FBI Director Nominee Kash Patel Loses Libel Appeal Against CNN

An excerpt from today's Virginia Court of Appeals decision in Patel v. CNN, Inc., decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages):

Generally, Patel alleged in an amended complaint that CNN defamed him by reporting that the House Permanent Select Committee on Intelligence (Intelligence Committee) had uncovered evidence that "connected" him to President Trump's efforts to (1) spread conspiracy theories about then-Vice President Joseph R. Biden, Jr. and (2) coerce Ukraine into announcing an investigation into Vice President Biden and his son, Hunter Biden….

It is undisputed that Patel is a public official and the challenged statements involve a media company's reporting on a widely publicized political issue. Thus, for Patel's claims to survive demurrer, he was obliged to allege facts with "sufficient definiteness to enable" the conclusion that CNN published the challenged statements with actual malice [i.e., knowledge that the statements were false or likely false -EV]. Yet his amended complaint was comprised of unspecified conclusions, contradicted by the attached documents, and did not otherwise allege specific instances of conduct "sufficient … to enable [a] court to find the existence of a legal basis for its judgment." …

Patel argues that the "aggregate" of his allegations demonstrated that CNN published the challenged statements "with knowledge that they were false or with reckless disregard for whether they were false." He alleged that CNN "harbored extreme professional and personal animus, bias, spite and ill will" toward him, and published the statements to "sensationalize the 'news,'" "profit from … its false statements," and "insult" him.

He maintains that CNN's "agents" were "present during the House impeachment inquiry" and had read the Ukraine Report, so CNN "knew" that no "evidence" was actually "'uncovered' connecting [him] to" conspiracy theories or "any 'diplomatic back channel led by … Giuliani.'" Consequently, he alleged, CNN "manufactured" the challenged statements "out of whole cloth." In doing so, CNN "abandoned all journalistic integrity," "violated its own code of ethics," and "ignored its own prior reporting and reliable information that contradicted" the challenged statements. Indeed, Patel alleged that CNN "purposefully avoided … the truth" by publishing the challenged statements despite knowing that he had denied the allegations….

[U]nder the actual malice standard, a public official must plead with sufficient definiteness, even for media companies that harbor ill will and ordinary malice, that specific persons within those companies who were responsible for the challenged statements knew the statements were false or had "a high degree of subjective awareness of their probable falsity." Yet Patel's allegations do not enable such a conclusion because they do not sufficiently "bring home" the actual malice standard to a person or persons at CNN responsible for publishing the challenged statements.

Patel's amended complaint targets CNN generally, alleging, among other things, that CNN was biased and harbored ill will against him, CNN fabricated the challenged statements, CNN ignored its own reporting and reliable information contradicting the challenged statements, CNN abandoned journalistic integrity and violated its own code of ethics, CNN deliberately and recklessly conveyed a false message to sensationalize the news, CNN republished the statements after being informed that Patel contested them, and CNN purposefully avoided the truth.

But CNN is a media corporation. And the actual malice standard is a subjective one that requires facts demonstrating the specific "state of mind" of a person within a media corporation at the time of publication. "Under th[at] standard, knowledge of [a statement's] falsity held by a principal cannot be imputed to its agent. It is the state of mind of the speaker that is relevant." Thus, Patel's complaint was obliged to do more than target CNN generally. It had to allege material facts sufficient to establish a basis for a court to "impute[ ]" any knowledge CNN had generally to the specific persons who were responsible for publishing the challenged statements in this case.

Patel's obligation to "bring home" actual malice to the minds of specific persons at CNN is particularly pronounced in this case, where each defamatory statement had multiple and different authors, rendering the state of mind of each person critical to discerning which of the statements, if any, may have been published with the requisite intent. For although we accept as true on demurrer Patel's claim that CNN harbored ill will against Patel for his work on the Nunes Memo, we cannot reasonably infer from that allegation that every journalist and publisher harbored the same ill will, or to the same degree. And although we accept as true that CNN's unidentified "agents" attended the House impeachment inquiry and "saw transcripts of testimony and reports of the impeachment proceedings," that allegation does not enable the conclusion that the specific publishers of the challenged statements in this case were those "agents" or knew what was revealed in those transcripts or during the impeachment inquiry hearings. Thus, even taking those allegations as true, they do not enable the conclusion that the specific publishers of the challenged statements in this case knew the statements were false or acted with reckless disregard of their falsity….

Moreover, Patel's allegations that CNN "ignored its own prior reporting," "public records," and "reliable information" contradicting the challenged statements also are not sufficiently definite to bring home actual malice to the mind of a person or persons. As an initial matter, outside of Patel's own denials in the CBS News article, the amended complaint does not identify what prior reporting, public information or other reliable information he refers to, let alone how such information contradicted the challenged statements. Thus, the allegations are conclusory and not binding. In any event, "[t]he mere presence of news stories in a newspaper's files containing information that contradicts an allegedly defamatory statement by the news organization is insufficient to establish malice." For the reasons explained above, that CNN generally "ignored" certain prior articles or information does not "bring home" the requisite state of mind to any of the various authors of the challenged statements in this case.

In addition, the Ukraine Report and CBS News article contradict Patel's allegations that CNN ignored reliable information demonstrating that the challenged statements were false, "lacked reasonable grounds" supporting them, and instead "fabricated" and "manufactured" the statements "out of whole cloth" without reliable sources. As facts supporting those allegations, Patel alleges that because CNN "agents" were aware of what was revealed during the House impeachment inquiry and had read the Ukraine Report, it "knew" that no "evidence" was actually "'uncovered' connecting [him] to" conspiracy theories or "any 'diplomatic back channel led by … Giuliani.'"

