from the slapp-suits dept
Another day, another SLAPP suit. Back in 2015, NY Times reporter Eric Lipton wrote an interesting article detailing the close ties of the food industry with various academics in ways that some might find questionable. Most of the discussion focused on companies on both sides of the debate around whether or not there should be mandated labels on genetically modified foods (so called GMOs). And while it was one side of the debate that encouraged Lipton to look into this, he used Freedom of Information laws to get emails from a bunch of academic scientists working at state universities. This practice is a bit more controversial than other types of Freedom of Information laws — which are normally used to access government records from those in actual government agencies. However, in the more recent past, FOIA laws have been used to access academic emails, noting (correctly) that since state universities are technically government entities, those emails are considered public records.
Some of those emails between the academics and industry reps were, perhaps, less than flattering. And so one of the academics — Dr. Kevin Folta, the chair of the horticultural sciences department at the University of Florida — decided to sue Lipton and the NY Times for defamation. Somewhat surprisingly, Lipton and the NY Times failed to get the case dismissed at the Motion to Dismiss stage (basically your first chance to get a case tossed), though the Florida court expressed significant concerns about the overall case.
To be sure, an article?s ?spin,? grounded in the author?s opinion of the facts, is not actionable…. However, this Court cannot find as a matter of law that all of the statements and their alleged implications are not defamatory. A few of the article?s statements give this Court pause. For example, the article states that Plaintiff conceded that some could view him as ?a tool of the industry.? … But Plaintiff contests this assertion, claiming that Defendants twisted the reporter?s alleged accusation that Plaintiff was a tool of the industry during his interview and falsely reported that Plaintiff volunteered the concession…. Such an admission, reportedly from the mouth of a researcher in academia, could very well injure that researcher?s reputation among his peers. As would the statement that Plaintiff ?defended? or ?promoted? Monsanto?s products. Viewing the facts in the light most favorable to Plaintiff, this Court is unable to determine as a matter of law whether these statements are defamatory. This Court will not narrow the claim any further at this stage.
The court also had some questions about whether or not Lipton and the NY Times were protected by the fair reporting privilege, which (more or less) says that it’s not defamatory for news organizations to report on documents obtained by the government. And, thus, the case had to go through another (expensive) round up to the summary judgment stage, wherein the court, thankfully, dismissed the entire case.
The judge starts by exploring the question of whether or not the quotes from the various emails are covered by the fair reporting privilege, and where the court was not ready to agree that it was in the earlier stage, here it notes it’s obvious that these emails are covered by that privilege:
Emails sent to or from a public university email address?and related to the official business of that university?are public records…. Personal emails present on a government agency server are not public records, as ?[t]he determining factor is the nature of the record, not its physical location.? … Plaintiff?s emails are related to official agency business. Although Plaintiff opposes Defendants? characterization of his emails,… this argument is undercut by his own assertions of the centrality of public and industry engagement to his position at UF. See, e.g., ECF No. 64-41, at 2 (detailing duties and referring to letter from Plaintiff?s ?direct supervisor?); ECF No. 64-40, at 1?2 (letter from Plaintiff?s supervisor indicating that his position requires interpreting and delivering scientific results to the public as well as ?integrat[ing] with industry and interact[ing] with companies?).
Plaintiff?s argument that his emails are not public records because they are not ?intended to perpetuate, communicate, or formalize knowledge of some type? is also unpersuasive…. The court in Shevin recognized that inter- and intra-office memoranda could constitute public records, even when only in draft form or when directed to file…. Only ?rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation? were provided as examples of items falling outside the public records label.
Thus, his emails are public records, and because, as such, they were handed over by the government of Florida, using them is protected by the fair reporting privilege.
In summary, this Court has determined that Plaintiff?s emails, as produced by UF, have both been disclosed by a government agency and constitute public records. As a result, they can form the basis of the fair report privilege.
The next question, though, is whether or not Lipton made a “fair and accurate” report of those emails. The court lumps the various statements at issue in the case into different categories, and looks at each of them, and whether or not the reporting was fair and accurate — and in each case concludes that it was. The fact that some of the reporting was characterized in a way that Folta didn’t like doesn’t change that.
Plaintiff would prefer this idea to be communicated more neutrally?perhaps as a statement that he often explains the science of GMO technologies. But this preference is not the yardstick by which statements in a news report are measured. Defendants? statements must be only ?substantially accurate,? and Defendants have a right to focus and color their report to capture and hold readers? attention.
