from the just-because-you're-angry-doesn't-mean-you're-right dept
Michael Leidig, the owner of Central European News, wasn’t thrilled BuzzFeed called him the “King of Bullshit News” in a 2015 article. The BuzzFeed investigation dug into CEN’s publishing business and found the company did nothing more than generate a steady stream of salacious and rarely plausible “news” stories, which were then picked up by other “news” agencies (Mirror, Sun, etc.) less concerned with accurate reporting than with racking up page views.
The firm’s business model, like that of many other news agencies, is to sell a regular stream of stories and pictures to other media companies, which publish them under the bylines of their own reporters. In CEN’s case, these include a string of stories from relatively remote parts of China, India, Russia, and other non-Western countries. They tend to depict the inhabitants of those countries as barbaric, sex-crazed, or just plain weird. And often they are inaccurate or downright false.
Leidig, a UK citizen, sued. Libel laws in the United States aren’t anything like the ridiculous ones Leidig enjoys at home. Unsurprisingly, his lawsuit was tossed by the New York federal court. The court said Leidig couldn’t actually counter BuzzFeed’s assertions of “bullshit” with any real facts, so there was no chance passing this along to a jury would result in anything but a dismissal.
Leidig appealed the April 2019 decision. But there’s nothing better waiting for him at the appellate level. The Second Circuit Court of Appeals has rejected the bogus lawsuit with a five-page summary order [PDF].
The Appeals Court says the district court had it right the first time: if Leidig can’t prove BuzzFeed’s assertions were false, there’s no libel case to be made.
The District Court’s decision on summary judgment focused on falsity. The District Court observed that, apart from the conclusory affidavits of Leidig and CEN employees, Plaintiffs “provide no evidence that BuzzFeed’s eight statements about the CEN stories are false.” Leidig, 371 F. Supp. at 144. It further determined that “BuzzFeed has shown that no reasonable juror could find the statement[s] or [their] reasonable implications false.” Id. at 150.
Furthermore, this is not your normal defamation lawsuit.
For example, the District Court found that “[o]ther than Leidig’s self-serving and discredited testimony,” Plaintiffs offered no evidence regarding the accuracy of the story about young people walking cabbages in China out of loneliness. Id. at 145. Similarly, the District Court noted that, in Leidig’s deposition, he admitted that “he does not know where the quotes in the Two-Headed Goat Story came from.” Id. at 148.
Leidig argued that his insistence that he’s a good, honest man who employs good, honest reporters should be enough to allow the lawsuit to move forward. No deal, says the court. Not when free speech is on the line.
Plaintiffs primarily contend that the District Court incorrectly applied this Court’s decision in Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 188 (2d Cir. 2000), using it (erroneously, they argue) to eliminate from the court’s consideration “nearly all of [their] evidence, including declarations of Mr. Leidig and deposition testimony by him and by four of his journalists.” This contention is unavailing. As we held in Celle, “While a bland cryptic claim of falsity supported by the credibility of a witness might be sufficient to establish a proposition in other civil cases, the First Amendment demands more.” The District Court reasonably determined that Plaintiffs’ conclusory assertions alone are insufficient to establish a genuine issue of material fact with respect to the falsity of the contested statements made by Buzzfeed.
The lower court’s decision stands and Leidig is almost out of options. His lawyer appears to believe the Second Circuit Appeals Court can’t interpret its own decision.
Harry Wise, CEN and Leidig’s lawyer, told iMediaEthics, “A decision that credits one side’s evidence and devalues the other side’s violates the basic rules that should be applied on a motion for summary judgment. The idea that the First Amendment prevents a libel plaintiff from creating an issue of fact as to the libel’s truth or falsity by testifying that he does not do the bad thing that the libel accuses him of doing is simply wrong–not supported by the Celle case that the panel invokes or by any other authority.
Wise and Leidig are asking for an en banc hearing on the case. This seems unlikely to happen. This isn’t a novel issue that would be better addressed with a few more sets of eyes on it. It’s a bullshit lawsuit brought by someone who wasn’t thrilled his “news” service didn’t generate much factual news. “Bullshit” is a term of headline art and it has been properly applied here. Testifying that you “do not do the bad thing” just isn’t enough — not when the other side has plenty of evidence saying that yes, as a matter of fact, you do.