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.

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


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  • identicon
    Anonymous Coward, 6 Feb 2020 @ 11:11am

    Absurd, but seems like a slam dunk for getting overturned on appeal or at the next stage. Big waste of money either way.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 11:41am

    Fire consumes all you know

    “Clearly politically motivated”

    Go ahead fox boy use that we can ALL go down on this ship together with your your line of thought and plenty are willing to ablige sad to say lol

    reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 6 Feb 2020 @ 12:22pm

    Sadly

    Unfortunately, some of these so-called judges will bias the outcome of their cases based on personal preference. Judicial activism needs to be stamped out, and hopefully this decision is going to get smacked down upon appeals.

    reply to this | link to this | view in chronology ]

  • icon
    Russ Clarke (profile), 6 Feb 2020 @ 1:18pm

    Thanks Obama

    Unfortunately, this is one instance where it's not funny to write that.
    https://en.wikipedia.org/wiki/Amos_L._Mazzant_III

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Feb 2020 @ 2:35pm

      Re: Thanks Obama

      I see Judge Mazzant is in the Eastern district of Texas, the patent troll's paradise. Can we persuade Mexico to take it back?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 6 Feb 2020 @ 2:53pm

        'Oh no, thats your problem now.'

        I mean, you could try, but much like trying to offload nuclear waste the question they'd be sure to ask is '... why would we want that again?'

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 7 Feb 2020 @ 5:55am

          Re: 'Oh no, thats your problem now.'

          Followed by "and since you reminded us of east texas, we'd like you to build that wall you promised so we don't need to see it anymore".

          reply to this | link to this | view in chronology ]

  • icon
    Darkness Of Course (profile), 6 Feb 2020 @ 1:29pm

    Welcome to Texas

    Where patents are king and those nasty amendments, except the 2nd, don't count in a Federal Court.

    reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 6 Feb 2020 @ 1:41pm

    A little nuance to this story. The district judge's order is actually adopting the report and recommendation of the magistrate judge. That means that the magistrate considered the motion first, received the briefs, handled any oral argument, and then wrote a report and recommendation, at which point both sides could offer a response. Only after that process did the district judge issue his decision. He's adopted the position of the magistrate. So that's two judges in that courthouse who are thumbing their noses at precedent.

    Back when I clerked for a federal judge, I loved the report and recommendation. Usually the magistrate had already done the heavy lifting. Looks like here the district judge and his clerk should have done some of the lifting on their own.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 6 Feb 2020 @ 1:44pm

    Butt-hurt

    Butowsky? More like Butt-ow-sky.

    reply to this | link to this | view in chronology ]

  • identicon
    TripMN, 6 Feb 2020 @ 2:34pm

    You have to say the words

    It isn't the same because the journalist clearly didn't use the words "quid pro quo"... wait, wrong court documents.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 6 Feb 2020 @ 3:00pm

    Everything's bigger in Texas…

    …and that includes the dumbassery.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 9:57pm

    Lawfare is running rampant in this country. It's just another front in the culture war. There is no principle the right won't pervert to achieve its ends.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 7 Feb 2020 @ 6:03am

      Re:

      "...There is no principle the right won't pervert to achieve its ends."

      Or the left.

      The republicans have become such an outrageous bunch of pseudoreligious and openly malicious asshats that in comparison people look to the democrats as being an upstanding outfit.

      I don't envy the US voter who has to go to the polls and may find himself in the choice of voting either for Trump or for Biden, knowing that the best possible choice still means 4 years worth of getting dipped in shit.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Feb 2020 @ 10:05am

        Re: Re:

        I don't envy the US voter who has to go to the polls and may find himself in the choice of voting either for Trump or for Biden, knowing that the best possible choice still means 4 years worth of getting dipped in shit.

