President Trump, who keeps pretending he’s for free speech, but who has filed more defamation lawsuits against more media organizations than any president in history (combined), has done so again. This time, he has sued the British Broadcasting Corporation (BBC) in Florida (naturally). For context: the only other president to come anywhere close was Teddy Roosevelt, who sued a Michigan newspaper for calling him a drunk—and that was while campaigning as an ex-president, not while actually holding office.
At issue was a BBC Panorama documentary about January 6th, in which there is (at worst) a slightly awkward edit: two separate sentences of Trump’s speech were shown one after another, despite being separated by over half an hour of Trumpian ramblings. The original claim was that this edit somehow changed the meaning of what Trump said, though in the past few days, Trump has been falsely claiming that the documentary used AI to make him say things he didn’t say.
The lawsuit makes zero mention of AI. Instead, it claims that they edited the two sentences together in a way that was misleading.
The lawsuit isn’t a surprise. He’s been talking about this for a few weeks now, even though (1) the BBC did nothing wrong, (2) the BBC still apologized, (3) the BBC effectively fired those who did the controversial edit, (4) the BBC has promised never to show the documentary again, and (5) the BBC has since bent over backwards to portray Trump positively.
The suit “does not have any legal basis, either on defamation or jurisdictional grounds,” said Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.
“This is nothing more than the president’s latest effort to intimidate media companies that he sees as adversarial to his administration,” he said.
As he notes, the first hurdle is going to be the jurisdiction. Suing in Florida is a choice, given that the BBC only showed the documentary in the UK, not anywhere in the US, let alone Florida. Showing that the documentary somehow harmed Trump’s reputation in Florida will be virtually impossible if it actually got to that point (which it won’t).
The complaint tries to get around this by—I shit you not—claiming that because VPN usage is up in Florida, it likely means people are using VPNs in Florida to appear to be in the UK in order to watch BBC streams that are geo-locked to the UK. No, really:
According to vpnMentor, a VPN research firm, VPN usage in Florida has skyrocketed since 2024, with a 51% increase in demand on December 19, 2024, and an over 1,000% increase in VPN usage at the beginning of 2025.
Florida streamers have opted to use VPNs to increase their “streaming freedom.” Among the most popular streaming services accessed by viewers using a VPN is BBC’s online streaming platform, BBC iPlayer.
To that end, an article published by Tom’s Guide, a reputable technology news outlet, revealed that a VPN usage survey showed that approximately 41% of VPN subscribers use the service to stream content, citing BBC iPlayer as an example of what a VPN subscriber could view using a VPN.
The Panorama Documentary’s publicity, coupled with significant increases in VPN usage in Florida since its debut, establishes the immense likelihood that citizens of Florida accessed the Documentary before the BBC had it removed.
That is the kind of argument that should get a lawyer sanctioned.
Then there’s the actual malice part of this. It’s unlikely that Trump can show actual malice here, since (as a public figure) that would require showing that the BBC knew this was “false” or that they ignored evidence of the falsity of the statement. But that’s a problem since it wasn’t false. Florida is a state that recognizes a version of “defamation by implication,” in which true statements presented in a way that implies a defamatory fact can still be defamation, but it’s difficult to see how this edit rises to the necessary level, which would require the BBC to have deliberately decided to misrepresent the facts in this way.
The supposed smoking gun in the lawsuit is an internal memo that was made public recently, in which some employees raised concerns about the edit, which the lawsuit uses in its weak attempt to manufacture actual malice.
As set forth in a damning and recently leaked BBC internal whistleblower document, the BBC intentionally used the Panorama Documentary to maliciously, falsely, and defamatorily make it appear that President Trump explicitly called for violent action and rioting, and that he “said something he did not,” by splicing together footage from the start of the Speech with a separate quote that he said nearly 55 minutes later, while omitting his statement calling for peace, made less than one minute after his first statement urging supports to cheer their senators and congressmen at the Capitol. Such distortion of the President’s speech by the BBC “materially misled viewers.”
Here’s the problem with that theory: Internal editorial debate about whether an edit works is not evidence of actual malice under its legal definition. It’s evidence of editorial standards. If anything, it shows the BBC was wrestling with how to responsibly present the material—the opposite of reckless disregard for the truth. Trump’s lawyers are trying to weaponize normal journalistic process as proof of bad faith, which is both legally nonsensical and a chilling attack on newsroom deliberation.
There’s a separate issue in Florida, as well, which is that Florida defamation law gives news orgs the ability to limit the damages to “actual damages” by issuing a correction, an apology, or a retraction. And the BBC has, in fact, issued an apology (unnecessarily). This alone should cap any potential damages at actual harm suffered, which would be… what exactly? Trump won the election. His reputation, to the extent it can be harmed by accurately showing his own words about January 6th, certainly wasn’t damaged enough to cost him anything measurable. The man is president.
Oh, I guess we should mention, just for the sake of laughing at it, Trump is actually demanding a very Dr. Evil like “$10 billion” for an edit of a single TV program not shown in the US and which did no actual damage to his reputation.
Still, like nearly all of Donald Trump’s SLAPP suits, the point is not to win the lawsuit. Rather it’s to continue the same streak of intimidation tactics that he’s done for years. He sues media properties on no basis whatsoever, knowing that it causes not just the media targets of his lawsuits to be a lot less willing to report on the president’s words and actions in the future, but also scares others into silence as well.
Donald Trump is a serial filer of SLAPP suits, which serve no purpose other than to intimidate the media away from reporting negatively on him. It is just one of many reasons that he is the most censorial president ever. Hopefully the courts drop kick this case off the docket in record time.
Last year, we wrote about Donald Trump’s bullshit lawsuit against Iowa pollster Ann Selzer for releasing surprising polls right before the 2024 election suggesting that Kamala Harris might actually beat Donald Trump in Iowa. The polls turned out to be wrong—as polls sometimes are—and Trump decided this was grounds for a lawsuit. That case continues with a bunch of nonsense legal gamesmanship.
But Trump’s lawsuit wasn’t the only one. A separate “class action” lawsuit was filed against Selzer and the Des Moines Register by Dennis Donnelly, a random Des Moines Register subscriber who claimed the poll constituted “fraud,” “professional malpractice,” and—even more ridiculously—”interference with the right to vote.” It was basically a copycat lawsuit of Trump’s to try to put more pressure on Selzer and the Des Moines Register.
Polls, like nearly all speech, are protected by the First Amendment. To get past that rather large hurdle, a plaintiff would need to show the poll was somehow both false and made with “actual malice”—not that it was mean-spirited, but that Selzer basically knew it was “false” when she published it.
That’s a problem when the “expression” in question is a poll based on data Selzer actually collected. It’s an opinion derived from methodology, not a factual claim that can be “false.”
Finding actual malice requires Donnelly to plausibly allege Defendants sacrificed decades of work in cultivating this reputation for accuracy by “knowingly or recklessly” manufacturing a poll they knew was incorrect in pursuit of an unclear goal. See ECF No. 36 at 33. With no factual allegations to support such an assertion and mere conclusory statements, Donnelly asserts only a bare legal conclusion accompanied by actual malice buzzwords that Defendants acted knowingly or recklessly. This is insufficient to meet the plausibility standard….
The court’s response to the “fraudulent misrepresentation” claim is even more brutal:
No false representation was made. Defendants conducted a poll using a particular methodology which yielded results that later turned out to be different from the event the poll sought to measure. The results of an opinion poll are not an actionable false representation merely because the anticipated results differ from what eventually occurred…. Donnelly, and all other readers, knew how the poll was conducted because the poll results were accompanied by a thorough discussion of methodology…. Donnelly does not claim the disclosed methodology was not followed, that results were falsified, or that Defendants altered the poll in some other way which did not reflect the publicly disclosed methodology. Defendants told readers exactly what they did and how they did it. Therefore, no false representation was made.
The court then highlights the absurdity of Donnelly’s position by applying his own logic to the polls he cited favorably:
Donnelly cites to several other polls which had then-candidate Trump ahead by between seven and nine points…. The actual margin of the election was thirteen points…. Donnelly cites these other polls favorably, yet, by his definition of misrepresentation, every single one of these polls cited also “was all wrong.” … These polls were not fraudulently misrepresenting the state of the race, they merely used different methodologies in an attempt to best capture a snapshot of a dynamic race. … Donnelly fails to cite to any authority finding an opinion poll of a future event constitutes a false factual assertion.
The “professional malpractice” claim fares no better. The court compares it to suing a weather forecaster for an incorrect prediction and walks through the parade of absurdities that would follow:
Donnelly’s claim also fails because political opinion polls are predictive and inherently uncertain. Defendants here carried out a randomized survey and published the results along with a full explanation of the poll methodology. Donnelly’s novel attempt to impose liability for news prediction is similar to Brandt v. Weather Channel, Inc. in which a plaintiff sought to hold a news channel liable for an inaccurate weather forecast…. That court noted “to impose such a duty would be to chill the well established first amendment rights of the broadcasters.” Id. at 1346. The court in Brandt further observed the litany of absurd suits which could follow from imposing such a duty, such as construction workers suing when they pour concrete in reliance on a weather report forecasting no rain or commuters suing when they are stuck in traffic and late to work because the news reported there would be light traffic. Id. Finding for Donnelly here would permit similar absurdity. The Court declines to permit such absurdity and finds Defendants owed no such duty to Donnelly.
This ruling doesn’t just dismiss Donnelly’s lawsuit—it preemptively demolishes every argument Trump is using in his own case. As Jacob Sullum at Reason points out, Trump’s lawsuit is even weaker than Donnelly’s already pathetically weak case:
If anything, Trump’s fraud claims are even less plausible than Donnelly’s. Donnelly, who sued on behalf of all Des Moines Register subscribers, actually has a commercial relationship with the newspaper. Trump, by contrast, does not seem to have any such connection with the Register or Selzer. But both lawsuits suffer from the same basic problem: Because they treat misleading journalism as actionable fraud, they amount to thinly veiled assaults on freedom of the press.
Of course, these lawsuits were never really about having plausible claims. These lawsuits exist to send a message: publish anything that favors a political opponent of Donald Trump, and he and his MAGA allies will bury you in litigation. It doesn’t matter if the cases are frivolous. The process is the punishment, and the threat of more lawsuits is the deterrent. That’s not a legal strategy—it’s a censorship campaign dressed up in legal paperwork.
Even by Donald Trump’s standards for frivolous defamation lawsuits, this one is impressively stupid. On Monday, the president filed yet another lawsuit against the NY Times—this time seeking $15 billion over a book that claims he’s not quite as successful a businessman as he pretends to be.