This Court takes no position on the veracity of the Ukraine Report's contents, claims, and implications. Nor do we suggest that the Ukraine Report proved that Patel was connected to any back-channel communications regarding Ukraine. Nevertheless, the Ukraine Report in fact connected Patel to Giuliani's "meddling" efforts in Ukraine on behalf of Trump. It presented Giuliani's May 10, 2019 phone call with Patel as being sandwiched between other calls that were explicitly about Giuliani's intent to pressure Ukraine into launching investigations into the alleged "conspiracy theories" on behalf of President Trump. The report implied that Giuliani was busy that day with a "flurry" of phone calls about his intended Ukraine trip and that his relatively lengthy call to Patel was a part of that overall effort. Moreover, as the Intelligence Committee spokesman said after the Ukraine Report was released, Dr. Hill's testimony during the impeachment inquiry implying that Patel might have retained "some special … representational role on Ukraine" suggested that he may have been "providing information to the President on Ukraine as part of an alternate channel."

Based on those circumstances, CBS News reported about a year before CNN published the challenged statements in this case that the Ukraine Report had in fact linked Patel to Giuliani's efforts, reporting that Dr. Hill's testimony and Giuliani's "call records" as "revealed in the report" had "suggested" that Patel "may have been part of a back channel to the president on Ukraine." Indeed, Patel's denials in the CBS News article demonstrate that he too reached the same conclusions from the Ukraine Report because he stated that he was "never a back channel to President Trump on Ukraine matters, at all, ever. Never—no meetings, no shuttling of documents, no meetings in secret. Never happened. I have no idea where they [the Democrats who drafted the Ukraine Report] got that from."

The above documents attached via oyer belie Patel's allegations that CNN "fabricated" and "manufactured" the challenged statements "out of whole cloth" without a source. CBS News, CNN, and even Patel made the same inference from the Ukraine Report—that it in fact made such a connection. Moreover, the report cited Giuliani's call records and Dr. Hill's testimony as evidence its authors believed supported the connection. Thus, the challenged statements plainly were not purely fictional fantasies that sprung from the imaginations of (unidentified) persons at CNN, and we may therefore "ignore" Patel's allegations that they were so "fabricated" and "manufactured" when reviewing the demurrer. Rather, the challenged statements merely reported the same conclusions from the Ukraine Report that CBS News and even Patel had previously inferred, explicitly citing the House impeachment inquiry as the source in one instance….

Judge Steven Frucci dissented; an excerpt:

I … agree that mere allegations that CNN was biased against Patel and that CNN relied on the Report without investigating it would not be sufficient to establish "knowledge of falsity or reckless disregard for the truth." However, Patel's amended complaint not only alleges facts of bias and failure to investigate but also contains allegations of fabrication, "manufactur[ing] the [s]tatements out of whole cloth," failure to follow CNN's code of ethics, contrary prior reporting by CNN, CNN's agents reviewing public records and reports that contradicted the claims of their statements prior to making the statements, CNN having no factual basis for their statements, and CNN "purposefully misrepresent[ing] facts" and "omit[ing] facts … in a way that intentionally convey[ ] a false meaning." "These allegations are concrete and amount to more than a 'mere recitation' of the actual malice standard."

In reaching their conclusion, the majority opinion conflates the standard of review of a demurrer with that for the sufficiency of the evidence. Though Patel includes numerous factual allegations of CNN having "multiple agents who were present during the House impeachment inquiry," seeing "transcripts of testimony and reports of the impeachment proceedings," and having no basis for the contested statements, the majority opinion incorrectly dismisses allegations in the amended complaint as having no weight, and further, improperly makes assumptions and inferences beyond a reasonable reading of the amended complaint and its accompanying documents, thus usurping the role of the factfinder at trial. At the time of a demurrer, the "factual allegations [pleaded in a complaint are] … wholly untested by the adversarial process."

This Court must "accept as true all factual allegations expressly pleaded in the complaint" and is required to interpret them and any accompanying inferences "in the light most favorable to the plaintiff." Any factual allegations that "fairly can be viewed as impliedly alleged or reasonably inferred from the facts [expressly] alleged" must be accepted by this Court as true. Looking at the allegations in their entirety for the purposes of the demurrer at issue, Patel did sufficiently allege facts that CNN acted with "knowledge of falsity or reckless disregard for the truth" to allow the amended complaint to survive the demurrer.

The majority opinion agrees with CNN that the amended complaint fails to allege facts that "brought home" the state of mind for actual malice to the individuals at CNN who made the statements. However, in addition to the factual allegations already described, the amended complaint also includes allegations of who wrote the CNN statements and actions taken by CNN agents. It is also undisputed the Report was a public document. As such, it is not unreasonable to infer under the allegations of the amended complaint that the authors acted with a "knowledge of falsity or reckless disregard for the truth." As we accept as true allegations expressly pleaded and those that can be fairly inferred, I would conclude that the amended complaint sufficiently alleged facts that "brought home" the state of mind of the authors as agents of CNN with respect to the allegedly false statements for the limited purposes of the demurrer…

Katherine M. Bolger (Davis, Wright Tremaine LLP) and John D. McGavin (McGavin, Boyce, Bardot, Thorsen & Katz, PC) represent CNN.