Some of the claims were that Lipton was selectively quoting the emails, and thus portraying Folta unfairly, but the court doesn’t buy it:
Plaintiff objects to Defendants? omission of several sentences, arguing that the abbreviated version presents the conversation in a completely different light…. The omitted sentences essentially state that the author is ?grateful that academics like [Plaintiff] are willing to speak out on the science in this area to the public? and thank Plaintiff for ?supporting science and for educating those who are open to science.? … It is not apparent that the inclusion of these sentences would at all change the effect of the statement in an average reader?s mind. If anything, their inclusion would likely strengthen the theme of industry executives seeing value in professorial allies. As a result, Defendants provided a fair and accurate abbreviation of the email in question, so the statement is covered by the fair report privilege.
More generally, Defendants are under no obligation to include additional information that would portray the Plaintiff in a more favorable light. The press can select the focus of their own publications, without regard to presenting both sides of every issue.
What’s quite interesting after that is that the judge goes on a bit of a philosophical discussion about the use of defamation laws these days to silence the press, even alluding to President Trump’s wish to “open up libel laws.” It’s quite an interesting read:
Given the current climate, it is important to recognize the critical nature of the privilege and the necessity of its expansive application. Today?s environment has created a unique prism for defamation actions and the protections intended to ensure a free press. When politicians plan to ?open up our libel laws,? and then after winning elections, continue to pummel the press and decry anything unflattering as ?fake news,? it is clear that the Fourth Estate is under attack. When those in power describe lawful investigations as witch hunts and ?[c]arefully sourced journalism? as ?fake news from the enemies of the people,? it is especially important for the judiciary to consider carefully its role in providing the media ample space to exercise their First Amendment rights….
Beyond these verbal and 140-character attacks, there is also evidence to suggest that the media is losing in libel and privacy suits much more often and at a greater cost than in the past. RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U.L. Rev. Online 47, 58 (2017). The press has won only 39% of the privacy and libel cases at trial since 2010. Emily Bazelon, Billionaires vs. the Press in the Era of Trump, N.Y. Times (Nov. 22, 2016), https://www.nytimes.com/2016/11/22/magazine/billionaires-vs-the-press-in-the-era-of-trump.html. The average award granted against media defendants in the 1980s was $200,000; the median damage award has now grown to $1.1 million. Id. Today, it seems that super-wealthy individuals?undeterred by the negative outcomes and market forces that used to prevent many defamation suits?can treat ?suing the press as an investment? and can pursue their objectives by funding cases and waiting for the right combination of issue, judge, and jury.
The judge then notes that while this is not like a typical SLAPP suit of a wealthy individual trying to silence the press, it’s still important to protect a free press in this age:
This case is not one cooked up by billionaire opponents of a free media. Plaintiff seeks only a remedy for the reputational damage he alleges he suffered because of Defendants? publication. Plaintiff would have this Court apply a narrow understanding of the fair report privilege?either through exempting his emails from the definition of public records or by applying a considerably harsher ?fair and accurate? reporting standard. Despite this Court?s sympathy for and understanding of Plaintiff?s case, it cannot act as Plaintiff suggests. A cramped reading of the privilege would undercut its very purpose. It would open the door to far less meritorious suits by far less scrupulous plaintiffs, and it would contribute to the ongoing chipping-away of the rights and privileges necessary to the press?s ability to play its intended role as government watchdog. This Court will not do so.
The court then discusses a few remaining claims that were not from the emails, and thus not subject to the fair reporting privilege, but finds none of them defamatory, noting that they are either opinion or simply “not susceptible of a defamatory meaning” in the case of Lipton saying that Folta had “conceded” that he could be seen as a “tool of industry.”
Then, the judge goes back to philosophizing about the state of media and defamation these days:
In today?s world of ?fake news? and near-constant attacks on the traditional media, this Court is especially sensitive to upholding the legal protections that enable the press to act effectively in its essential task of policing the government.
Nice to see a judge recognizing these things.
I will note two surprises with this. First of all, even though Florida has a fairly broad anti-SLAPP law, it does not appear that the NY Times and Lipton sought to use it. The judge never even mentions anti-SLAPP issues at all. Perhaps there was a reason for this, but it’s still a bit surprising, nonetheless. The second surprise is that there doesn’t appear to be any discussion on the “actual malice” standard or whether or not Folta was considered a public figure. Perhaps these issues were decided earlier in the proceedings (I did not go through the entire docket), but it seems like (a) Folta would likely qualify as a public figure, and (b) even given everything else, it’s hard to see how Folta could have made it over the “actual malice” hurdle. I guess the judge didn’t even need to go there, given that all the claims were easy to dismiss on other grounds.
Overall, a good win for a free press and the First Amendment, though again upsetting that yet another reporter had to deal with such a lawsuit.