No Defamation Liability for False Statement That Congressional Witness's Lawyer Was Partly Paid for by Trump PAC

So a federal judge rules in a case brought by Tony Bobulinski, who testified about the Bidens before the House Oversight Committee, against Jessica Tarlov, a Fox News commentator and co-host of The Five.

From yesterday's opinion by Judge Paul Oetken (S.D.N.Y.) in Bobulinski v. Tarlov:

The following facts are drawn from the allegations in Plaintiffs' complaint, which are presumed true for the purpose of resolving Tarlov's motion to dismiss.

Anthony Bobulinski is a "successful businessman" and former "business partner" of Hunter Biden. Stefan Passantino is an attorney and founder of Elections LLC who represented Bobulinski in front of the United States House of Representatives Committee on Oversight and Accountability ("House Oversight Committee"). Jessica Tarlov is a commentator on Fox News and co-host of its popular television program, The Five.

Bobulinski worked with Hunter Biden in 2017, when Bobulinski served as the CEO of SinoHawk Holding, "a [Chinese] company designed to find investments in the United States." During the course of this business partnership, Bobulinski became "concerned" that Hunter Biden was allegedly misusing company funds and "profiting off of his father's name when [his father] was Vice President of the United States."

Bobulinski began "speaking publicly against the Biden family" in 2020. Since he "came forward" about the Bidens' alleged misconduct, Bobulinski has "spent over $500,000 of his own money on legal fees." And, according to Bobulinski, "[n]either President Trump, nor any persons or entities affiliated with President Trump, have ever paid" for Bobulinski's legal fees.

On March 20, 2024, Mr. Bobulinski appeared as a witness before the House Oversight Committee to testify about "the conduct he witnessed by Joseph Biden, Hunter Biden, and Biden Family business associates." Passantino represented Bobulinski for the appearance and attended the hearing with his client. Bobulinski paid Passantino directly both for this matter and "several years of previous representation."

During the hearing, Representative Jasmine Crockett said on the floor of the House:

Mr. Bobulinski, I know that you take exception to the fact that your credibility has been called into question over and over[.] [D]o you know who Elections LLC is? … I'd ask unanimous consent to enter into the record a document indicating that the law firm representing Tony Bobulinski was paid $10,000 as recently as January of this year by the Save America PAC, which you may recognize as Donald Trump's PAC.

Later that day, during Fox News's live taping of its nightly show, The Five, Tarlov commented on the House Oversight Committee hearing and said: "Ok, Tony Bobulinski's lawyers' fees have been paid by a Trump Super PAC. That's as recently as January."

In response to that statement, Plaintiffs sent Tarlov a letter "demand[ing] that Ms. Tarlov retract and apologize for her defamatory comments" about Bobulinski's legal fees. During the March 21st airing of The Five, Tarlov said:

I would like to clarify a comment I made yesterday during our discussion of Tony Bobulinski's appearance at the congressional hearing. During an exchange with my colleagues about the hearing, I said that Mr. Bobulinski's lawyer's fees have been paid for by a Trump Super PAC as recently as January. What was actually said at the hearing was that the law firm representing Mr. Bobulinski was paid by a Trump PAC. I have seen no indication that those payments were made in connection to Mr. Bobulinski's legal fees, and he denies that they were. Alright.

Bobulinski didn't find the follow-up statement to be adequate, and sued for defamation and a related tort. No liability, the court concluded, in part of the following grounds:

[N]ot every false statement is defamatory. Here, the allegation that Bobulinski's attorney's fees were paid by a Trump PAC is not defamatory because it does not tend to expose either Bobulinski or Passantino to "public contempt, hatred, ridicule, aversion or disgrace."

Bobulinski, a self-proclaimed "political moderate" , made several decisions, relevant here, when faced with witnessing alleged misdeeds of the sitting Vice President of the United States. First, Bobulinski came forward at a special press conference to tell his story and then immediately thereafter attended the final presidential debate as a personal guest of then-President Trump. Second, he retained an attorney who was a former Trump White House attorney and founder of a law firm that had previously taken payment from the Save America PAC. And third, Bobulinski agreed to appear before the House Oversight Committee's election-year impeachment inquiry hearing, entitled "Influence Peddling: Examining Joe Biden's Abuse of Public Office." For a political commentator to then make a statement (incorrectly) about Bobulinski's connection to a "Trump Super PAC" does not impact Bobulinski's reputation meaningfully more than any of these other decisions.

Nor is it untoward for a congressional witness to have his legal fees paid for by a third party. It is neither uncommon nor contrary to ethical rules for a third party to pay for someone's legal fees, so long as the client provides informed consent and the attorney's independence is not compromised. Accusing Bobulinski of accepting third-party payment hardly subjects him to public disgrace given how expensive it is to retain an attorney as qualified and experienced as Passantino.

Bobulinski contends that Tarlov's statement "subjected him to hatred, distrust, ridicule, contempt, and/or disgrace by a certain segment of America and the world which lives in an alternate reality." {It is not clear what, exactly, Plaintiffs mean by "liv[ing] in an alternate reality." If this moniker is shorthand for those who cannot discern fact from fiction, defamation law cannot coherently be built on the views of the average person who cannot tell truth from falsity.} But case law directs courts to look to a "reasonable" interpretation by the "average" listener, and the Court is not prepared to assume that the average American "lives in an alternate reality."

Further, the Second Circuit has held that allegedly defamatory statements are to be construed as they would "by the public to which they are addressed." Bobulinski has not alleged that an average viewer of The Five would be more likely than the average American to hear this comment connecting him to President Trump and hate, distrust, or ridicule him. Nor could he. However, regardless of whether the scope of this inquiry is the average intended listener or the average American more generally, Bobulinski fails to make the case that Tarlov's statement subjected him to public ridicule or contempt. Connecting Bobulinski to the former—and future—democratically elected President of the United States simply cannot be grounds for an average American's hatred, distrust, or ridicule.