        I'm an Independent. Vote for me! Why? Think about it this way: You know you won't get any better from the Democrats or Republicans, and I couldn't possibly be worse! So, a vote for me means the same (at minimum) as what you'd get otherwise, but hey, I could be better! :D

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Feb 2020 @ 10:12am

          Re: Re: Re:

          Fuck no. Any vote not for the most electable competitor to Trump is a vote for Trump.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Feb 2020 @ 11:00am

            Re: Re: Re: Re:

            If you don't like the tactical voting conundrum...push for something other than first past the post/winner-take-all voting.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 7 Feb 2020 @ 11:31am

              Re: Re: Re: Re: Re:

              I advocate for ranked choice voting and money out of politics. But you can't get those if you vote for Republicans. You also can't get them with some Democrats, but the more progressive ones do advocate for those.

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Feb 2020 @ 11:26am

            Re: Re: Re: Re:

            Fuck no. Any vote not for the most electable competitor to Trump is a vote for Trump.

            I was really only joking with my previous comment, but... as long as you (and everyone else) thinks this is true, it will be.

            Both the Republicans and the Democrats have a strong interest in convincing you that voting for them is the only way to go if you don't like the other party's candidate. It keeps them both in power, and they're OK with that. Each is "The Devil You Know" to the other. The reality is that both parties need to go - they are both more interested in maintaining their own power than they are in the actual welfare of the nation.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 7 Feb 2020 @ 11:30am

              Re: Re: Re: Re: Re:

              I agree. But in the mean time, without ranked choice voting and money out of politics, you can't get further left by voting for Republicans, so Democrats actually are the only option at the federal level right now.

              reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 10 Feb 2020 @ 5:56am

              Re: Re: Re: Re: Re:

              "I was really only joking with my previous comment, but... as long as you (and everyone else) thinks this is true, it will be. "

              Sadly what you consider a joke the US political establishment from both sides of the aisle are pushing as hard as they can.
              Meaning you don't end up joking. You end up being one more voice braying the mindless message that "Democracy is dead, you HAVE to hold your nose and vote for either the knave or the crook, lest all be lost!".

              Hence why it's a good thing to use a sarcasm tag. It may be a sign of the times that Poe's Law will bite almost no matter how outrageous your joke is.

              "Both the Republicans and the Democrats have a strong interest in convincing you that voting for them is the only way to go if you don't like the other party's candidate."

              That, and the whole strategy for both parties is to focus on mudslinging the other guy - because that has a better effect compared to trying to actively cater to the diverse swing voters. The US polarization didn't emerge from a vacuum but has been heavily bolstered by both parties trying their best to tear down all possible bridges between them.

              With the entire campaign machine always aimed at tearing down the opposition and 90% of the effort focused on the swing voters, the first priority becomes to convince the citizenry (especially those swing voters) that your ballot is lost unless you agree to place it on either of the two main parties.

              As you imply, this is one of the ways in how both of the major US parties cooperate in holding the election process hostage.

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Feb 2020 @ 1:57am

    Tim Cushing is supporting the conspiracy theory created by the Democrats to defer attention away from the contents of the Podesta and DNC leaks that there was actually a hack by Russia. There is no evidence for this position besides claims made by a private company, Crowd Strike. The evidence (server) was never made a available to the FBI. Meanwhile former British Ambassador Craig Murray has claimed that he was the courier of the leak, and former Technical Director of the NSA William Binney claims it was a leak based on technical analysis, i.e it could not have been a hack.

    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.

    I know you're going to flag this. Whatever. I do not know if Seth Rich was the leaker, but am highly confident that the DNC leaks were a leak.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 7 Feb 2020 @ 3:24am

      Re:

      Your statement falls flat on it's face if one just examines the timeline for the events in question.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2020 @ 5:28am

      Re:

      even if all that is true, it doesn't make it ok to sue NPR for reporting on a lawsuit you putz.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2020 @ 10:02am

      Re:

      Tim Cushing is supporting the conspiracy theory created by the Democrats to defer attention away from the contents of the Podesta and DNC leaks that there was actually a hack by Russia.