The timing is almost comically bad. Trump is suing over allegations that he’s not actually that successful… right after winning the presidency in a landslide and making absolute bank while doing it. Has there ever been a sorer winner in the history of politics? You’re the fucking President. Get over the fact that some people criticize you already.
Trump has a decently long history of suing media outlets over unflattering coverage, including multiple failed attempts against the Times. Just last year, he had to pay nearly $400k in legal fees after another bogus lawsuit against the Times failed. But why let past failures slow you down when you can file an even dumber one?
The lawsuit is against the NY Times and book publisher Penguin Random House, along with some reporters at the NY Times. The complaint is… well… it is not the most organized or professional of complaints. It is, as so many Donald Trump lawsuits seem to be, political documents designed to please Donald Trump and his legally ignorant MAGA base, rather than convincing judges.
The complaint reads more like a press release than a legal document, packed with ego-stroking passages that reveal just how pathetically thin-skinned Trump remains. Consider this actual paragraph from a federal lawsuit:
Thanks solely to President Trump’s sui generis charisma and unique business acumen, “The Apprentice” generated hundreds of millions of dollars in revenue, and remained on television for over thirteen years, with nearly 200 episodes. “The Apprentice” represented the cultural magnitude of President Trump’s singular brilliance, which captured the zeitgeist of our time.
And, yes, that picture is included.
The complaint starts out by claiming that the NY Times endorsing Kamala Harris was a form of “election interference” which is not how anything works.
President Trump trounced Harris with 312 electoral votes and a sweep of all seven “battleground” states. This victory was remarkable for many historic reasons, including because President Trump had to overcome persistent election interference from the legacy media, led most notoriously by the New York Times.
That’s literally in the first paragraph of the complaint (though the claims themselves do not revolve around election interference, but even weaker claims of defamation). But, admitting that you won the election already undermines the idea that there was any damage done to Trump’s reputation from [checks notes] political reporting on him (historically some of the most protected of speech under the First Amendment.)
Indeed, Trump is going to have a pretty difficult time showing “damage” done to his reputation here. He claims that the NY Times tried to do three things:
Defendants’ pre-election goal was to kill three birds with one stone: (a) damage President Trump’s hard-earned and world-renowned reputation for business success, (b) in the process, sabotage his 2024 candidacy for President of the United States, and (c) prejudice judges and juries in the unlawful cases brought against President Trump, his family, and his businesses by his political opponents for purposes of election interference.
If that were true (and it isn’t) then they failed on all three counts. Trump won the election easily in 2024, he’s making absolute bank while being President (perhaps more than doubling his wealth) and all of the lawsuits against him have basically been shut down with Trump coming out on top.
Also, for anyone who has followed the NY Times’ repeated (and somewhat pathetic) attempts to bend over backwards to appease Trump and sanewash his attempt to bring fascism to America by pretending it’s politics-as-normal, this following sentence is ridiculous:
Today, the Times is a full-throated mouthpiece of the Democrat Party.
There is no one who has followed the NY Times’ willingness to “both sides” every crazy thing Trump does who actually believes that.
Then, after nearly five pages of screaming about how liberal the NY Times is, the lawsuit finally says that this lawsuit is not really about the NY Times at all, but rather a book written by two of its reporters (hence the Penguin Random House inclusion on the defendants list).
The subject matter of this action—a malicious, defamatory, and disparaging book written by two of its reporters and three false, malicious, defamatory, and disparaging articles, all carefully crafted by Defendants, with actual malice, calculated to inflict maximum damage upon President Trump, and all published during the height of a Presidential Election that became the most consequential in American history—represent a new journalistic low for the hopelessly compromised and tarnished “Gray Lady.” Defendants’ pre-election goal was to kill three birds with one stone: (a) damage President Trump’s hard-earned and world-renowned reputation for business success, (b) in the process, sabotage his 2024 candidacy for President of the United States, and (c) prejudice judges and juries in the unlawful cases brought against President Trump, his family, and his businesses by his political opponents for purposes of election interference. With President Trump having won the Presidency, Defendants’ goals remain similar and unlawful: tarnish his legacy of achievement, destroy his reputation as a successful businessman, and subject him to humiliation and ridicule.
Specifically, on September 17, 2024, Penguin published a false, malicious, and defamatory book titled “Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success” (the “Book”), authored by Craig and Buettner.
Dude. You won! Has there ever been a sorer winner in the history of politics? My goodness.
Before diving deeper into this mess, it’s crucial to understand what Trump actually needs to prove. As a public figure, he must show “actual malice”—and despite what Trump’s lawyers seem to think, that’s not about being mean to him.
Actual malice requires proving the defendants published something they knew was false or with reckless disregard for the truth (and reckless disregard also means something different than most people assume: it means you have to have ignored evidence that what you were publishing was false). It’s an extremely high bar, deliberately designed to protect robust debate about public figures. It has absolutely nothing to do with being angry or hostile—which is what Trump’s very bad lawyers seem to think it means.
Defendants each desire for President Trump fail politically and financially. Each feels actual malice towards President Trump in the colloquial sense: that is, each—Craig, Buettner, Baker, and Schmidt, as individuals, and the Times and Penguin’s relevant executives as corporations—subjectively wishes to harm President Trump, and each wish to manipulate public opinion to President Trump’s disadvantage to worsen his current and future political and economic prospects. Put bluntly, Defendants baselessly hate President Trump in a deranged way.
That final sentence—”Defendants baselessly hate President Trump in a deranged way”—reads like it was written by a sixth grader having a tantrum, not a lawyer filing a federal lawsuit. More importantly, nowhere in this 85-page screed do Trump’s lawyers actually demonstrate the knowing falsity or reckless disregard that the law requires.
They describe completely typical best practices in reporting as if they’re nefarious, such as the following:
Likewise, the Times and its reporters, including Craig, Buettner, Baker, and Schmidt, have a pattern and practice of contacting President Trump and his team regarding negative stories on a short timeline so as to be able to state that they sought comment—in order to preserve a scintilla of the pretense of neutrality—while making it functionally impossible for President Trump to comment on stories with factual errors, correct those errors, or provide a responsive quote before publication. This policy further enables the Times and its reporters to publish negative assertions about President Trump about which they subjectively harbor doubts as to their truthfulness by permitting them to claim that they sought factual confirmation or denial regarding their stories, even when they subjectively realize that they did not do so in good faith.
Again, that’s not how any of this works, and it’s certainly not how the NY Times’ reporting works. I have plenty of criticisms about the NY Times and its coverage, but the idea that they do this for the reasons stated is ludicrous.
The incredibly weak attempt to argue for reckless disregard… is to claim that because they didn’t interview producer Mark Burnett about Trump’s time on The Apprentice, that’s a form of ignoring counter evidence.
For non-exhaustive examples, and as detailed supra, Defendants published numerous statements regarding President Trump’s role in “The Apprentice” without first securing an interview from primary sources senior to the production of The Apprentice, such as Burnett. Defendants knew that Burnett would likely have contradicted numerous specific false, malicious, and defamatory purported statements of fact that they made regarding President Trump’s role in “The Apprentice” as well as their general narrative regarding President Trump’s role in the show’s success. Defendants therefore did not sufficiently pursue speaking with Burnett even after he did not grant an interview, did not sufficiently seek to obtain his original notes or records, and otherwise failed to engage with Burnett and other potential insiders with “The Apprentice” because they subjectively believed that these sources would have tended to contradict the defamatory lies that they wished to publish about President Trump.
Again, this is not how the NY Times works. If Burnett would have spoken to them (and historically he has refused to talk to the media about Trump beyond a single press statement he made before the 2016 election), the NY Times would have loved it and would have quoted him extensively, as that would be a huge scoop, given how often Burnett has refused to comment on Trump.
There’s also a whole tangent building off of Tulsi Gabbard’s ridiculously misleading statements earlier this year, falsely claiming that the Obama administration tried to fake Russia’s attempts to interfere with the 2016 election, even though multiple investigations (including those led by Republicans) have found that Russia absolutely tried to influence the 2016 election, even if it didn’t have much actual success.
The lawsuit then asks for… $15 billion dollars. How very Dr. Evil. The NY Times, for what it’s worth, is currently valued at less than $10 billion.
A lot of people discussing this lawsuit are claiming two things: that it’s really all about getting a settlement out of the NY Times like he’s been getting out of others, and second that it’s an attempt to get NYT v. Sullivan (the key case that established the actual malice standard) overturned.
While that may be the intent behind this lawsuit, I find both unlikely. Yes, in the lawsuit, Trump lists out a bunch of those corrupt settlements, as if they’re somehow relevant here. But plenty of people have observed that those settlements had nothing to do with the merits of the cases, but rather were entirely about capitulating to a bully and trying to get him off their backs. And, in the case of CBS, it seemed quite clear that the settlement was so that Shari Redstone could get her deal to sell Paramount/CBS to Larry Ellison’s son.
And, when it comes to the NY Times, they have a very good legal team that tends to relish taking on bad faith, bullshit SLAPP style lawsuits. They have a very good track record on those, and don’t often roll over. I would imagine that the legal team feels pretty strongly about defending this case rather than settling.
As for the attack on the actual malice standard, that’s the same thing people claimed about the last Trump lawsuit against the NY Times and it went up in smoke. It’s what people seem to want to claim about a bunch of frivolous defamation claims lately, and while it may be what the lawyers want, they seem like really bad cases to make these arguments. Because the underlying facts are so silly and so obviously bullshit, that the facts make for really bad cases to argue that the NYT v. Sullivan standard is somehow unfair.
Honestly, this just feels like so many of Trump’s lawsuits: engaging in pointless vexatious SLAPP lawfare just to punish media properties that publish negative stories about him. He has long admitted that he enjoys filing such lawsuits. Famously, he once said:
“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
That’s the very definition of a SLAPP suit. And, if you’re wondering, Florida does have an anti-SLAPP law, though it’s a bit quirky compared to other states. Also (more importantly) the Eleventh Circuit (which covers Florida) has said that you can’t use anti-SLAPP laws in federal court.
But, really, if you want proof that this is just Trump trying to punish those who dare to report on him accurately, just witness how he responded to a question about how he felt about Pam Bondi’s unconstitutional claims of punishing people for hate speech, by immediately threatening to go after the journalist who asked the question.
JON KARL: What do you make of Pam Bondi saying she's gonna go after hate speech? A lot of your allies say hate speech is free speechTRUMP: We'll probably go after people like you because you treat me so unfairly. You have a lot of hate in your hate. Maybe they'll have to go after you.
