The Volokh Conspiracy
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Project Veritas' Defamation Lawsuit Against CNN Can Go Forward
Veritas had been suspended from Twitter for including an interview subject's house number; CNN "suggested on-air that Twitter banned Veritas for 'promoting misinformation.'"
Today's Eleventh Circuit decision in Project Veritas v. CNN, written by Judge Elizabeth Branch and joined by Judges Andrew Brasher and Ed Carnes, involves CNN's coverage of Twitter's suspension of Project Veritas:
On February 11, 2021, Veritas tweeted a video showing its reporters trying to interview Guy Rosen, then a Facebook vice president, outside a residence. Neither the video nor the text of the tweet accompanying the video contained any information related to the street, city, or state where the attempted interview took place. That said, a house number could be seen in the background of the video. That same day, Twitter suspended the official Veritas account on the grounds that the video violated Twitter's policy against publishing private information (informally known as a "doxxing" policy).
But CNN "suggested on-air that Twitter banned Veritas for 'promoting misinformation.'" Veritas sued CNN for defamation, and the Eleventh Circuit allowed the claim to go forward ("Taking the allegations of the complaint as true, as we must at the pleadings stage"):
We start by comparing the pleaded truth with the alleged defamation. The pleaded truth is that Twitter suspended the account of Veritas for doxing— publishing "private information [of another] without [his] consent." The alleged defamation is that [CNN anchor] Cabrera suggested on-air on February 15 that Twitter suspended Veritas's account for "promoting misinformation." Recall that Cabrera stated the following on-air:
- That social media companies were "cracking down to stop the spread of misinformation and to hold some people who are spreading it accountable";
- "For example, Twitter has suspended the account of Project Veritas …."; and
- "[T]his is part of a much broader crackdown, as we mentioned, by social media giants that are promoting misinformation." …
[U]nder New York law, a defamatory statement is substantially true [and thus not actionable] if "the overall gist or substance of the challenged statement is true." Thus, the relevant question is whether the "gist" or "substance" of being suspended for "promoting misinformation" is the same as being suspended for "publishing private information of another without their consent." We conclude that it is not.
Veritas has plausibly alleged that the average viewer would conclude from Cabrera's statements that Twitter "cracked down" on Veritas and suspended it from the platform for promulgating misinformation. Cabrera's statement about misinformation would plausibly "have a different effect" on the mind of the audience than the pleaded truth—that Veritas published accurate but private information. Unlike Hustler in Guccione v. Hustler (2d Cir. 1986), which excluded the minor detail of precisely when Guccione was unfaithful to his wife but did not change the substantial truth of the accusation that he was an adulterer, Cabrera accused Veritas of substantially different behavior than that in which Veritas engaged. Under New York law, such a statement is not substantially true. Veritas committed one infraction; CNN accused it of a completely different one.
CNN resists this conclusion by contending the commentary in question was substantially true because, even if CNN had accurately identified that Veritas was suspended for violating Twitter's policy on publishing private information, the effect on Veritas's reputation in the minds of the average viewer would have been the same. In other words, according to CNN, the "gist" of the statements was true—Twitter banned Veritas as part of a broader crackdown by social media platforms more strictly enforcing content rules—and the actual reason behind the ban (be it spreading misinformation or violating a policy on publishing private information) is irrelevant because Veritas would have suffered the same reputational harm regardless of the reason.
We disagree. As we explained previously, Veritas committed one infraction—it violated a policy regarding the publishing of private information, but CNN falsely accused it of violating a completely different policy—spreading misinformation. This distinction is not an inconsequential detail….