      And yet:

      https://www.cnbc.com/2020/02/06/obama-response-to-2016-russian-meddling-had-many-flaws-senate-r eport.html

      I'm supposed to believe that there wasn't any Russian hacking, but I should blame Obama for not responding to it?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2020 @ 10:26am

      Re:

      Where did you get your computer science degree? What field do you work in? Do you understand how servers work? Web-hosting isn't done on a single server for large organizations anymore. The cloud is a dispersed network. There's not one server that was hacked, but a system of servers. Examination of the physical servers isn't necessary (or useful) because all the data is able to be imaged and was in fact provided to the FBI in 2016. The hardware is irrelevant to the investigation. You're just showing your ignorance by perpetuating this bullshit.

      There is no evidence for this position besides claims made by a private company, Crowd Strike.

      This is blatantly false. Fidelis and FireEye also examined the evidence. And the FBI has had copies of the images to draw their own conclusions for close to four years now. In 2017, James Comey confirmed this in testimony to Congress.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 7 Feb 2020 @ 7:48pm

      Re:

      [Asserts facts not in reality]

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Feb 2020 @ 2:20pm

    "You cannot sue someone over statements they made in court"

    Seriously? As a matter of fact, you can sue someone over statements made in court, if they're false/untrue. Making false statements in court is just as libelous as making a public comment on the street. You can absolutely be sued for it. You can also be charged for perjury.

    Just because you think you can't be sued doesn't make it any less true. In the final count, only what the court says is what's true.

    "You cannot sue a journalistic entity for reporting on the contents of a lawsuit"

    Where do these people come up with this bullshit? It's the responsibility of every journalist and reporter to ensure that whatever it is they are reporting on true and factual. Anyone in the news media who doesn't do their due diligence to ensure that their story is accurate is not doing their damn job.

    News media are always being sued over libel. Once again, just because you say it ain't so doesn't mean it ain't so. Reporters and journalists who don't research their own story to ensure their story is accurate are just bad reporters and they very well can be sued. And, right so, they should be sued. Reporters and journalists have a responsibility to ensure they are bringing people the truth, not just telling the story with an agenda.

    Bad reporters are just like bad cops. It only takes one to stain the reputation of everyone in their profession.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Feb 2020 @ 7:16pm

      Re:

      You're an idiot.

      The journalist factually reported what was alleged in the lawsuit. They didn't claim what was alleged was true. You're attacking a journalist for doing what you said they should do.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 8 Feb 2020 @ 3:10am

      Re: "You cannot sue someone over statements they made in court"

      As a matter of fact, you can sue someone over statements made in court, if they're false/untrue

      Do you have any case cites for this proposition, preferably from appellate courts? I am pretty sure that, if you do, they are not from my home state. And, frankly, I would be surprised if they were from any of the "lower 48".

      reply to this | link to this | view in chronology ]

  • identicon
    dickeyrat, 7 Feb 2020 @ 4:08pm

    Ah, the true beginning days of Blump's Neue Amerika! The Senate cover-up is now written into history; we are now in a Dictatorship. In this Republica Banana Lord-god Blump may do anything his fat-encrusted "heart" desires, to anyone, any private citizen (such as Hunter Biden, for starters), with full sanctioned impunity. Anyone who dares question or challenge the Reich will increasingly be viewed as a seditionist threat to The Party and its well-being. Ten or so years from now (with Blump still playing his role as Our Dear Respected And Beloved Fearless Leader), such vile seditionists will be populating the concentration camps that hold children today, awaiting their brief stays in the Ovens. The Rethugnicans will have the Amerika they've only dreamed about, and Putin and his ex-K.G.B. cohorts will reap the inner rewards of nearly 15 years of rule by their useful idiots in Washington. We see now only the beginning!

    reply to this | link to this | view in chronology ]


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