We talked about the celebrity fight du jour between actors Justin Baldoni and Blake Lively when it started, as it seemed for all the world like your typical Streisand Effect story. What began as a workplace harassment complaint of sorts, with Lively initially alleging several instances of inappropriate workplace behavior by Baldoni, has now exploded into a Hollywood court case with competing lawsuits from both parties. While I tend to shy away from the idea of parties purposefully employing the Streisand Effect for wanted attention, as opposed to inadvertently generating unwanted visibility, that sure looks like this is a case of the former. Baldoni and his legal team have taken every step possible to make every bit of this as public as possible, while Lively has done the opposite.
Now, I want to make clear that I don’t really have much of a take as to the merits of the case on either side. I just don’t know enough to have an opinion on the legal drama itself. That is what trials are for, after all.
But that doesn’t mean there isn’t some silliness to talk about as an update here. And when it comes to the status of the trial and what’s happening within it, there are several things going on.
First, like the New York Times before him, Ryan Reynolds has been attempting to exit this whole thing. Lively’s husband was sued alongside his wife for defamation and for interfering in Baldoni’s business relationships. Unfortunately, it appears that Baldoni’s suit may not have met some pretty basic threshholds for making such claims.
“The entirety of Mr. Baldoni’s case appears to be based on Mr. Reynolds allegedly privately calling Mr. Baldoni a ‘predator,’ but here is the problem, that is not defamation unless they can show that Mr. Reynolds did not believe that statement to be true,” Reynolds’ attorneys Mike Gottlieb and Esra Hudson told Us in a statement. “The complaint doesn’t allege that, and just the opposite, the allegations in the complaint suggest that Mr. Reynolds genuinely believes Mr. Baldoni is a predator.”
The statement continued: “Mr. Reynolds’ wife has accused Mr. Baldoni — privately and in multiple complaints — of sexual harassment and retaliation, and as pointed out by Mr. Reynolds’ motion, Mr. Baldoni has also openly spoken about his past of mistreating women and pushing the boundaries of consent. Mr. Reynolds has a First Amendment right to express his opinion of Mr. Baldoni, which should be comforting to a group of people who have repeatedly called Ms. Lively and Mr. Reynolds ‘bullies’ and other names over the past year.”
This is the “actual malice” requirement for defamation at work. Baldoni’s lawyers would need to prove not that Reynolds made the statements they claim he made about Baldoni, but rather that he made them knowing they were false in order to prove defamation. And that is notoriously difficult to prove. Save any smoking gun evidence of Reynolds openly admitting he was spreading lies, it’s very unlikely the defamation claims are going anywhere.
“Earlier today we moved for sanctions against the lawyers and parties responsible for the utterly frivolous claims brought against Ryan Reynolds,” Reynolds’ legal team said in a statement to Us Weekly on Tuesday, May 20. “Justin Baldoni’s lawyer and his clients filed a preposterous lawsuit falsely claiming that Ryan Reynolds extorted people he had never met, that he allegedly interfered with business relationships that do not exist, and somehow defamed people he never said a word about based on unspecified statements that do not appear anywhere in their 391-paragraph complaint. These are not serious claims—they are a desperate ploy for clickbait headlines that have no place in federal court.”
“Mr. Reynolds provided the Rule 11 Plaintiffs and their counsel an opportunity to save face, explaining these claims’ glaring and fundamental defects and urging that they be withdrawn more than 21 days ago,” the docs read. “Unfortunately, the Rule 11 Plaintiffs and their counsel unequivocally refused to do so, offering no response on these defects except to argue that these issues are appropriately resolved by motion to dismiss and may later be supported by discovery. But these claims’ fundamental failings are not about the parties’ dispute as to the legal arguments relating to their claims, or the facts, or even that all of their claims are weak and meritless (which, they are).”
If Baldoni’s real aim in all of this was to make all of this as public and publicity-driven as possible, well, it all kind of tracks from there.
And that’s further backed up by some truly absurd claims that Baldoni’s legal team have made about how to conduct Lively’s deposition. One lawyer said, I suppose perhaps in jest, that Lively’s deposition should be an event the public can attend or see for a fee.
“Since Ms. Lively is open to testifying, let’s make it count,” Baldoni’s attorney Bryan Freedman tells PEOPLE. “Hold the deposition at MSG, sell tickets or stream it, and donate every dollar to organizations helping victims of domestic abuse.”
Here again we see the legal team from one side behaving in a serious way, while the other is not. Whatever the truth of their competing claims against the other, it is certainly not a good look for one side coming off as professional and the other, well, not.
And, frankly, recent news about how Baldoni is stressed over the public legal drama seems quite odd coming from the person who made this very, very public in a way it hadn’t been previously. As entertaining as this all might be, there must certainly be a better way this all could have been handled than whatever this fiasco has turned into.
We came a bit too close to losing one of the most important First Amendment protections in American history — but at least for now we have a tiny bit of good news. Billionaire Steve Wynn, joining a growing chorus of the wealthy and powerful who want to make it easier to sue critics into silence, asked the Supreme Court to gut NY Times v. Sullivan’s vital “actual malice” standard. But last month, the Court turned him down, quietly listing his cert petition among the denied without comment.
While a simple cert denial may seem unremarkable, in today’s environment where foundational speech protections face relentless attack, keeping Sullivan’s protections intact represents a crucial firewall against wealthy interests weaponizing defamation law to silence critics.
The Sullivan standard exists for a very specific and crucial reason: to prevent the wealthy and powerful from using defamation lawsuits to bully critics into silence. The Court rightly recognized that if every minor mistake or inaccuracy about a public figure could trigger ruinous litigation, meaningful public discourse would become impossible. The “actual malice” standard (a confusingly named term that has nothing to do with “malice,” actual or not) requires plaintiffs to prove that false statements were made with knowledge of their falsity, or at least a strong suspicion that the statements were false.
Without this protection, billionaires like Wynn could bankrupt media outlets and critics simply by threatening expensive litigation over any perceived slight or minor factual error. The chilling effect would be devastating — who would risk reporting on corruption or misconduct if a single mistake could lead to financial ruin?
The “actual malice” standard has been so key to American free speech for over half a century that stripping it away would be a disaster of epic proportions.
Over the past decade, we’ve watched a coordinated campaign emerge to dismantle this vital protection. It started with Donald Trump’s calls to “open up” libel laws, but quickly evolved into a sophisticated infrastructure of MAGA-crafted nonsense legal scholarship and judicial skepticism. Federalist Society lawyers who once defended Sullivan began portraying it, practically overnight, as constitutional overreach (giving you a clear suggestion of just how “principled” some of those lawyers really are).
Basically, once Donald Trump said “jump” regarding defamation law, the MAGA legal infrastructure quickly began figuring out just how they should jump.
Most worryingly, two Supreme Court justices have explicitly called for overturning Sullivan. Justice Thomas led the charge (conveniently forgetting his own support for the standard during his confirmation hearings), followed by Justice Gorsuch, who was so eager to attack the standard that he relied on a deeply flawed law review article and had to quietly revise his dissent after its errors were exposed. We covered this disturbing evolution in detail in our recent podcast with “Murder the Truth” author David Enrich.
This cert denial suggests that, at least for now, there aren’t four justices ready to revisit Sullivan. We know Thomas and Gorsuch want to overturn it, and Alito likely agrees (he rarely strays from Thomas on such matters). But they needed a fourth vote to grant cert, and apparently couldn’t find one.
While it’s somewhat reassuring that two-thirds of the Court seems unwilling to demolish this crucial First Amendment protection, the fact that three justices appear eager to do so remains deeply concerning. The coordinated campaign against Sullivan isn’t going away — if anything, it’s gaining momentum. This cert denial bought us some time, but the next wealthy plaintiff with a grudge is surely already preparing their petition.
For now though, this firewall against frivolous defamation suits by the powerful remains intact. And in an era where free speech faces unprecedented challenges from all directions, we’ll take what small, but important, victories we can get.
Billionaires are already deleting parts of our government, as well as various safety mechanisms on the internet that sought to minimize hate and abuse. Do we also want them to be able to rewrite our understanding of the First Amendment?
Steve Wynn’s latest Supreme Court petition represents a dangerous escalation in the ongoing assault on press freedom and the First Amendment. While self-proclaimed free speech warriors claim to champion unfettered expression, their actions reveal a different agenda: securing immunity from criticism while maintaining the power to silence their critics through legal intimidation.
The weapon of choice? Dismantling New York Times v. Sullivan, the Supreme Court decision that has protected robust public debate for sixty years.
This attack on Sullivan is just one prong of a broader assault on free speech. The same powerful figures who demand unrestricted platforms to spread misinformation and bigotry are simultaneously working to silence their critics through legal intimidation. Their strategy is clear: reshape social media and communication platforms to amplify their preferred speech while using litigation to crush dissenting voices.
The goal isn’t free speech — it’s controlled speech.
For decades, NY Times v. Sullivan has stood as the primary bulwark against wealthy individuals using defamation lawsuits to silence their critics. Decided in 1964, it represents the Supreme Court’s most important attempt to resolve a fundamental tension: It is that case where the Supreme Court had to finally confront the inherent conflict between the First Amendment’s prohibition on any law that inhibits speech, against the long-standing tradition of defamation laws that that… inhibit speech.
The Court’s solution was elegant but hinged on an unfortunately named concept: “actual malice.” Despite its inflammatory name, the standard has nothing to do with ill will or hatred. Instead, it creates a simple test: public figures can only win defamation cases if they prove the speaker either knew their statement was false or showed “reckless disregard” for its truth.
This high bar serves a crucial purpose. Minor factual errors, differences of interpretation, or even heated rhetoric about public figures aren’t enough to trigger liability. Only deliberate lies or statements made while willfully ignoring clear evidence of falsity can qualify as defamation. And plaintiffs have the burden of proving that the defendant knew that it was a lie when they published or spoke.
This has been a cornerstone of US free speech for sixty years. It makes tremendous sense once you understand it, as it means that defamation of a public figure can really only stand if the speaker was deliberately seeking to lie about the target of the defamation.
Without that, you would get the kind of case that NYT v. Sullivan was about in the first place: one where minor factual errors, or even disagreements of interpretation, might lead to full-blown (costly) defamation cases that would not just be ruinous to defendants, but would create massive chilling effects that lead them to silence concerns and choose not to speak up about the rich and the powerful, who can file frivolous lawsuits with wild abandon.
This is precisely why the wealthy and powerful are now gunning for Sullivan. The ruling stands between them and their ability to weaponize defamation law against critics. And billionaire Steve Wynn’s latest Supreme Court petition represents their most direct attack yet.
The case emerged from Wynn’s attempts to silence reporting about his alleged misconduct going back decades. In 2018, as a prominent casino magnate and Republican megadonor, Wynn faced serious accusations. The WSJ had a big expose accusing him of a wide variety of harassment and sexual abuse. A few months later both the Las Vegas Review-Journal and Reuters reported on police files in Las Vegas, in which there were claims of sexual assault by Wynn dating back to the 1970s.