Nor has Bobulinski adequately alleged defamation by implication. Bobulinski argues that the March 20th Statement "negatively impl[ied] that his testimony is bought and paid for." "Under a defamation-by-implication theory, [Plaintiff] 'must make a rigorous showing that' [the statement] 'as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference."

At the outset, the Complaint does not even specify what defamatory implication Plaintiffs believe Tarlov intended her viewers to draw, alleging only that her statement "caused … viewers[ ] not to trust or find credibility with Plaintiffs." Stating that a congressional witness's legal fees are paid by a PAC may imply nothing more than that the witness shares or sympathizes with the beliefs of that PAC. Tarlov might have said such a thing to emphasize the fact that Bobulinski was invited by House Republicans as a majority witness. Or she might have been pointing out that there are two sides to every story, and presenting only Bobulinski's side during the on-air discussion was not painting the full picture. But it is a "strained or artificial construction" to interpret Tarlov's statement as accusing Bobulinski of lying to Congress.

Further, even if one could reasonably interpret Tarlov's statement to suggest that Bobulinski perjured himself, Bobulinski has not met his burden of adequately alleging that Tarlov "intended or endorsed that inference." Plaintiffs state that Tarlov "intended and endorsed" the inference "in order to serve her personal political agenda, and the agenda of those with whom she associates politically." But beyond this conclusory statement, the only reason Plaintiffs provide is that Tarlov had previously "exhibited her malice for Plaintiffs," as evidenced by her February 21, 2024 comments on The Five: "Even Senate Republicans have not found Tony Bobulinski to be credible, so, he gives a great cable news interview. I understand it's very compelling for people who want to believe Joe Biden is actually Gotti, a mob boss." Tarlov's job is to be a political commentator on current events, so this kind of on-air comment does not reasonably indicate personal animus, but rather reflects Tarlov's observations on a high-profile political event.

Bobulinski also points to the fact that on March 20, 2024, Tarlov reposted a Daily Beast article with the headline "Trump's PAC Burned $230,000 a Day on Legal Bills in February." But again, Bobulinski is asking the Court to take too many inferential jumps to view this social media post about the Save America PAC as evidence that Tarlov intended for her audience to interpret her comments about Bobulinski's receipt of PAC money as an accusation of perjury….

Because the March 20th Statement was not directly or impliedly defamatory with respect to Bobulinski, Bobulinski fails to meet his burden on this element.

Passantino also sued, but his claim was rejected as well:

The March 20th Statement also does not subject Passantino to "public contempt, hatred, ridicule, aversion or disgrace." Passantino is "one of the leading political lawyers in the country" and previously served as Deputy White House Counsel for former President Trump. Thus, his name and professional reputation have been associated with Trump and affiliated political entities previously. Further, Passantino admits that it is "a true fact that the [Save America] PAC has paid Stefan Passantino's firm, Elections LLC, in the past …." Tarlov stating that Passantino once again accepted third-party payment from the same PAC from which he previously accepted third-party payment cannot reasonably be interpreted by the average listener (of The Five or more generally) as defamatory.

Defamation by implication fails here as well. Passantino argues that Tarlov's March 20th Statement "indicat[ed], in conspiracy-theory fashion, that Mr. Passantino was part of a scheme to present politically motivated and improperly paid-for tainted testimony in violation of his ethical duties." Yet this implication requires even more logical jumps than the one offered by Bobulinski. Here, the listener must interpret Tarlov's comment as insinuating that because a third party paid Bobulinski's legal fees, Bobulinski's (unnamed) lawyer ignored the governing ethical rules of his profession and coached Bobulinski to lie in front of Congress.

And even if this interpretation were reasonable, Passantino has failed to adequately allege that Tarlov "intended or endorsed" such an inference….

This seems consistent with cases such as Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580 (D.C. 2000), and Lyons v. Globe Newspaper Co., 415 Mass. 258 (1993), which cite the Prosser & Keeton treatise for the view that "while a statement that a person is a Republican may very possibly arouse adverse feelings against him in the minds of many Democrats, and even diminish him in their esteem, it cannot be found in itself to be defamatory, since no reasonable person could consider that it reflects upon his character." And those cases themselves seem to represent the general rule. Falsely accusing someone of connection with groups that are sufficiently fringe and highly reviled, such as the KKK or the Communist Party—not just using "fascist" or "racist" or "Communist" as a general epithet to characterize a person's supposed ideological views, but asserting a specific factual link to the organization—may be defamatory. But falsely accusing someone of a connection to one of the major parties is not defamatory (even if the plaintiff could prove specific damages flowing from that accusation).

In some states, there might be liability under the false light tort, which allows claims for highly offensive false statements about people (especially knowingly false ones), even when they don't tend to damage reputation. See illustration 4 to Restatement (Second) of Torts § 652E:

A is a Democrat. B induces him to sign a petition nominating C for office. A discovers that C is a Republican and demands that B remove his name from the petition. B refuses to do so and continues public circulation of the petition, bearing A's name. B is subject to liability to A ….

But New York law generally doesn't recognize the false light tort (except for certain commercial uses that wouldn't be seen as applicable here); likely because of that, no false light claim was made by plaintiffs.

There's also more in the opinion, including an important holding that the New York anti-SLAPP statute's attorney fee shifting provision applies in federal court.

Brett Katz, Pat Philbin, Kyle West & Chase Harrington (Torridon Law) represent Tarlov.