And the court concluded that Project Veritas adequately alleged "actual malice," which is to say "that CNN 'actually entertained serious doubts as to the veracity' of Cabrera's on-air statements, or at least 'was highly aware that [her statements were] probably false'":
We need not look further than two of CNN's communications published four days prior to Cabrera's on-air statements—Cabrera's own tweet accurately reporting on Veritas's ban and the article written by Brian Fung on CNN's website. By relying on Cabrera's tweet and Fung's article in its complaint, Veritas "shoulder[ed its] heavy burden." It has plausibly alleged that CNN knew that the true reason for Veritas's suspension from Twitter was the posting of private information, but yet reported four days later on-air that Veritas had been suspended in relation to a crackdown on the spreading of misinformation…. "[A]ctual malice can be shown where the publisher is in possession of information that seriously undermines the truth of its story[.]" …
CNN contends that the article and Cabrera's tweet about Veritas's suspension are not sufficient evidence of actual malice because they do not demonstrate that Cabrera "doubted her statement" that Veritas did, in fact, "fit into" the "broader crackdown" on misinformation by social media companies. In CNN's view, for Cabrera's tweet to be evidence of actual malice, she must have subjectively known that her tweet directly contradicted her on-air statements. But CNN's argument is unpersuasive. As we have explained, at the pleadings stage, Veritas must merely allege sufficient facts to permit the inference that Cabrera published her statements with knowledge or a reckless disregard for the truth. And as we have detailed, Cabrera's February 15 statements affirmatively implied a false justification for Veritas's suspension from Twitter. Thus, Veritas has pleaded that CNN "was highly aware that the account was probably false." Whether CNN, through Cabrera or others, entertained doubts of falsity or was actually aware that Cabrera's on-air statements were false is ultimately a question for a later stage.
Judge Ed Carnes added a concurring opinion; an excerpt:
If you stay on the bench long enough, you see a lot of things. Still, I never thought I'd see a major news organization downplaying the importance of telling the truth in its broadcasts.
But that is what CNN has done in this case. Through its lawyers CNN has urged this Court to adopt the position that under the law it is no worse for a news organization to spread or promote misinformation than it is to truthfully disclose a person's address in a broadcast.
CNN makes that argument to support its position that Project Veritas cannot show actual malice because doing so requires showing reputational harm. It asserts that the difference between the alleged truth involving Project Veritas' suspension from Twitter and what CNN allegedly falsely broadcast about that suspension did not have any effect on Project Veritas' reputation. The Court's opinion assumes, for present purposes only, that actual malice does require reputational harm and holds that even if it does, reputational harm is sufficiently alleged in this case. I agree with that holding and all of the majority opinion, which I join in full.
I write separately to explain why falsely reporting that Project Veritas had been suspended from a broadcast platform for spreading or promoting misinformation satisfies any reputational harm requirement of actual malice. And that is still the case even if the reason Project Veritas had been suspended is for disclosing in a broadcast a person's house number or address.
In its district court brief in support of the motion to dismiss the defamation claim against it, CNN recounted Project Veritas' contention that there is "sufficient difference between getting kicked off [Twitter] for posting misinformation and getting kicked off for posting prohibited information to support a defamation claim by a public figure." To which CNN curtly responded: "There is not." But there is…. [T]he truth is never an immaterial detail when accusing another of misconduct, and the boundary line between truth and falsehood that CNN allegedly stepped over is more important than any line in the game of tennis.
CNN's attorney was pressed at oral argument about his "immaterial detail" and mere "foot fault" assertions. Among the questions put to him was this one: "If [CNN itself ] had to choose between being branded as someone who revealed high profile people's house numbers or being branded as an organization that spread lies, which would it choose?" After unsuccessfully attempting to duck the question, he finally answered: "I will choose we don't want to be called sources of misinformation," but he added "the difference is modest." The difference is "modest" only for those who don't value the truth as a first principle of broadcasting….
Judge Branch's opinion for the Court contains a cogent paragraph explaining that credibility and integrity are essential to journalists and news organizations, and that without truthfulness they cannot operate effectively. Dedication to truth is not merely of modest importance to a news organization: it is central, fundamental, and indispensable. False claims that a news organization spread or promoted misinformation strike at the heart of its reputation and necessarily damage its effectiveness. If actual malice does include a requirement for reputational harm, CNN's on-air statements about Project Veritas meet that requirement….