Rather than address the substance of these reports, Wynn turned to the courts, suing the Associated Press and reporter Regina Garcia Cano for defamation.
Wynn’s legal strategy revealed exactly why Sullivan is so crucial. His entire case hung on a single text message where Cano called one of the police reports “crazy” — which Wynn claimed proved she doubted its truth. But as the Nevada Supreme Court recognized in two separate rulings, calling something “crazy” doesn’t prove the reporter thought it was false — it might simply reflect the shocking nature of the allegations.
The case was dismissed under Nevada’s anti-SLAPP law, with the court delivering a forceful defense of both Sullivan and anti-SLAPP protections:
In designing its anti-SLAPP statutes, Nevada recognized the essential role of the First Amendment rights to petition the government for a redress of grievances and to free speech, and the danger posed by civil claims aimed at chilling the valid exercise of those rights. 1997 Nev. Stat., ch. 387, at 1363-64 (preamble to bill enacting anti-SLAPP statutes). To limit that chilling effect, the statutes provide defendants with an opportunity —through a special motion to dismiss— to obtain an early and expeditious resolution of a meritless claim for relief that is based on protected activity
The court systematically dismantled Wynn’s arguments, explaining that neither the “implausibility” of allegations nor a reporter’s desire to publish quickly amounts to “actual malice.” Most importantly, it recognized that allowing such weak evidence to support defamation claims would effectively gut press freedom.
Wynn argues that the Chicago complaint was implausible and points to the failure by AP Respondents to investigate further before publishing as evidence of actual malice. Again, while the complaint contained unusual elements, that does not mean that the gist of the allegations reported by AP Respondents—that Wynn sexually assaulted a woman in Chicago in the 1970s—was untrue or that AP Respondents should have held serious doubt about those allegations. As explained, because all identifying information in the complaint was redacted, it was not possible to meaningfully investigate further as long as that information was unknown. Wynn again points to Garcia Cano’s text describing the complaint as “crazy” to establish her subjective doubt. But calling the complaint “crazy” is not clear and convincing evidence that Garcia Cano believed it to be false or that she recklessly disregarded whether it was true. Wynn also attempts to establish reckless disregard by highlighting AP Respondents’ motivation to publish the story quickly. But news organizations often have a motivation to publish stories before their competitors, and in the absence of serious doubt regarding the veracity of the statement, such a desire does not establish a reckless disregard for the truth
In New York Times Co. v. Sullivan, this Court “overturn[ed] 200 years of libel law” to constitutionalize an actual-malice standard for public-official defamation plaintiffs. This Court extended this actual-malice innovation to public figures in Curtis Publishing Co. v. Butts.
Compelled by this Court’s constitutional decisions in Sullivan and Curtis Publishing Co., States, like Nevada, have incorporated the actual-malice standard into their anti-SLAPP statutes. As a result, those States require public figure plaintiffs to prove the merits of their case— including actual malice—before any discovery occurs (or with only “limited” discovery). State courts are split over the application of the actual-malice standard’s clear and convincing evidence burden to public figure plaintiffs in anti-SLAPP cases and whether it violates a plaintiff’s right to a civil jury trial.
These are the questions presented:
Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures.
Should this Court decline to overturn or otherwise cabin Sullivan and Curtis Publishing Co., whether the Seventh Amendment’s right to a civil jury trial is incorporated against the States and, if yes, whether the application of the clear-and-convincing actual-malice standard at the early anti-SLAPP stage of litigation violates a plaintiff’s Seventh Amendment right to a civil jury trial.
Wynn’s petition represents the most direct assault yet on press freedom in America. If successful, it would demolish the constitutional guardrails that have protected journalism for six decades. But the timing isn’t accidental.
Several current Supreme Court justices have been laying the groundwork for this moment. Justice Clarence Thomas has repeatedly signaled his hostility to Sullivan, repeatedly using Supreme Court orders lists as a personal blog to argue for Sullivan’s demise. Justice Gorsuch has joined this chorus at times, and all signs suggest Justice Alito would be sympathetic to their position.
The other issue is that this particular Supreme Court has been way more willing to (1) completely upend “settled” Supreme Court precedents, and (2) increasingly willing to cherry pick out-of-context arguments as ignorant amateur historians, to pretend that they can justify some barbaric practice as consistent with how things were at the time the Constitution was written.
Hell, given that duels were still common at the time of the First Amendment, I half expect the Court to argue that duels are a perfectly acceptable response to impudent language.
Normally, such a case would be a non-starter. This is widely settled law. While Justice Scalia had whined about the NYT v. Sullivan for years, there was no sense that anyone would legitimately try to overturn it.
While it’s unclear whether four justices will vote to hear the case, or whether five would vote to overturn Sullivan, the mere possibility should alarm anyone who values investigative journalism and robust public debate. A victory for Wynn would hand the wealthy and powerful their ultimate weapon: the ability to silence critics through ruinous litigation, regardless of the truth of their reporting.
The attack on Sullivan isn’t just about one billionaire’s grudge. It’s part of a broader campaign to reshape the First Amendment into a tool for protecting power rather than speaking truth to it.
When it comes to Judge Reed O’Connor, the only thing more predictable than his partisan rulings is the Supreme Court overturning them. But that hasn’t stopped him from giving the green light to Elon Musk’s ridiculous SLAPP suit against Media Matters. O’Connor’s problematic decision basically means that Elon has won. Even if the eventual case goes against Elon and rightly points out that Media Matters did nothing wrong, the cost of the case and the wider impact on speech has been a disaster.
When Elon sued Media Matters for publishing an article that everyone (including Elon) admits is true, people pointed out the many reasons why the case was terrible and should get tossed out. But first among them was the question of venue.
The case was filed in the Texas courtroom of Judge Reed O’Connor, even though none of the parties had any clear connection to Texas. The plaintiff was X Corp, a Nevada entity that (at the time) was headquartered in California (it has since announced it is closing down its headquarters there, but still), suing Media Matters (based in Washington DC), its CEO Angelo Carusone (based in DC) and one of its writers, Eric Hananoki (based in Maryland).
There is no connection to Texas other than that Elon Musk (who was not a direct party to the case) has other companies there. But Judge O’Connor just recently ruled in this very same case that you can’t assume that just because Elon controls both Tesla and ExTwitter that the companies are connected. So, you would think that this would further extend to saying Elon’s presence in Texas is meaningless.
Just last week, another judge, Amit Mehta in Washington DC, called out that a related investigation by Missouri AG Andrew Bailey (kicked off in response to a request from Elon Musk to pile on against Media Matters) was clearly and obviously an unconstitutional attack on Media Matters’ protected speech.
But Judge O’Connor marches to the beat of his own partisan piper. Recently, Joe Patrice at AboveTheLaw gave a short summary of Judge O’Connor’s history of extremist partisan decisions that even this Supreme Court felt the need to overturn:
While it wasn’t a huge surprise that O’Connor refused to recuse himself from the case over his Tesla shares, it’s still been bizarre to watch him act as if there’s a credible complaint here. First, O’Connor allowed discovery to go ahead before the motion to dismiss was decided (which isn’t entirely uncommon but in a case like this was still aggressive). And then last week he rejected the motion to dismiss entirely.
Media Matters had pointed out the very clear flaws in the claimed Texas jurisdiction and venue. But O’Connor comes up with a nonsensical excuse that most other judges would have laughed at: that because Hananoki’s articles mentioned Oracle’s ads, and Oracle is (temporarily) headquartered in Texas, there is jurisdiction over Hananoki.
Notably, Oracle only moved its headquarters to Texas during the pandemic and recently announced it was moving them again to Nashville. It’s also a meaningless point, given that Oracle allows employees to be remote, its founder (Larry Ellison) works mostly from Hawaii, its CEO, Safra Catz, lives in Florida, and many other execs remain at its original headquarters in California. The Texas HQ has always been more of a paper move than anything real.
But it’s enough for Judge O’Connor, even though Oracle is not a party to the action:
The body of the Hananoki articles targeted, among others, Oracle, a Texas-based company that placed ads on Plaintiff’s platform. Indeed, the Hananoki Original article included Oracle in the headline.
Judge O’Connor then also points out that this means that “the harm suffered” may have occurred in Texas:
This targeting of the alleged tortious acts at the headquarters of Texas based companies is sufficient to establish specific jurisdiction in Texas. See Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (“The key question, under Calder, is whether the forum state was ‘the focal point of the [alleged libel] and of the harm suffered.’” (quoting Calder v. Jones, 465 U.S. 783, 789 (1984))). As just described and as set out below, each Defendant engaged in the alleged tortious acts which targeted harm in, among other places, Texas.
But… that’s wrong? I mean, just fundamentally. The harm alleged in the complaint is not to any of the “Texas-based companies.” Rather it’s X Corp., which, at the time, was not a Texas-based company in any sense. Doesn’t matter according to O’Connor.
Accordingly, the evidence taken as true shows Hananoki targeted his conduct at Texas.Because Defendant Hananoki “purposefully directed [his] activities” at Texas, and Plaintiff’s claims against Hananoki are “deriving from, or [are] connected with” those activities, specific jurisdiction exists
I’ve seen plenty of weird jurisdiction and venue cases in my two and a half decades covering the internet (internet jurisdiction questions can be crazy…) but I’ve never seen a justification quite like this one.
Judge O’Connor says that Media Matters itself as an entity would avoid jurisdiction in Texas if the site was “passive” but if it’s “interactive” then it’s fine. I’ve never heard this distinction before, and it makes no sense.
Defendant’s affidavit describes the website as interactive. Since the website is interactive, the traditional jurisdictional rules apply. Johnson, 21 F.4th at 319 (website is interactive if it solicits information, makes purchases, and click on ads.) These rules seek to determine whether Plaintiff’s suit results from Media Matters purposefully targeting Texas. Id. For the reasons stated above, Media Matters targeted Texas…
He then quotes another case to say that “a defendant who targets a Texas company with tortious activity has fair warning that it may be sued there”:
(“if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there.”)
Except that… no one picked a fight in Texas. This is a made-up thing. Again, literally none of the parties were based in Texas.
Getting past the jurisdiction questions first, there’s still the issue of venue (i.e., is this the right place to file this lawsuit). And the obvious answer again here is “absolutely fucking not.” But, this is Judge O’Connor, so of course he thinks it makes sense.
Plaintiff sufficiently alleges a substantial part of the events occurred within the Northern District of Texas. Plaintiff alleges that Defendants waged a campaign against X’s blue-chip advertisers. It alleged AT&T, headquartered in the Northern District, was one of its blue-chip advertisers targeted by Defendants. The gravamen of Plaintiff’s claims are that Defendants intended to negatively impact Plaintiff’s blue-chip clients, including a client based in this district. This sufficiently establishes that a substantial part of the events at issue in this lawsuit occurred here.
