Court Tells Pro-Trump 12-Year-Old That Calling Him A Defender Of Racism And Sexual Assault Is Protected Speech
from the that's-how-speech-works,-snowflake dept
For a group prone to calling others “snowflakes,” they sure seem to get their feelings hurt pretty quickly. Fans of President Trump have filed a lot of defamation lawsuits, litigiously angry they’ve been called things because of things they’ve done. This includes notable fans of Trump, such as… President Trump himself, as well as his campaign.
One of the youngest Trump fans sued Newsweek over a piece covering the 12-year-old boy (who is referred to only as “C.M.” in the lawsuit) and his MAGA-related antics. The Newsweek article discussed the minor’s pro-Trump videos, made more popular by local coverage in C.M.’s hometown. Here’s how C.M. turned from precocious pre-teen to a limited purpose public figure. From the Third Circuit Appeals Court decision [PDF]:
During the 2016 presidential campaign, C.M. got a lot of attention. Before he had even turned twelve, he had publicly endorsed now-President Donald Trump and released videos seen by thousands. In one popular clip, C.M. called Hillary Clinton “deplorable.” That video went viral, attracting more than 325,000 views on Facebook alone. From Russian television stations to Philadelphia magazine, many wanted to hear from “Philly’s Biggest Trump Supporter.”
C.M. obliged. In an interview with Philadelphia magazine, he said: “Madonna needs to leave the country. That would help make America great again. She’s trash. She said she wanted to blow up the White House.” After being asked why his Facebook posts use “the same kind of vitriol” that C.M. had said “is tearing this country apart,” he explained: “Look, it’s just a joke. They’re calling Donald Trump a psychopath. They say he’s mentally unfit. They’re demonizing the Republican Party. They’re saying most Republicans are racist. The people I talk about in these posts really have it coming to them.”
Newsweek’s article discussed C.M. and another 12-year-old Trump fan, M.M. It mentioned M.M.’s interview with alleged jailbait enthusiast Judge Roy Moore. It discussed C.M.’s appearance on Infowars, where he referred to Megyn Kelly’s “hotness” and said things about “globalists.”
What C.M. sued over was this summary of C.M. and M.M.’s media appearances.
“These kids are being weaponized,” says Todd Gitlin, professor of journalism and sociology at Columbia University. He says the [M.M.] and [C.M.] interviews “camouflage” positions of the hard right “as feel-good sweetness and light, when, in fact, they are defending raw racism and sexual abuse.”
The Newsweek article — with C.M. and M.M.’s names and faces redacted — is attached to the ruling. There’s nothing in it approaching actionable, but here we are, one level up in the federal court system, listening to an Appeals Court (re)state the obvious. This isn’t defamation. This is protected speech.
At the heart of this appeal is the first pair of quotations from Professor Gitlin, at the end of the article’s second paragraph: “These kids are being weaponized” and “they are defending raw racism and sexual abuse.” Those characterizations follow the article’s factual description of M.M.’s interviews with Roy Moore and Jennifer Lawrence, vice president of the America First Project, and C.M.’s interview with Infowars’s Alex Jones. Only after describing those interviews does the article offer Gitlin’s opinion that “[t]hese kids are being weaponized” and that the “hard right” is using their interviews to “camouflage … defending raw racism and sexual abuse.”
But those characterizations make no factual claims about C.M. The article does not say that C.M. is a racist or sexual abuser. Nor does it accuse C.M. of having made any specific statements defending “raw racism and sexual abuse.” Instead, it quotes Gitlin’s opinion about how the “hard right” is using C.M.’s and M.M.’s opinions. His opinions may seem harsh, but that does not strip them of their absolute privilege.
The court points out any other reading of defamation law would be ridiculous. Speech has consequences — even protected speech. If the minors didn’t want someone to suggest they “defend raw racism and sexual abuse,” perhaps they shouldn’t have been out in public defending people accused of raw racism and sexual abuse.
While saying that someone committed a crime may be defamatory, publicly defending those accused of racism or sexual abuse is not unlawful. We see no evidence that Pennsylvania would let defenders of those accused of bigotry or crime bring defamation actions whenever a publication mentions their defense.
C.M.’s status as a minor has no effect on this lawsuit. C.M. made himself at least a limited-purpose public figure by agreeing to do an interview with a local magazine. It was this interview — along with C.M.’s interview with Alex Jones — that turned him into a public figure. The bar is higher for public figures, who have to prove actual malice: that Newsweek knew it was publishing false information with a reckless disregard for the truth. Since this case deals with protected opinions, there’s nothing in there for C.M., no matter how much his complaint flails around searching for something actionable.
C.M. cites three pieces of circumstantial evidence. First, he argues that Newsweek “grossly departed from professional journalistic standards” by not asking C.M. or his parents to comment for the article. Second, he charges that Newsweek must have done so to improve its “declining and anemic sales and online hits.” Third, he stresses that Newsweek put a large photo of C.M. at the top of the article. Even taken together, these facts fall well short of actual malice.
Not asking someone for comment is not defamation. It never has been. The lower court said that even an “extreme departure” from journalistic standards would not rise to the level of defamation and the Appeals Court agrees. That Newsweek sought to profit from the publication of the article doesn’t change the math. Newsweek would like everything it publishes to help it turn a profit, not just articles about pre-teen Trump fans. And the accusation about the photo makes the least sense. Here’s the court’s response to that claim:
The photo shows an energetic C.M. holding up a 2016 Trump campaign sign. That is all.
The court sums it all up by reminding the minor he entered the political arena. Newsweek didn’t drag him into it. If he enjoys the freedom to say things about Trump’s political opponents, Newsweek enjoys the freedom to report on his pro-Trump efforts as well as draw inferences from his actions.
In the rough-and-tumble of politics, C.M. must endure offensive opinions and heated rhetoric. The First Amendment protects even the most derogatory opinions, because suppressing them would chill robust political discourse. As long as an opinion relies on disclosed facts, it is privileged. That is what happened here. And C.M. did not plead that Newsweek knew the facts were false or recklessly disregarded the truth. We will thus affirm.
If C.M. wants to continue making a federal case of it, he’s welcome to appeal this decision one more time. But even if the Supreme Court leans more right than left these days, there’s no way it’s going to start calling protected opinions defamation. This was a waste of everyone’s time, but mostly Newsweek’s. And that may have been the point. A lot of these losing lawsuits are mostly demonstrative — ones that allow the plaintiffs to waste their targets’ time and money while making themselves out to be martyrs for the conservative cause. A federal anti-SLAPP law would go a long way towards discouraging these buffoonish lawsuits. Once it’s the plaintiffs’ money on the line, there’s going to be a lot less litigious showboating.