiff's own admission gathers all of his behavior under the heading of "Participation in … [a] riot." Rather, CNN's use of the term is a fair and substantially correct statement of the contents of the public record. See Lowery v. Stovall (4th Cir. 1996) ("Particularly galling is the situation where a criminal convicted on his own guilty plea seeks as a plaintiff in a subsequent civil action to claim redress based on a repudiation of the confession…. There should be an estoppel in such a case.")

Second, the Statement of Facts filed by the Government in Plaintiff's case—again, indisputably a court record—included the Facebook post at issue here, in which Plaintiff stated, "Feeling cute … might start a revolution later, IDK" with the geotag "in Capitol Hill." CNN included in the Article the following description of the
Facebook post as reported in the Statement of Facts:

In selfies from January 6 found by the FBI on social media, Hiles wore a gaiter mask and ski goggles and a sweatshirt that said "F*ck Antifa." He had also posted on his Facebook page, "Feelin cute … might start a revolution later," tagging himself on Capitol Hill, according to documents supporting his arrest.

The only difference between the content of the Government record (and Plaintiff's own words) and the report in the Article is the omission of the term "IDK" (I don't know). This minor discrepancy is not sufficient to show that CNN abused the fair report privilege…. "As long as [Defendant's] representation of the report was substantially accurate, selective representation of the report's contents does not constitute abuse." … The phrase "IDK" serves the same function in the post as the word "might" and the term "feelin cute"—it tends to indicate that the poster may not be entirely serious about what he is saying. By retaining two of these softening terms, CNN's abridgement maintains the essence of both the content and tone of the post and is thus substantially accurate and a fair abridgement…. "[W]hile the news article was not exactly correct, it constituted no substantial departure from the language [in the source]." Therefore, the fair report privilege applies to the Article's reporting of the Facebook post….