Judge O’Connor rushes through the rest of the motion to dismiss. On the issue of no breach of contract because there was no such contractual breach, Judge O’Connor says that in Texas you can have tortious interference in merely getting someone to end a contract even without a breach (which is quite incredible).
Judge O’Connor does the judicial equivalent of a “who can really say” shrug regarding the argument that any harm of ExTwitter allowing ads next to neo-Nazis on ExTwitter came from ExTwitter, not Media Matters accurately pointing out the ads next to neo-Nazis:
Finally, Plaintiff plausibly alleges that Defendants proximately caused their harm. Proximate cause requires proof of both cause-in-fact and foreseeability. Defendants present a compelling alternative version of events to Plaintiff’s. However, the Court will not “choose among competing inferences” at this stage. … Accordingly, Plaintiff’s Amended Complaint alleges sufficient facts to state a claim of tortious interference with contract.
Media Matters had (correctly) pointed out that the claim of business disparagement requires there to be “false and disparaging information published” and that it has to have been done with actual malice (a pretty high standard, which includes that Media Matters knew or highly suspected the material was false at the time).
Incredibly, Judge O’Connor apparently writes the “false” part out of this requirement altogether, saying that disparaging is enough. His analysis of “malice” ignores the actual standard (which is reckless disregard for the truth), and says (incorrectly) that the frequency and tenor of the statements supports malice (which is not the standard, according to the Supreme Court, which seems to need to keep correcting O’Connor).
First, construing the facts pled by Plaintiff in the light most favorable to it, that Defendants manipulated and intended to deceive Plaintiff’s advertisers is sufficient to support the first element. Plaintiff alleges Defendants acted with malice and without privilege by asserting Defendants’ reporting was false and the “frequency and tenor of Media Matters’ statements disparaging X and the safety of advertising on the X platform” supports an inference of actual malice. And finally, Plaintiff has pled a plausible claim regarding special damages in that Defendants tortious acts undermined “advertisers’ faith in X Corp.’s abilities to monitor and curate content.
Almost every similar case I can think of dismisses on the actual malice point by pointing out that merely claiming “actual malice” does not make it actual malice. You have to show the reckless disregard for the truth. But here, O’Connor not only ignores the fact that ExTwitter admits in its complaint that nothing is false, he ignores the requirements of actual malice.
This is pretty stunning.
Unfortunately, this fits with O’Connor’s priors, in which he appears to bend over backwards to come up with excuses to support “his side.” If that means ignoring the Supreme Court standard, so be it. Tragically, all this is going to do is add (massively) to the costs facing Media Matters, as with the discovery order and O’Connor’s fee shifting order about whether or not he needed to recuse over his ownership of Tesla stock.
The non-profit has already laid off a bunch of employees because of the costs of this lawsuit. This decision more or less guarantees an approximately ten-fold increase in costs (after the motion to dismiss is when things get ridiculously expensive).
In other words, even if Media Matters were to win this case down the road, it has already lost. The cost of this kind of lawsuit is punishment, and O’Connor has now made multiple rulings that exact that type of punishment at soul-crushing levels.
And thus, Elon has successfully suppressed Media Matters’ speech. Never, ever, let anyone tell you he supports free speech after engaging in this kind of activity. He is actively abusing the judicial system to suppress speech. And he’s doing it gleefully with support from fans who also, falsely, insist they favor free speech.
Elon isn’t letting up either. Almost before the ink was dry on the order denying the motion to dismiss, ExTwitter filed a motion to compel Media Matters to hand over all sorts of confidential “donor-related documents.” Remember when Republicans absolutely hated any move to force non-profits to disclose donors? Apparently, that only applies to organizations that support Republicans. If you work against them, you should be forced to reveal your donors.
This ruling is, itself, an attack on free speech, in a case brought by someone who falsely claims to be a free speech absolutist. The end result is a travesty and a disaster for speech.
Earlier this year, we wrote about outspoken financier Bill Ackman’s threat to sue Business Insider over articles regarding accusations by the publication that Ackman’s wife, Neri Oxman, had plagiarized parts of her dissertation years ago. The timeline and context of what happened here is important because Ackman continues to ignore it.
Ackman got upset about activity by students at his alma mater, Harvard, in response to the Hamas attacks on Israel on October 7th. He then helped orchestrate a campaign to oust Harvard’s new President, Claudine Gay, because of what he viewed as her insufficient response to antisemitism on campus. While those initial efforts went nowhere, the situation gained more attention when some nonsense peddlers of the grifter class found examples of what they called plagiarism, but which many academics felt were inadvertent errors in weak paraphrasing, or inadvertent failure to properly cite sources.
For example, one of the people Gay was accused of plagiarizing came to her defense, noting that while it may have been technically improper, it was over minor bits and not the heart of what she was writing:
The plagiarism in question here did not take an idea of any significance from my work. It didn’t steal my thunder. It didn’t stop me from publishing. And the bit she used from us was not in any way a major component of what made her research important or valuable.
So how serious a violation of academic integrity was this?
From my perspective, what she did was trivial—wholly inconsequential. That’s the reason I’ve so actively tried to defend her.
This effort continued for some time, with Ackman again being a leading voice, perhaps recognizing that what he failed to accomplish by complaining about her handling of antisemitism, he could eventually accomplish through piling on and promoting the claims of plagiarism. And it worked. Soon after, Gay lost her job as President of Harvard.
Around that time, Business Insider published its first piece about Neri Oxman, Ackman’s wife, noting that her dissertation at MIT was also found to contain some plagiarized passages. The article was pretty explicit that it was not accusing Oxman of some inherent unethical behavior, but rather noting the similarities between what she had done and what Gay had done:
Like Oxman, Gay was found to have lifted passages from other academics’ work without using quotation marks while citing the authors.
Gay’s plagiarism was seen by some academics, including many of those she plagiarized, as relatively inconsequential.
George Reid Andrews, a history professor at the University of Pittsburgh and one of the people Gay plagiarized, told the New York Post that what Gay did “happens fairly often in academic writing and for me does not rise to the level of plagiarism.”
That is, the entire point of the article was to highlight the parallel situations between Gay and Oxman. It was to emphasize that inconsequential copying or inadvertent failure to properly cite something minor in an academic paper happens all the time.
The point was not that Oxman was terrible. The point was to highlight Ackman’s double standard. Indeed, Business Insider wrote an entire article comparing the accusations against both Gay and Oxman while highlighting Ackman’s noticeably different approach to each.
“Part of what makes her human is that she makes mistakes, owns them, and apologizes when appropriate,” he wrote in a post on X following Business Insider’s report on Oxman’s plagiarism.
That’s a starkly different approach from the one he took toward Gay after she stepped down as president earlier this week. At the time, Ackman said she should be fired from Harvard’s faculty entirely because of what he called “serious plagiarism issues.”
“Students are forced to withdraw for much less,” he posted on X. “Rewarding her with a highly paid faculty position sets a very bad precedent for academic integrity at Harvard.”
However, the instances of Oxman’s and Gay’s plagiarism have more similarities than differences, according to experts and an internal analysis.
At no point that I’ve seen in this ongoing ordeal has Ackman acknowledged that. Rather, he has gone on rant after rant after rant, combined with threats to sue people for their free speech (while pretending to be a free speech absolutist), pretending that the point of the Business Insider articles was to smear Oxman to punish Ackman for his support of Israel.
A few weeks ago, Ackman promised to sue and has hired Libby Locke of the firm Clare Locke to issue a massive (and massively ridiculous) threat letter to Axel Springer/Business Insider, demanding corrections and retractions of various articles. It’s a Gish gallop of a threat letter. Responding to every single bit of nonsense in the threat letter is beyond the scope of my time, and even so this article is going to be ridiculously long.
Just as an aside, no one who hires Clare Locke is a “free speech absolutist.” Clare Locke (and especially partner Libby Locke) are immensely proud of their ability to threaten media outlets to kill stories (and they’re not as effective as their media portrayal would have you believe). That’s the opposite of free speech absolutists. They are speech suppressors. Their website kinda brags about this:
Sending a 77-page “demand letter” is ridiculous and suggests that you don’t have a clear ask or a clear explanation. Ackman, over on ExTwitter, admits that the letter was written on purpose to be turned into a complaint:
It will not go unnoticed that the demand letter reads remarkably similarly to the pleadings of a lawsuit. If needed, we can convert the demand letter into a complaint and file a lawsuit, which I hope is unnecessary
The letter is long, repetitive, and silly. It does not engage with the actual purpose of the Business Insider articles, to compare Gay’s inadvertent failures to cite with Oxman’s similar mistakes in a manner that highlights how Ackman’s freakout over Gay suggests a huge double standard. Instead, it opens by arguing that Business Insider and the reporters and editors who worked on these articles are antisemitic and targeted Ackman because of his pro-Israel views.
Ackman’s criticism, particularly of Claudine Gay, the former president of his alma mater, Harvard, did not sit well with Katherine Long (an Investigative Reporter at Business Insider), John Cook (Business Insider’s Executive Editor), and Henry Blodget (Business Insider’s Founder and Chairman), who have publicly expressed anti-Zionist and purportedly antisemitic views.
It then goes on at great length (and great repetitiveness) to claim that it’s not plagiarism if it wasn’t done on purpose. Really.
As confirmed by Business Insider and the common definition of plagiarism, plagiarism requires an intent to steal or defraud. Unintentional citation mistakes and honest errors are not considered plagiarism as the word is commonly understood
Now, there are two major problems with this. First of all, as noted here (but not in anything from Ackman), if that’s the case, then it appears Gay did not plagiarize either. And, again, that was the whole point of the Business Insider articles.
But, secondly, yes, you can absolutely plagiarize without intent to do so. The letter plays a very sloppy game of “use the definition we want at different times throughout our argument.” Note that even in the quote above, Locke’s letter says “as the word is commonly understood.” But… that’s not true. As commonly understood, inadvertent plagiarism… is still plagiarism. It might not be as serious. But it’s still plagiarism.
And the most incredible bit is that the letter admits that itself. Much later in the letter, it argues that Oxman couldn’t have done anything terrible because of MIT’s guidelines on plagiarism at the time. The letter, early on, states the following:
As MIT itself plainly explains in advising students of its academic standards, plagiarism “does not include honest error.” MIT also recognizes that “unintentional” plagiarism is not considered academic misconduct. In other words, honest mistakes happen, but those simple errors do not count as academic misconduct.
But, again, the whole point was that Gay appeared to have committed similar unintentional acts of plagiarism, yet Ackman demanded her head over them.
