Delaware S. Ct. Rejects Defamation Claim Brought by Repair Shop Owner Who Provided Hunter Biden Laptop to Media

It also rejects Hunter Biden's invasion-of-privacy counterclaim, on statute of limitations grounds.

An excerpt from yesterday's 24K-word Delaware Supreme Court decision in Mac Isaac v. Politico LLC, written by Justice Gary Traynor:

This is an appeal from a Superior Court opinion and order that dismissed a computer-repair-shop owner's defamation claims against a customer, various news outlets, and a political campaign committee, as well as counterclaims brought by the customer against the shop owner. For the reasons that follow, we have concluded that the Superior Court did not err when it held that the allegedly defamatory statements did not concern the plaintiff shop owner and thus were not actionable….

In the Superior Court, Mac Isaac conceded that the October 19 Politico article was "substantially true," but argued that its headline, which stated that the "Hunter Biden story IS Russian disinformation," was false and defamatory. This decoupling of the headline from the substance of the article was consistent with Mac Isaac's complaint, in which he highlighted that "[s]tudies have shown that many readers browse headlines and do not read the actual underlying article." ….

[But] the article's headline, which is the only part of the publication identified by Mac Isaac as false and defamatory, does not mention Mac Isaac or provide any information from which a reader might think that Mac Isaac was a participant in a "Russian information operation." And the only statement in the article below the headline "of and concerning" Mac Isaac was that he initiated the chain of events that led to the laptop landing in the hands of Rudy Guiliani. That statement was true, and Mac Isaac concedes as much…. No matter how often Mac Isaac claims that the Politico headline "implicated him as being part of a Russian disinformation operation," the text of the headline is not reasonably read in that fashion. To the extent that the headline and the article together concerned Mac Isaac at all, it did so in an accurate and nondefamatory way.

{Our dissenting colleague concludes that allegations concerning earlier publications in the operative complaint "support a reasonable inference that someone following the presidential election and the Hunter Biden laptop story, which was widely reported upon as soon as the story broke, would know that Mac Isaac was the source of the laptop." We note preliminarily that Mac Isaac did not frame his argument in this Court in that way. Instead, in his remarkably short treatment of the Politico article in his opening brief, Mac Isaac cabined his argument to the Politico headline itself and only begrudgingly acknowledged that the body of the Politico article was relevant. He argued: "Plaintiff was damaged by the headline that was published which, as argued throughout the proceedings, implicated him as being part of a Russian disinformation operation. He is referenced in the article but the article itself, while accurate, is tainted by its headline." The first sentence is plainly incorrect; the headline itself did not implicate Mac Isaac at all.

More relevant, however, is whether a reasonable reader who might have identified Mac Isaac as the source of the laptop could reasonably conclude that he was the author of the Russian disinformation. That is the inference we in the majority are not prepared to draw. In our view, it is no more likely that a laptop-repair shop owner is the originator of data found on laptops entrusted to his care than it is that a used-book-store owner is the author of the text in the books on his shelves.} …

We grant that the headline could be read to mean that the former intelligence officials had concluded that the "Hunter Biden story" was in fact Russian disinformation, which they had not so concluded. But a false statement is not defamatory when it does not concern the plaintiff. For the headline to prompt a reader to connect Mac Isaac to the putatively false statement, the reader would have to consult the body of the article, which contains the admittedly accurate statement that "Rudy Guiliani … said he got [the laptop] from a Mac shop owner in Delaware who also alerted the FBI."

Herein lies the fatal inconsistency in Mac Isaac's argument: He has argued throughout this litigation that the headline must be read in isolation, and yet he concedes that the only way readers would know that the headline was "of and concerning" him is if they read the article below, which makes a passing reference to a "Mac shop owner in Delaware who also alerted the FBI." What his argument fails to account for, however, is that to find the reference to Mac Isaac, a reader must delve into the article below, which accurately reports the facts and provides non-defamatory context for the headline….

Mac Isaac's defamation claim against [Hunter] Biden suffers from the same fundamental flaw as his claims against Politico—the statements made by Biden during the CBS interview simply do not bear the defamatory meaning that Mac Isaac ascribes to them…. To summarize, upon questioning that included a brief description of the New York Post article, Biden expressed doubts concerning his ownership of the laptop. But he also posited that the laptop might belong to him. He then offered the possibilities that it was "stolen," "hacked," "or could be that it is Russian intelligence." He did not mention Mac Isaac, though in her questions, the interviewer mentioned that the New York Post article had reported that Biden had "left [it] in a Delaware repair shop in 2019."

Mac Isaac now contends—as he did in the Superior Court—that, by answering the CBS interview questions as he did, Biden "imputed that [he] was involved in one or more crimes, including stealing [Biden's] laptop, hacking [Biden's] laptop, and being part of a plot by Russian intelligence." Even though Biden does not mention him by name or otherwise in the interview, Mac Isaac claims that these statements are nonetheless "of and concerning" him. He contends that, by the time Biden gave the interview in April 2021, he had "become so intertwined with the Hunter Biden laptop story" that a reasonable person could conclude that the statements were "of and concerning" him. We disagree….

