The Volokh Conspiracy
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Former National Security Advisor Michael Flynn Loses Libel Lawsuit Against Lincoln Project Cofounder Rick Wilson
From today's decision in Flynn v. Wilson, by Florida Court of Appeal Judge Susan Rothstein-Youakim, joined by Judges Darryl Casanueva and Morris Silberman:
Retired lieutenant general Michael Flynn sued Rick Wilson for defamation after Wilson referred to Flynn in a tweet as "Putin employee Mike Flynn" and retweeted "FYI, Mike Flynn is Q." Flynn seeks $50 million in damages and a permanent injunction ordering Wilson to stop defaming him. Wilson moved for summary judgment, `contending that both of his tweets were opinion or rhetorical hyperbole protected by the First Amendment that "by their nature cannot be proven true or false" and that Flynn could not show that Wilson made the statements with "actual malice." The trial court granted Wilson's motion and entered judgment in his favor. We affirm.
Flynn is a quintessential public figure. As a lieutenant general in the United States Army, he played a key leadership role in the Afghanistan and Iraq wars. He is a former head of the Defense Intelligence Agency and a former National Security Adviser to President Donald Trump. Flynn has continued to maintain a high public profile, including in the aftermath of the 2020 presidential election and in the public debate surrounding Russia's 2022 invasion of Ukraine.
Wilson is a political strategist, author, and cofounding member of the Lincoln Project, which Flynn alleges is an "organization dedicated to opposing Republicans." Wilson has written two New York Times bestsellers highly critical of President Trump and many of those who served in his administration, including Flynn. In one of those books, titled Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever, Wilson wrote about Flynn:
Capo of l'affaire russe MAGA Crew Mike Flynn, a disgraced former army general was so outrageously in bed with the Russians that even Trump was forced to fire him.
Wilson frequently expresses his opinions on MSNBC and CNN, among other networks, and on social media, including on the networking service formerly known as Twitter through his handle @TheRickWilson….
Wilson's two tweets in this case did not emerge from a vacuum. Wilson's "Putin employee" tweet was an immediate and direct response to a letter Flynn published to the world on February 24, 2022—the day Russia invaded Ukraine:
Flynn's letter was hardly the first time that Flynn and Russia were connected in a news story. Flynn gained national notoriety in early 2017 when he was terminated from his post as Trump's National Security Adviser after serving only twenty-two days. He admitted to having misled Vice President Michael Pence on whether he had discussed with the Russian ambassador—before Trump took office—the Obama Administration's recently imposed sanctions against Russia. President Trump tweeted, "I had to fire General Flynn because he lied to the Vice President and the FBI." Shortly after his dismissal, several newspapers then began reporting that Flynn had received $45,000 from RT, formerly known as Russia Today, for a speaking engagement in Moscow in 2015. Photos from that trip show Flynn sitting at Putin's elbow at an RT dinner. RT ultimately registered as a "foreign agent" with the United States government. No one here disputes that RT is financed by the Kremlin.
{It is undisputed that Flynn was ultimately indicted for, among other things, lying to the Federal Bureau of Investigation. He pled guilty and expressly admitted his offense. Flynn later sought to rescind that guilty plea and admission and was eventually pardoned by President Trump.} …
Prior to Wilson's retweet of "FYI, Mike Flynn is Q," Wilson had read two articles in which the authors expressed suspicion on the part of believers in the QAnon conspiracy that Flynn could indeed be the mysterious "Q." {One article that Wilson attached to his affidavit describes QAnon as a "movement centered on the claim that Mr. Trump, secretly aided by the military, was elected to smash a cabal of Democrats, international financiers and deep-state bureaucrats who worship Satan and abuse children."} The article in the New York Times stated:
To many of the movement's followers, Mr. Flynn ranks just below Mr. Trump. Some have speculated that he is the mysterious figure known as "Q," the purported government insider with a high-level security clearance who began posting cryptic messages in 2017 about the deep state trying to destroy the president.
Our record here suggests that Flynn has a complicated relationship with the QAnon movement. On the one hand, Flynn insisted before the trial court—and now before this court—that QAnon is a terrorist organization and that his reputation has been damaged by those like Wilson who link him with that movement (although he introduced nothing into the record on either point). And on the other hand, Flynn admits that he posted a video showing him and his family members using a slogan that many associate with the QAnon movement ("Where we go one, we go all!"), complete with a hashtag likewise associated with QAnon. Nor does Flynn dispute that he has authorized the sale of Flynn-themed t-shirts, hats, and other merchandise affixed with highly specific slogans commonly associated with QAnon, such as WWG1WGA. Here is Wilson's retweet of "FYI, Mike Flynn is Q," in context:
Thus, that challenged language is part of a longer message that Wilson retweeted. {Wilson is the person in the video screenshot embedded in the underlying tweet. The record does not tell us what Wilson may have said on MSNBC that day, although the tag line in the screenshot suggests that the subject may have been the 2024 GOP primary.}
The court concluded that the "Putin employee Mike Flynn" statement was "nonactionable rhetorical hyperbole or opinion," and thus protected by the First Amendment:
Wilson's tweet, after all, appears together with Flynn's letter, which says, among other things: "The WH [White House] ignored and laughed at Putin's legitimate security concerns and legitimate ethnic problems in Ukraine. We have yet to hear from the President of the United States an explanation of U.S. national security interests, instead we continue to demonize Russia …."