Either way, later on in the complaint letter, they show snippets from MIT’s guidebook which… read quite differently in context. They do not at all seem to be suggesting that unintentional plagiarism is not plagiarism. Rather, they seem to be stating that unintentional plagiarism is still very much plagiarism, and that’s why one should be very careful to not even engage in unintentional plagiarism. Here’s page 12 of the letter, in which it seems pretty clear that MIT is saying “don’t plagiarize, even if it’s unintentional,” but where Oxman/Ackman/Locke seem to be pretending it’s saying “meh, as long as you didn’t mean it, you’re fine.”
Notice, clearly in there, that MIT is not saying that “accidental” and “unintentional” plagiarism is fine. Both of the clips above are trying to help students understand why accidental plagiarism is still wrong and how they need to learn how to properly do academic writing by citing sources and writing up things by yourself.
Page 13 of the letter provides even more examples of this, where they seem to think it is absolving Oxman and revealing Business Insider’s ill-intent, when it really just seems to show that Oxman/Ackman/Locke don’t understand what they’re looking at:
Those are all clearly explanations for how to avoid that kind of “botched paraphrasing” which it appears both Gay and Oxman may have engaged in.
Notably, this demand letter leaves out the line right after those two screenshotted selections above, which proves that Libby Locke is omitting important context. Here, see it for yourself:
“In any event, even if the plagiarism is unintentional, the consequences can still be very painful.”
And then it explains why it might be painful:
Plagiarism in the academic world can lead to everything from failure for the course to expulsion from the college or university.
Plagiarism in the professional world can lead, at the very least, to profound embarrassment and loss of reputation and, often, to loss of employment. Famous cases of plagiarism include the historian Stephen Ambrose (accusations about six of his books have been made, most famously about The Wild Blue) and historian Doris Kearns Goodwin (who ended up asking the publisher to destroy all unsold copies of The Fitzgeralds and the Kennedys). Such plagiarism may be accidental, but its consequences are the same as for intentional plagiarism.
The threat letter leaves out all of this context and seems to pretend that MIT is suggesting that such unintentional plagiarism is fine. When the very document they’re quoting from says the exact opposite.
And what’s funny is that throughout the 77-page letter, Locke keeps insisting that omissions by Business Insider that distort the meaning of things are clearly defamatory and/or evidence of actual malice. Yet Locke engages in identical behavior.
The next page of the letter actually drives this point home (though again, the letter’s author does not appear to recognize this) by including a screenshot of the MIT Academic Integrity handbook that explains how to avoid “inadvertent plagiarism.”
All of that undermines Oxman’s argument, but the letter seems to think it boosts it. That’s because it confuses what counts as “research misconduct” with what counts as plagiarism. Looking at the MIT documents in context suggests that they are talking about two different things: what counts as plagiarism (which could include accidental or inadvertent copying and missed citations) and what counts as misconduct for which sanctions make sense, which requires intent.
But none of that really matters for the point that the Business Insider piece was trying to make: comparing Gay’s conduct (which Ackman insisted was a horrible, fireable offense) to Oxman’s (which Ackman continues to insist was no big deal).
On the very next page of the letter, it (falsely) suggests all this proves that Oxman’s “inadvertent” failure to properly cite somehow was not problematic. Even as the very documents they screenshot say the literal opposite. It also claims that “quoting one part of an article without quoting another part which might tend to qualify or contradict the quoted part is evidence of actual malice” even though that’s the same thing this letter does in this very section.
Business Insider’s purpose in excluding references to these portions of MIT’s Academic Integrity Handbook and academic misconduct policies in its articles on Dr. Oxman is clear: Including them would have debunked the notion that Dr. Oxman had committed intentional plagiarism and academic fraud, and Business Insider wanted to create the false impression that Dr. Oxman committed intellectual theft.
Business Insider’s wholesale omission of MIT’s policies and procedures contradicting its preconceived narrative was deliberate, and it is further evidence of Business Insider’s actual malice towards Dr. Oxman and Ackman. Indeed, the law holds that “quot[ing] one part of an article without quoting another part which might tend to qualify or contradict the part quoted” is evidence of actual malice. Goldwater, 414 F.2d at 336; see also Eramo, 209 F. Supp. 3d at 872 (“[D]isregard[ing] contradictory evidence” is supportive of actual malice.); Murray, 613 F. Supp. at 1285 (“It would be unjust and nonsensical to allow the defendant to rely on the report for certain purposes and to ignore it for others.”).
Once again, it’s unlikely that anyone with half a brain reading the BI pieces would think they were accusing Oxman of anything particularly nefarious. They were simply comparing what she had done to what Gay had done and noting the similarities.
There’s so much more that’s silly about this threat letter that there’s no way to go through it all, so I’m going to skip some of it and give highlights of other parts.
There’s an entire section whining about the use of the word “marred” in one of BI’s headlines, claiming that because it was only inadvertent, it couldn’t have been “marred.” I shit you not:
Given that the only instances of alleged plagiarism Business Insider identified in this article were only four paragraphs with eight missing quotation marks and one instance in which Dr. Oxman failed to cite an author she cited extensively elsewhere in her 330-page dissertation, it is wildly inaccurate to characterize her dissertation as “marred” (i.e., ruined or spoiled) “by plagiarism.”
Except they’re using a… weird definition of marred. It’s most commonly “damaged or spoiled to a certain extent; made less perfect.” As such, even small defects (such as those described) sure would seem to count as marred. My articles are often marred by typos, but that doesn’t mean that every word is a typo. And, either way, the use of the word “marred” is, in no world, anywhere close to the standards of defamation.
Then we get to the whole “citing Wikipedia” nonsense. Ackman had argued on ExTwitter back when this first came about that at the time of Oxman’s dissertation Wikipedia was still new and there weren’t general agreements on citing it, but that’s… nonsense. On multiple levels. First off, it wasn’t that new. Wikipedia was widely known and widely used at that point. Second, even if there wasn’t agreement on how to cite Wikipedia, that did not change the simple fact that it was still very much widely considered plagiarism to copy directly from it without citation/quotation. The lack of understanding of how to cite Wikipedia is a separate issue from the question of copying without attribution.
I had thought that once a lawyer got their hands on this fight, this argument would die a sudden death, but apparently the law firm of Clare Locke has no problem pushing totally specious arguments, because that makes it in here too:
Business Insider, however, intentionally omitted that MIT’s Academic Integrity Handbook at the time Dr. Oxman wrote her dissertation in 2009 and 2010 did not address—much less require— citation to Wikipedia, which itself is a collaborative resource with no single author to whom ideas could be attributed, and which at the time of her dissertation was of relatively nascent origin. In fact, Wikipedia was so inchoate that MIT had not yet developed or published any guidance on how researchers should use Wikipedia. Only later—several years after Dr. Oxman’s dissertation was published—did MIT revise its Academic Integrity Handbook to include a prohibition on citing Wikipedia for academic work. In 2009 and 2010, when Dr. Oxman wrote her dissertation, no such prohibition existed.
Note the shift here between citing and copying without attribution. Those are two separate things that this letter seeks to conflate. Even if MIT hadn’t published policies on how to cite Wikipedia, it has zero impact on whether or not copying directly from Wikipedia might be considered plagiarism. It still was. And it’s ridiculous to suggest that people didn’t think that to be the case in 2010.
There’s a whole section complaining that BI could not possibly call out Oxman for plagiarism unless it did an “inquiry or investigation into Dr. Oxman’s mental state to support such a finding.” To which I will just say… did Bill Ackman conduct such an “inquiry or investigation into Dr. Gay’s mental state” to support the many statements he made about her alleged plagiarism?
Or do we just admit that the billionaire gets to live by different standards than he seeks to impose on others?
After BI published its initial article, Oxman posted some tweets admitting that she had failed to properly put quote marks in certain sections:
Any reasonable read of this is that Oxman is admitting to not quoting things she should have quoted, which… is plagiarism, even by the definitions that were quoted earlier in the threat letter. Thus, BI published a new article saying that she admitted to plagiarism. The threat letter is apoplectic in insisting that she didn’t admit to plagiarism, and only to omitting quotation marks, which is fucking crazy.
Shortly after the first article was published at 2:28 PM on January 4, Dr. Oxman acknowledged in a post on X that, in “four paragraphs” of her 330-page dissertation, she did not “place the subject language in quotation marks, which would be the proper approach for crediting work,” and in one sentence she paraphrased an author but inadvertently did not cite him. She apologized for these errors. She did not, however, admit to plagiarism, intentional or otherwise. Three hours and 30 minutes later, Business Insider published a follow up article falsely claiming in its inflammatory headline that “Neri Oxman admits to plagiarizing in her doctoral dissertation after BI report.”91
Business Insider knew that when it published this article that its statement was false— Dr. Oxman had not admitted to plagiarism. Business Insider read and included a link to Dr. Oxman’s post in the article, but it purposefully mischaracterized Dr. Oxman’s post in the headline creating the false impression that Dr. Oxman had admitted to intellectual theft.
I’m still amazed at the chutzpah here. I’ve read Oxman’s tweet multiple times, and it’s pretty clear that she is admitting to plagiarism, though saying it was inadvertent. But, again, (1) inadvertent plagiarism is still considered plagiarism (including by MIT) and (2) it’s the same sort of thing that Dr. Gay was accused of, which was the whole point of BI’s efforts.
There’s another whole section on all of the Jeffrey Epstein stuff which I won’t get into (Oxman had a very, very distant connection to Epstein via the MIT Media Lab where she worked, and which Epstein infamously had donated money to, though apparently unrelated to her work). But the letter (which I’ll note claims to be on behalf of Oxman and not Ackman) whines quite a bit about BI stating that Ackman had sought to “pressure” then Media Lab director Joi Ito not to name Oxman in response to a media inquiry. It also whines about BI’s claiming that the Boston Globe had “uncovered” emails between Ackman and Ito, when (according to this letter) Ackman had sent them willingly to the Boston Globe.
But, the emails he forwarded sure do look like “pressuring” Ito. I guess it depends on your definition of “pressure” but the entire point of the email was asking Joi not to name Oxman and giving a bunch of reasons why he shouldn’t. That sure sounds like it meets one of the common definitions of pressure: “the act of trying to persuade or force someone to do something.” The threat letter, instead, seems to think “pressure” must involve threats of some kind, which… is not what the word means. And, remember, the threat letter itself talks about the use of “common definitions” (quoted above).
