Federal Court Ignores Journalist Privilege For Reporting On Court Documents; Allows Bullshit Defamation Suit To Proceed

from the your-decision-is-bad-and-you-should-feel-bad dept

An unbelievably bad decision has been handed down by a federal court in Texas that blows past everything we know (and have long known) about the First Amendment to allow a very questionable defamation lawsuit to proceed. (h/t Andrew Fleischman)

Conspiracy theorist/Fox News commentator Ed Butowsky -- represented by Devin Nunes' lawyer Steven Biss -- claimed he was defamed by an NPR article discussing a lawsuit filed by former Fox commentator Rod Wheeler, which alleged the broadcaster and Butowsky worked together to whip up some alternative facts about the death of Democratic Party staffer Seth Rich.

Rich's death has been catnip for conspiracy theorists and Butowsky apparently bit. He allegedly helped propel a conspiracy theory into Fox News' broadcasts, supposedly in an effort to draw attention away from the investigation into the Trump campaign's ties to the Russian government.

The NPR article mentions (several times!) that everything its reporting on was drawn from Wheeler's lawsuit. It made no difference to Butowsky and Biss, who proceeded to sue the public broadcaster for defamation. It should have made a difference to the federal judge. But it didn't.

Despite years of precedent affirming journalists' right to report on allegations made in lawsuits -- whose underlying documents can (for the most part) be viewed by anyone -- the Texas court decided decades of precedent mean nothing.

These are the allegations (tied to defamation, civil conspiracy, and business disparagement claims), as recounted briefly by the court. From the decision [PDF]:

Plaintiff claims Folkenflik knowingly and intentionally conspired with Douglas H. Wigdor (“Wigdor”) to promote, publish, and republish a demonstrably false and defamatory narrative about Plaintiff.

David Folkenflik was the author of the post. Douglas Wigdor represented Rod Wheeler in his lawsuit. Where the conspiracy comes from, no one but Butowsky knows. But Butowsky knows conspiracies, so here were are.

Folkenflik did not fabricate anything in his article. In fact, he pointed out frequently everything being reported was drawn from Wheeler's lawsuit. Here's every time Folkenflik indicated the content of his reporting was drawn from a publicly-filed lawsuit:

The Fox News Channel and a wealthy supporter of President Trump worked in concert under the watchful eye of the White House to concoct a story about the death of a young Democratic National Committee aide, according to a lawsuit filed Tuesday. [...] The explosive claim is part of a lawsuit filed against Fox News… [...] His suit charges that a Fox News reporter created quotations… [...] The lawsuit focuses particular attention on the role of the Trump supporter, Ed Butowsky, in weaving the story. [...] The first page of the lawsuit quotes a voicemail and text from Butowsky… [...] In the lawsuit, the private investigator sets out a different version of events… [...] According to the lawsuit, Trump press secretary Sean Spicer… [...] In the suit, Wheeler alleges that Butowsky was using the White House references to pressure him. [...] Wheeler's lawsuit alleges that Butowsky's generosity is clearly politically motivated. [...] According to the account in the suit, Butowsky cautions Wheeler before they set out to meet the Riches… [...] According to the transcripts in the lawsuit… [...] According to the lawsuit, Zimmerman promises to have those lines removed… [...] That same day, the suit recounts, Zimmerman writes a letter to Seth Rich's father…

If it feels like I'm beating you over the head, I'm sorry. I'm only beating you because I can't (legally or physically) beat Judge Amos L. Mazzant over the head for issuing 37 pages of dissembling bullshit that allows this stupid lawsuit to proceed.

Among the things we all should know about defamation lawsuits, these two are key:

1. You cannot sue someone over statements they made in court. This includes court filings. Attorney Steven Biss is at least smart enough to know he can't sue Wheeler for filing his own defamation lawsuit, which includes everything NPR reported. 2. You cannot sue a journalistic entity for reporting on the contents of a lawsuit. As long as the journalist makes it clear they're reporting on allegations contained in a lawsuit, they cannot be sued for defamation.

That's the way it should be. But Judge Mazzant says this truism just isn't true, not as long as he's running the proceedings.

Here's what Mazzant says, referencing a state supreme court decision that found in favor of another entity reporting on the contents of lawsuit. [All emphasis mine.]

[T]he published statements in this case are different from the News’ articles in Hall II. In Hall II, the Texas Supreme Court noted the statements made by the News “fairly and accurately reported on the accusations, and qualified all of it with pervasive sourcing language .”

It then gives several examples of where the News added language about the source of the contents of its article -- namely, the lawsuit it was reporting on.

Mazzant then looks at NPR's reporting -- the stuff I quoted above -- and decides Folkenflik did not do this enough to warrant the protections of journalistic privilege.

Here, the Court is not convinced Defendants qualified their statements with “pervasive sourcing language.” The Reports here do not state, “according to court documents,” as the News qualified its statements in Hall II.

WHAT THE ACTUAL FUCK.

I guess Mazzant doesn't consider the words "lawsuit" or "suit" to imply the same thing as "court documents." Jeeeeezus.

And he goes on:

Additionally, even if the statements are considered a true report of the Wheeler complaint, as Defendants argue, the organization of the comments combined with the speculative commentary imply wrongdoing.

"Speculative commentary?" Please indicate on the article where the NPR reporting offended you, Judge Mazzant. All the article did was tie the allegations to the timeline, suggesting some events triggered other events. This "speculation" was buttressed by comments from individuals in the timeline, which should have been more than enough to move this past mere speculation and into the sort of reporting we should expect from anyone reporting on events like these.

Judge Mazzant has created a chilling effect by suggesting news outlets should wait until lawsuits are completely resolved before reporting on them. This doesn't make anything better for the public and encourages similar baseless lawsuits from individuals who have the time and money to file lawsuits almost solely intended to wound their targets, rather than redress actual grievances. This is a terrible decision and NPR will certainly appeal it. But it will have to spend its own money to overturn an obviously incorrect decision and that alone will probably make Butowsky and Biss very happy.

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Filed Under: 1st amendment, court documents, david folkenflik, defamation, douglas wigdor, ed butowsky, free speech, journalism, rod wheeler, seth rich, steven biss, texas

Companies: npr