Flynn wants us to isolate Wilson's statement from its context and focus instead on what it typically means to be an "employee." And stripped from the rest of the tweet, Wilson's statement may indeed appear to be making a factual claim about Flynn's economic relationship with Putin.
But that is not what a reasonable reader of Wilson's Twitter feed would think Wilson was trying to communicate. Rather, whether Flynn gets a regular paycheck from the Russian Federation—like Putin's secretary perhaps—just isn't Wilson's point. A reasonable reader of Wilson's response to Flynn's letter would instead understand Wilson to be expressing essentially the same thing he wrote in his book, namely, what else would you expect from someone "in bed with the Russians"? As with Flynn's actual intimate relationships, his actual economic relationship with Putin (if any) is immaterial.
The opinion in Herring Networks, Inc. v. Maddow (9th Cir. 2021), is an instructive example of similar "rhetorical hyperbole" protected by the First Amendment. In that case—decided on a motion to dismiss—Herring Networks, the operator of One America News (OAN), sued Rachel Maddow for defamation based on certain comments she had made during a TV broadcast. Among other things, she had stated, "In this case, the most obsequiously pro-Trump right wing news outlet in America [OAN] really literally is paid Russian propaganda."
Except that OAN really literally wasn't. Rather, as Maddow also disclosed to her listeners, one of OAN's employees also freelanced for Sputnik News, a Russian state-financed news organization, and was paid for that freelance work. And, Herring Networks had further alleged that employee's work was separate and distinct from his work for OAN. The court nevertheless dismissed Herring Network's complaint with prejudice, concluding: "[T]he challenged statement was an obvious exaggeration, cushioned within an undisputed news story. The statement could not reasonably be understood to imply an assertion of objective fact, and therefore, does not amount to defamation." So too here….
Finally, "[t]he medium through which the contested statement was made [here, Wilson's Twitter feed] supports [Wilson's] argument that a reasonable viewer would not conclude the statement implies an assertion of fact." Flynn emphasizes how deeply partisan Wilson has become, alleging at one point in his complaint that "[d]ue to several policy disagreements with President Donald Trump's Administration, Wilson seemingly switched his political beliefs overnight, and began working with far-left publications." But Wilson's political orientation simply underscores that reasonable readers of Wilson's Twitter feed will expect Wilson to be hyperbolic and highly subjective….
As to the "FYI, Mike Flynn is Q," the court concluded that,
[T]he onus was on Flynn to prove by clear and convincing evidence that Wilson entertained "serious doubts" about the accuracy of the articles stating that at least some believers in the QAnon conspiracy think that Flynn is Q. But Flynn did not submit an affidavit or other record evidence demonstrating Wilson's "actual malice."
Moreover, although the record persuades us that most QAnon adherents believe that there is at least one Q (and maybe more), we cannot discern much else about that person or persons, whether inadvertently or by design. Nevertheless, this ambiguity does not create a genuine issue of material fact for the jury to resolve.
If Flynn is not Q (or one of the Qs), then it presumably would not have been hard for him to have filed an affidavit with the trial court to that effect. After all, … Flynn has the burden of proving falsity.
But if, as the record suggests, the identity of "Q" poses an intractable proof problem—due perhaps to the very nature of QAnon—that is Flynn's problem and not Wilson's. Thus, we agree with the trial court that the statement "FYI, Mike Flynn is Q" is nonactionable rhetorical hyperbole or opinion.
Indeed, on this record, "Flynn is Q" becomes just another example of generally nonactionable name calling that lacks a verifiable factual core. See Cheng v. Neumann (1st Cir. 2022) ("right wing," "far-right," and "conspiracy theorist"); Buckley v. Littell (2d Cir. 1976) ("fascist"); Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin (1974) ("scab"); Hotchner v. Castillo-Puche (2d Cir. 1977) ("toady")….
And the court closed with this:
We have the privilege of living in a country with a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks." Like it or not, such attacks are a characteristic feature of our democracy—regardless of the political persuasion of the speaker and regardless of the political persuasion of the public figure on the receiving end of that speech. As the trial court noted, Wilson's tweets may not have been polite, and they may not have been fair. But the First Amendment required neither, and so we affirm [the judgment in favor of defendant].
Leonard M. Collins (GrayRobinson, P.A.) represents Wilson.