The letter says that Business Insider “falsely” claimed that Oxman and Ackman (who again, the letter does not purport to represent) “did not dispute the facts” in the BI articles, and then points out that this is false, because… of Ackman’s silly rant about citing Wikipedia:
In just one example, at 9:57 PM on January 5, just a few hours after Business Insider published its article falsely accusing Dr. Oxman of plagiarizing from Wikipedia and other sources, Ackman posted on X disputing that using Wikipedia for definitions is plagiarism. He asked rhetorically, “How can one defend oneself against an accusation of plagiarizing Wikipedia … Isn’t the whole point of Wikipedia that it is a dynamic source of info that changes minute by minute based on edits and contributions from around the globe? Has anyone (other than my wife) ever been accused of plagiarism based on using Wikipedia for a definition?” 110 Among other challenges to Business Insider’s reporting, Ackman directly disputed the notion that Dr. Oxman’s inclusion of definitions from Wikipedia in her dissertation was plagiarism.
But… that’s not disputing the facts. That’s disputing the interpretation of the facts (it’s also silly).
Much of that section is just a hilarious list of Bill Ackman not refuting any of the facts to the actual reporters or editors of the piece, but reaching out to various super rich executives somewhat associated with Business Insider, who assured him they were looking into things. That is not the same thing as “disputing the facts” to the actual journalists. That’s whining to the rich in hopes they’ll smack down the poor reporters who dared to make you look silly.
There are five (five!) pages that are just screenshots of Ackman’s (again, not officially represented in the letter) WhatsApp messages to Axel Springer boss Mathias Dopfner “disputing” the stories, but basically none of what is disputed is actual provably false statements of fact. They pretty much all appear to be differences of opinion on how things were portrayed in the BI stories. That’s not defamation. And it’s not even disputing the underlying facts — which is all BI claimed.
Hilariously, the only response from Dopfner to Ackman is a short email, which does not agree to anything that Ackman claimed. It just says “Thanks for your e-mails. Very helpful input to clarify things during the investigation” and then notes that because Ackman had announced plans to sue BI, his general counsel had (correctly) told him not to communicate with Ackman anymore:
Then we get to “actual malice.” On its website, Clare Locke declares itself “the leading defamation law firm in the United States.” I guarantee you that Libby Locke knows what “actual malice” means in the context of a defamation lawsuit. And it is not “they didn’t like the plaintiff” or “they were biased against the plaintiff.” Yet, Libby Locke seems to not care what the legal definition of actual malice is in their laughably wrong section on actual malice.
Business Insider never had any interest in journalistic integrity or the truth when reporting on Dr. Oxman. From the outset, its reporting was tainted by its progressive political bias and the desire of its anti-Zionist reporters and editors to smear a prominent, Jewish advocate and his family for speaking up against former Harvard President Gay. The Business Insider employees primarily responsible for this attack have a history of unethical conduct and have publicly expressed their anti Zionist and/or purported antisemitic views.
Beyond being fucking ridiculous, it’s also got nothing to do with actual malice. Actual malice means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false.” Also, “reckless disregard” doesn’t mean that you were just sloppy or lazy. It means that the speaker had serious doubts about the truth of the statements but published them anyway. The Supreme Court has been quite clear that it doesn’t mean biased reporting. And it doesn’t even mean mere negligence in reporting.
For there to be actual malice, BI’s reporters would have to fundamentally know (or have very strong beliefs) that what they were publishing was false, and then publish it anyway. But, they’ve (rightly) stood by their reporting. And Ackman, repeatedly, is only complaining about their interpretation of the facts, not the underlying facts themselves.
The letter then goes on to trash the reputation of Henry Blodget, BI’s founder, who had talked to Ackman early on when Ackman was first freaking out about the stories (hilariously, Blodget suggested Ackman could write for BI at one point, and in return he gets trashed). Blodget is, of course, easy to trash. He somewhat infamously settled with the SEC for publicly pumping up dot-com era stocks, while privately trashing those stocks. Some of us still remember all that.
The letter also tries (pathetically) to trash the reputations of the reporters and editors who worked on the BI stories, including digging editor John Cook’s self-admitted story about how as a teenager in the 1980s he was suspended from high school for publishing an obnoxious underground newspaper (I too published an underground newspaper in high school, and it was also obnoxious, but also I didn’t get suspended, in part because I wrote the back page of the first issue that was an entire article about how the First Amendment works, citing numerous Supreme Court cases on why the school couldn’t take action against those of us who wrote the paper… which was, perhaps, a preview of what my life was to become).
But what does that have to do with actual malice? Fuck all! It’s just Ackman burning bridges for show — and potentially as a threat to try to convince others not to report on his wife, or he’ll trash your reputation too (come at me, Bill).
The letter then moves on to misleadingly claim that Business Insider was trying to get Oxman fired. Again, this misunderstands what seemed pretty obviously to be the point of the articles: to compare Ackman’s response to the accusations around Gay as compared to his wife. The letter makes a big deal of Insider’s reporter, Katherine Long, asking in her initial email to Ackman if he expects Oxman to lose her job (Long, at the time, mistakenly believed that Oxman was still at MIT, when she had left a few years earlier):
In context, it’s obvious why Long asked this question. Since Ackman had pushed so strongly for Gay to lose her job at Harvard, it’s a kind of obvious question for a reporter to ask about Ackman’s wife (who they thought was still at MIT) given the whole point of the exercise was to showcase Ackman’s selective outrage and differential treatment of Gay compared to his wife.
But the letter treats this as an attempt to make Oxman lose her job and seems outraged. Which is fucking hilarious given Ackman’s tirades trying to get Gay fired from her job.
Business Insider’s Coverage Of Dr. Oxman Was Motivated by Its Desire To Get Dr. Oxman Fired by MIT.
Almost no one could possibly think this is what Long was trying to do. It seems blatantly obvious that she was simply seeing if Ackman felt his wife should face the same treatment that he helped engineer for Gay.
There’s also some just incredible hubris in the letter, in that it reveals Ackman petulantly demanding in text messages to Blodget that the articles be taken down while the promised investigation on the reporting occurred (which would be an extraordinary step that would have brought Streisand Effect levels of extra attention to the claims) and Ackman seems to think that BI’s refusal to accede to his demands when Blodget promised he was “working” on the issue is somehow more proof of malice (when the more sensible, and likely accurate, reason is that BI investigated, found that the story still held, and there was no reason to take it down).
There are also about eight whole pages of the letter going on (at ridiculous length) about what an amazing, brilliant, and famous person Neri Oxman is, which is hilarious since when all this started and people pointed out to Ackman that defamation against public figures involves a high bar (that high bar being the real actual malice, not the pretend one in this letter) Ackman tried to argue she wasn’t a public figure:
So, according to Bill Ackman, she’s not a celebrity academic or a public figure, but the threat letter on her behalf has eight pages lauding all of her accomplishments, awards, public exhibitions including at top museums around the world, the description in the NY Times of how she’s “a Modern-day da Vinci” and more. So, I guess they’re not even going to try to argue that she’s not a public figure.
There’s also a ridiculous number of words describing the alleged “harm” all of this has had, failing to recognize that if Ackman hadn’t made such a big deal of all of this, the story likely would have died out after a day or two as people got a good laugh at Ackman’s hypocrisy and moved on. Instead, his continued talking about it, and now sending this letter have only guaranteed that many more people are aware of all of this. If there’s any harm (and that seems unlikely) much of it should be pinned on Ackman’s inability to let this go.
On the final page of this opus, we get the “demands.”
Axel Springer and Business Insider must mitigate the damage they have caused by correcting their libelous reporting, issuing statements setting the record straight, making a sincere and meaningful public apology to Dr. Oxman and Ackman, and creating a fund to compensate other victims of Business Insider’s libelous reporting and to discourage their inappropriate conduct in the future. (Dr. Oxman is seeking no compensation for herself to make available additional resources for other victims.) Failure to take these steps will expose Axel Springer and Business Insider to substantial legal liability and will be further evidence of actual malice directed toward my client.
This is nonsense. I’m quite sure BI’s general counsel is not worried about this. Nothing in the letter indicates anything close to the level that would be defamation. The only real question — and the likely real intent of the letter — is whether or not all the rich folks that Ackman called up and texted during this whole mess, including Dopfner, Henry Kravis, and Axel Spring board member Martin Varsavsky, decide to just go along with this to hush up the mouthy rich guy so they won’t have to deal with more of this nonsense.
At this point, it’s pretty clear that Oxman (and Ackman) have no actual defamation case here. They have a lot of noise and bluster. And sometimes that’s enough to get a publication to back down (which Clare Locke seems to want you to believe they can produce in every case). But it would be a fucking shame and an embarrassment if Axel Springer/BI caved here, and would put all of its future reporting in question by showing that they could be bullied by specious, vexatious legal threats.
In Ackman’s tweet revealing this letter, he claims that he hasn’t sued first because “people we highly respect” had told him that Axel Springer was “perhaps the strongest long-term supporter of the state of Israel of any media organization, and also an important advocate against antisemitism.” What that has to do with anything in the letter, I do not know.
In the end, this is just more censorial bullshit. It’s hilarious that Ackman presents himself as a “free speech absolutist” when he’s doing this shit to seek to pressure (as it’s commonly defined!) BI into removing these stories. It misses the entirety of the point of these articles and pretends they’re about attacking Oxman, when it’s obvious to anyone outside of Ackman’s immediate sphere that the intent was to highlight the very, very different treatment Ackman gives to the accusations against Gay and Oxman.
Indeed, this very letter demonstrates that point to a much greater level. All this letter does is call that much more attention to Ackman’s disgusting double standard. When it’s someone he doesn’t like for other reasons, he’s willing to play up the plagiarism claims and push for them to lose their job. When it’s his wife, he tries to burn down an entire media outlet.
All this letter shows is that Bill Ackman is a censorial hypocrite.
There are lots of things you can call veteran Cincinnati police officer Ryan Olthaus. Some people called him a racist, after he appeared to flash the “ok” sign (something associated with [but not limited to] white supremacists) at anti-police violence protesters.
You can also call him a coward. After all, he couldn’t be bothered to use his own name when suing Facebook users for calling him a racist. Instead, he spent several months trying to keep his own name out of his own litigation. He first secured an extremely unconstitutional temporary restraining order that forbade the defendants from publishing his real name on social media.
Then he managed to talk the court into allowing him to proceed with his lawsuit anonymously, claiming that anonymity was probably the only way to prevent him from being murdered or whatever by internet users. I mean, that’s what his lawyer argued when trying to prevent the restraining order from being lifted.
[Defendants] make this claim even though the potential harm to the officer and his family from the publication of his personal information, occasioned by the protestors’ own baseless and malicious social media posts, far outweighs any burden from the limited restriction on doxing him.
And whatever this is…
Recent FBI data show upticks in police officer killings during years when there have been major incidents of civil unrest across the country.
This word salad managed to convince the lower court, but Officer Ryan Olthaus’s victory was short-lived. In early 2022, the Ohio Supreme Court said Olthaus needed to use his real name if he wanted to move forward with his libel lawsuit.
