FBI Director Kash Patel Loses Defamation Lawsuit Over Morning Joe Statements

The wild things are in the nightclubs.

From today's by Judge George C. Hanks, Jr. (S.D. Tex.) in Patel v. Figliuzzi, which stemmed from his exchange on MSNC's Morning Joe with defendant Cesare Frank Figliuzzi, Jr., "the former assistant director for counterintelligence at the FBI":

Host: "So, Frank, let's turn to FBI Director Kash Patel, who has sort of taken a surprisingly backseat role—at least to this point, in the first 102 or 103 days, wherever we are right now. What do you make of that, that he's just been a little less visible than I think a lot of people and Trump observers expected him to be?"

Figliuzzi: "Yeah, well, reportedly, he's been visible at nightclubs far more than he has been on the seventh floor of the Hoover building. And there are reports that daily briefings to him have been changed from every day to maybe twice weekly. So this is both a blessing and a curse, because if he's really trying to run things without any experience level, things could be bad. If he's not plugged in, things could be bad, but he's allowing agents to run things. So we don't know where this is going."

Patel claimed the "been visible at nightclubs far more than he has been on the seventh floor of the Hoover building" was actionable defamation, but the court found that it was nonactionable rhetorical hyperbole instead:

"Rhetorical hyperbole" is a subset of opinion, which Texas courts have "defined as extravagant exaggeration that is employed for rhetorical effect." "Statements that would be perceived by the audience as 'rhetorical hyperbole' do not constitute defamation." In this way, Texas law protects "statements that cannot reasonably be interpreted as stating actual facts about an individual." "Whether an utterance is … rhetorical hyperbole turns not on what the speaker intended but what a reasonable person would believe and presents as a question of law for the court to decide."

The Court finds that Figliuzzi's statement, when taken in context, cannot have been perceived by a person of ordinary intelligence as stating actual facts about Patel. As alleged, Figliuzzi's statement about Patel—again, made in response to a question about Patel's decreased visibility as Director of the FBI—was that "he's been visible at nightclubs far more than he has been on the seventh floor of the Hoover building."

A person of reasonable intelligence and learning would not have taken his statement literally: that Dir. Patel has actually spent more hours physically in a nightclub than he has spent physically in his office building. By saying that Patel spent "far more" time at nightclubs than his office, Figliuzzi delivered his answer "in an exaggerated, provocative and amusing way," employing rhetorical hyperbole.

For the quintessential Texas defamation opinion that discusses hyperbole—alongside parody—see New Times, Inc. v. Isaacks (Tex. 2004), the "Where the Wild Things Are" / "Do they make handcuffs this small? Be afraid of this little girl" case.

Comments

[not guilty]

As Grouch Marx said, time wounds all heels.

[Eugene Volokh]

Do you mean this guy?

[Stupid Government Tricks]

That's terrible. An indirect pun based on a typoe. Damn I wish I'd thought of that.

[wvattorney13]

I agree that if we are trying to determine the exact number of hours and minutes that Patel is in night clubs and compare that to the hours and minutes he is at work then that is improper, far too literal, and should not be the subject of defamation.

But the larger point is that the speaker is accusing Patel of chronic absenteeism and of being a drunk. That is the meat of the accusation and is defamatory if it meets all of the criteria.

[Sarcastr0]

It's been quite a while, but I recall learning in torts that defamation in particular must be specifically plead.
'The meat of the accusation' won't cut it.

[ReaderY]

Why not? Plead the quoted statements, and plead the meat - the statements clearly indicate to an ordinary person that the plaintiff is a chronically absent drunk.

What’s wrong with that? That’s more than specific enough to satisfy anybody but a defense lawyer.

[BrianChong]

Unless you're an obese black election cheater from Georgia, of course. Then you don't need any evidence to convince an Obama judge and a biased jury.

[ReaderY]

So as long as you do it in an “exaggerated, provocative, and amusing way,” you can say anything about anyone, no matter how libelous?

Even if exaggerated, the gist or sting of the statements - that Patel is lazy, doesn’t work much, and doesn’t keep up with or know what’s going on - seem very clearly questions of fact.

I’m not a big friend of Kash$. But it seems to me that the stayements are falsifiable in substance even if not 100% accurate.

It would seem one would have to be a member of the intelligentsia - lawyer, professor, or similar - to speak with the precision necessary to commit libel these days. Mere ordinary speech is insufficiently precise.

It’s pretty much like obscenity - the law exists. But it’s so hard to prove that one pretty much has to deliberately set out to break it and have good legal advice to help one in order to be found guilty of it, parsing the cases carefully to find the few instances in which the law actually applies.

Whether said in an exaggerated manner or not, the gist of the statements are both defamatory and falsifiable.

[ReaderY]

So for example, as long as I make an exaggerated statement - he consumes an ocean of whiskey a day, he’s stolen enough money to buy a medium sized country, his backyard is littered with the bodies of young sodomized boys - I can accuse him of any crime, in a way that clearly indicates I seriously mean he has committed the underlying crime, with complete impunity. All I have to do is say I was joking.

If the law of libel creates that easy a road map to avoiding liability, the concept is more or less like interstate commerce. It exists. But as long as you say the right magic words, you can say whatever materially false things that destroy a person’s reputation you want, without having to worry about it in the least.

[Gregory]

Response to the first question, yes. No need to read the rest of it.

[BrotherMovesOn]

ReaderY, as Gregory said, yes.
Oh, I see we have legal analysis from this BrianChong fellow ... hold on a minute.

[BrianChong]

There was no way this "African-American" judge was ever going to rule for anyone affiliated with Trump.

[Frank Drackman]

Kash should pay Peter Blunt to handle it the Evel Knievel way.

[Estragon]

Seems correct. In a more general sense I’m not sure how much help Ka$h did himself in these defamation lawsuits over his drinking by being publicly recorded chugging a beer in the hockey team’s locker room.