The court rejected Mac Isaac's claim against the Biden For President Campaign Committee on procedural grounds. And it rejected Biden's cross-appeal against Mac Isaac for allegedly invading Biden's privacy; the claim was brought too late and therefore barred by the statute of limitations.

Justice Karen Valihura dissented as to the claim against Politico:

Mac Isaac adequately alleged that the Politico headline was a defamatory statement, in other words, that it tended "to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Mac Isaac alleged that the "50 former senior intelligence officials did not state that the Hunter Biden story IS Russian disinformation – that was POLITICO." He alleged that "POLITICO knowingly published the article with a false headline stated as fact about [Mac Isaac] and others involved in releasing the information about the laptop." He alleged that the Politico headline included "allegations that the information published by the NY Post, which POLITICO clearly identifies the information as coming from Plaintiff, was part of a Russian disinformation campaign, thereby directly implying that the Plaintiff [was] part of a Russian disinformation campaign and/or, more specifically, a Russian agent." He alleged that "[f]ormer Director of National Intelligence James Clapper, one of the former senior intelligence officers who signed the public statement, said Politico's October 19, 2020 article 'deliberately distorted' what was said."

He pled that the headline "alleges that Plaintiff committed crimes including (but not limited to) working with Russians to spread 'disinformation' relating to the son of Democratic Party nominee, now President, Joseph Biden, thereby implicating Plaintiff in the commission of a treasonous act by being part of an attempt to undermine American democracy and the 2020 Presidential election." He similarly alleged that "POLITICO's publication of false statements imply that Plaintiff has committed an infamous crime, i.e., treason and/or other crimes against the United States of America by participating in a Russian attempt to undermine American democracy and the 2020 Presidential election." …

These well-pled facts, accepted as true for the purposes of reviewing a Rule 12(b)(6) motion to dismiss, make it reasonably conceivable that Politico's headline that the "Hunter Biden story is Russian disinfo" would damage the reputation and community standing of anyone alleged to have been part of a Russian disinformation campaign to interfere with a presidential election. It is reasonably conceivable that as a publicly known source of Hunter Biden's laptop, and thus the source of the "story" at issue in the headline, the Politico headline implied that Mac Isaac was part of a Russian disinformation campaign. It is reasonably conceivable that being accused of being part of a Russian disinformation campaign would damage Mac Isaac's reputation and subject him to distrust, scorn, ridicule, hatred, and contempt in his community, as well as the loss of his business. In short, Mac Isaac adequately alleged that Politico's headline was defamatory.

[And] Mac Isaac adequately alleged that the Politico headline was "of and concerning" him. Admittedly, this is a close issue. Mac Isaac alleged that the Politico headline included "allegations that the information published by the NY Post, which POLITICO clearly identifies the information as coming from Plaintiff, was part of a Russian disinformation campaign, thereby directly implying that the Plaintiff [was] part of a Russian disinformation campaign and/or, more specifically, a Russian agent."

The Majority views this allegation as a concession that the only way readers would know that the headline was "of and concerning" him is if they read the entire article, which makes a passing reference to a "Mac shop owner in Delaware who also alerted the FBI." But Mac Isaac's acknowledgment that the Politico article identified him as the source of the information was not a concession that he could only be identified through the article's identification of him. Rather, Mac Isaac also alleged that the original New York Post article notified "the public and the media" that the laptop had originated from his computer repair shop. Further, he alleged that later the same day that the article was published, "subsequent to the NY POST's disclosure of [his] identity," other media outlets did identify him, interview him, and write articles about him. These allegations, which should be accepted as true for the purposes of this appeal, support a reasonable inference that someone following the presidential election and the Hunter Biden laptop story, which was widely reported upon as soon as the story broke, would know that Mac Isaac was the source of the laptop.

In view of this reality, Mac Isaac plausibly argues that he "may not have been specifically named in the defamatory statements/publications, but he had become so intertwined with the Hunter Biden laptop story that a common mind, especially a person familiar with Mac Isaac, would find the defamatory statements/publications by the Defendants 'of and concerning' the Plaintiff." {The Majority states that Mac Isaac did not frame his argument in this Court this way. I disagree. [Details omitted. -EV]} Thus, I agree with Mac Isaac that a reasonable reader would have connected these dots even without the identification of Mac Isaac within the body of the October 19, 2020, Politico story—a fact rigidly relied upon on by the Majority.

{I do not think the Majority's analogy of Mac Isaac's computer repair shop to a used bookstore is apt, and Mac Isaac's allegations refute such a notion. Bookstore owners do not take apart books and repair, recover and transfer the contents of the books to hard drives.}

David J. Margules, Lauren R. Russell, and Kaitlin M. Gurney (Ballard Spahr LLP) represent Politico. Joseph M. Turk (Biden for President Campaign Committee) and David J. Burman and John M. Devaney (Perkins Coie LLP) represent the Committee.