Roughly two years later, Ryan Olthaus, police officer and alleged racist, has suffered another loss. According to the Ohio Appeals Court, calling Officer Ryan Olthaus a racist is just the First Amendment doing its job. (h/t Volokh Conspiracy and Eugene Volokh in particular, who filed a brief arguing against Olthaus’s anonymity request)
The court [PDF] says that this is what it’s here for: to allow people to seek redress for their grievances. And yes, libel is not protected by the First Amendment. But this isn’t libel, it’s the other thing: protected opinion.
Faced with public accusations that he is a “white supremacist” who flashed a “white power” hand sign at a demonstration, plaintiff-appellant Ryan Olthaus, a Cincinnati police officer, sought redress through defamation law and several related causes of action. But, as justifiably aggrieved by defendants’ assertions as he may feel, defamation law does not allow for recovery when the statements in question constitute opinions (rather than false statements of fact), nor without a showing of actual malice by a public official.
What’s that thing people like Officer Olthaus (assuming he is the sort of bigot he appears to be) are often heard saying? Oh, yeah. “Facts don’t care about your feelings.” It may suck to be called a racist by Facebook users. It certainly sucks if you aren’t actually a racist. But if you give people the impression you might be a bit of a bigot (even unintentionally), they’re going to form opinions. And the First Amendment (along with Ohio’s own constitution) protects statements of opinion.
This appeal was handled poorly by Olthaus and his legal rep. Given the facts of the case, it would have been impossible to do it well, especially after having wasted time and money on unconstitutional restraining orders and trying to keep his name out of the papers (court and otherwise).
Rather than address the grounds stated in the lower court’s dismissal of his lawsuit, Olthaus decided to make the absurd claim that opinions stated during the heat of nationwide protests against police violence were somehow more harmful than normal opinions and, accordingly, less protected by the First Amendment.
Faced with the trial court’s dismissal of his defamation and related claims on the basis that Defendants’ statements were either true or matters of opinion, Officer Olthaus fails to directly address the trial court’s reasoning on appeal. Instead, he emphasizes the notice-pleading standard and the harm that Defendants’ statements occasioned, responding to the trial court’s reasoning only to assert that “[i]n the political atmosphere that existed at the time of the incident, Appellees’ statements rose above mere opinion when they were designed to personally attack and cause harm.” But this statement does not reflect the standard for recovery under Ohio defamation law. Tellingly, Officer Olthaus cites no case law to support this argument, does not suggest the trial court used the wrong legal standard in its decision, and does not assert that it misapplied any relevant case law. Rather, he broadly asserts that the trial court got it wrong and assures us that he could prove his point later in the litigation.
Yeah, that’s the substance of the arguments: if you guys would just let me litigate endlessly, I’m sure I could show that I’ve been defamed. My basis for these assertions are [CITATION NOT FOUND].
Likewise, he advances no substantive argument responding to the trial court’s conclusion that he failed to plead actual malice and that “[a]ctual malice cannot be established in this case.” He merely asserts that, “given the opportunity,” he could demonstrate the falsity of the assertions and Defendants’ reckless disregard for them. Again, he fails to advance any argument for how he would prove such a point, which ultimately rests on the trial court’s conclusions that statements of opinion cannot be made with actual malice and are not actionable in defamation.
This means Officer Ryan Olthaus must now have his arguments made by the state appeals court. The court goes the extra mile, perhaps if only to clearly demonstrate to the willfully obtuse cop how badly he’s lost this lawsuit.
In shutting Olthaus down, the appeals court makes it clear this lawsuit is not only bogus, but has been badly handled since day one, with the officer and his legal rep failing to do the very basic things they’re supposed to do when arguing in court. Common things, like citing relevant case law. Or, you know, using “actual malice” correctly.
Though the above conclusion suffices to affirm the trial court’s dismissal of the defamation claims, we further agree with the trial court that Officer Olthaus failed to sufficiently plead actual malice. In his complaint, he refers only to Defendants’ “malicious” conduct and “false” statements, avoiding both the phrase “actual malice” and the critical test from New York Times Co. v. Sullivan for public official defamation plaintiff…
[…]
Apart from failing to recite the required language, Officer Olthaus also fails to allege any facts showing that Defendants acted with actual malice. The closest he comes is in accusing Ms. White and Ms. Gilley of “falsely” accusing him of using a “white power” hand signal in their citizens’ complaints. Even generously construing his assertions as invoking the standard of “actual malice” and taking them as true, we agree with the trial court that this “fact” cannot suffice as pleading “actual malice” because the assertions are either true or statements of opinion. Officer Olthaus admits to making the gesture, so that fact is true, but he vigorously contests its meaning. But, as we indicated above, Defendants’ various assertions that Officer Olthaus is a “white supremacist” and that his gesture carried a racist meaning are fundamentally statements of opinion.
Yeah, this was never libel. And Olthaus should have known this. It’s clear he thought firing off a lawsuit would silence his online critics. When that didn’t work, he and his lawyer ran out of ideas and basically began winging it. At least Officer Ryan Olthaus, alleged racist, recognized the Streisand Effect would come for him following the filing of this lawsuit and made some moves to stave off that inevitability. Sure, these efforts failed almost immediately, but at least he tried.
Sometimes, bad things happen to good people when discussions go sideways on social media services. And, sometimes, stuff happens to Officer Ryan Olthaus. But no matter who’s filing the lawsuit, the law is still the law.
We recognize and appreciate Officer Olthaus’ point that the allegations of white supremacy were incredibly damaging to him, personally and professionally. Social media has the capacity to ruin lives with the click of a button, but courts do not exist to referee debates on those platforms, nor could we do so consistent with the First Amendment and the Ohio Constitution.
Olthaus loses again. He’s out whatever money he’s spent on this and none of this has done anything to rehabilitate his reputation. Instead, all it’s done is hammer the point home that this officer in particular can’t handle being criticized by people with far less power than he has.
The latest insanity is a bill [PDF] written by state senator Jason Brodeur. It aims to completely rewrite defamation law (and completely undermine the First Amendment) so that people like Brodeur can sue anyone who calls them racist, bigoted, transphobic, homophobic, or anything along those lines.
This bill has been crafted by an absolute idiot who either doesn’t know or doesn’t care that court after court after court after court has ruled that statements implying someone is bigoted (no matter what form of bigotry it is) are protected speech. It’s all opinion. These statements aren’t actionable under defamation law because they cannot be proven to be true or false. These statements are made by people who base their opinion on what someone has said or done. And while it’s terrible to be on the receiving end of these accusations if they’re false (or even just misguided), this law has been written solely to silence the critics of people who do engage in what appear to be bigoted actions.
The most obvious beneficiaries of this pile of First Amendment violations would be Republican legislators in Florida, who have spent most of the past few years passing legislation that specifically targets LGBTQ+ residents. So, of course they would love a law that allows them to sue people for calling out their bigotry while simultaneously shifting the burden of proof to defendants. You know, the exact reverse of the legal process. It will also benefit the worst members of their voting bloc, so there’s that added benefit.
The only way to demonstrate how fucked up this bill is is to quote from it generously.
The first thing the law does is strip long-held protections from journalists, allowing them to be sued just as easily as anyone else.
[P]roviding that provisions concerning journalist’s privilege do not apply to defamation claims when the defendant is a professional journalist or media entity
This proposed addition to the state’s statutes appears to rewrite the law to ensure that only plaintiffs in these lawsuits are capable of recovering costs and fees, even if they do not prevail.
770.09 Application of costs and attorney fees in defamation cases.—The fee-shifting provisions of s. 768.79 do not apply to defamation or privacy tort claims. Notwithstanding any other provision of law, a prevailing plaintiff on a defamation or privacy tort claim is entitled to an award of reasonable costs and attorney fees.
Here’s where the bill really gets going. It basically says implying someone is a bigot is not only legally-actionable, but is per se defamation, i.e. presumptively defamatory, which shifts the burden of proof to the person accused of defamation.
(1) A fact finder shall infer actual malice for purposes of a defamation action when:
(a) The defamatory allegation is fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified anonymous report; (b) An allegation is so inherently implausible that only a reckless person would have put it into circulation; (c) There are obvious reasons to doubt the veracity of the defamatory allegation or the accuracy of an informant’s reports.
There are obvious reasons to doubt the veracity of a report when: 1. There is sufficient contrary evidence that was known to or should have been known to the defendant after a reasonable investigation; or 2. The report is inherently improbable or implausible on its face; or (d) The defendant willfully failed to validate, corroborate, or otherwise verify the defamatory allegation.
Not only would the law make it per se defamation to express your belief that someone is bigoted or has acted in a bigoted way, but the law deprives defendants of affirmative defenses, and, indeed any defenses at all, including that most famous of defenses: the goddamn First Amendment.
(2) An allegation that the plaintiff has discriminated against another person or group because of their race, sex, sexual orientation, or gender identity constitutes defamation per se. (a) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s constitutionally protected religious expression or beliefs. (b) A defendant cannot prove the truth of an allegation of discrimination with respect to sexual orientation or gender identity by citing a plaintiff’s scientific beliefs.
The end result of this stacked deck is libel cases where plaintiffs sued people over protected speech and have an extremely high chance of walking away with “statutory damages of at least $35,000.”
A public figure does not need to show actual malice to prevail in a defamation cause of action when the allegation does not relate to the reason for his or her public status.
And from there, the chilling effect gets even more amped up by making “editing” of new articles, reports, and quotes from sources part of the libel process (as it were).
(3) Editing any form of media so that it attributes something false or leads a reasonable viewer to believe something false about a plaintiff may give rise to a defamation claim for false light.
What the actual fuck. I mean, this basically turns every lawsuit against a journalist or op-ed writer into a defamation slam dunk.
Plaintiff: Was this article edited in any way? Journalist defendant: Of course. Every article goes through an editing process. Plaintiff: I rest my case.
Unbelievably, the bill doesn’t attempt to erase the state’s anti-SLAPP law. But that’s probably because the bill turns SLAPP suits into wins for people who want to silence their critics by taking them to court for criticizing them. As far as this law is concerned, any action brought under it is a legitimate defamation lawsuit, and not something less legitimate that might be subject to the existing anti-SLAPP law.
This bill pretends the First Amendment does not exist. It operates in a vacuum where decades of Supreme Court precedent don’t immediately invalidate pretty much every word of this insipid bit of legislative garbage. If the legislature is stupid enough to pass this (it might be!) and Governor Ron DeSantis is dumb enough to sign it (ALL SIGNS POINT TO YES), it’s going to get laughed out of court the moment a judge lays eyes on it. If the intention is to make the Florida legislature look even more ridiculous than it already does, mission accomplished.
