Project Veritas has followed through with the pledge of its founder James O’Keefe to sue CNN over coverage of the ban imposed by Twitter (The group also sued Twitter in a separate lawsuit). There has been an explosion of such defamation lawsuits including a suit by Dominion against Fox News (For full disclosure, I am a Fox contributor). The lawsuits raise interesting but challenging grounds for media lawsuits.
As in past controversies, Twitter has refused to respond to inquiries on the basis of its suspension or its countervailing treatment of other news and advocacy organizations. The Project maintains that it was banned after one of its reporters confronted Facebook vice president Guy Rosen outside of what appears his home. That is a fairly common encounter with media. However, the issue in the CNN lawsuit is not basis for but the reporting of the permanent suspension.
Project Veritas notes that both CNN and anchor Ana Cabrera knew the grounds for the suspensions since on February 11, 2021, and in subsequent reports, it noted that Project Veritas was permanently banned from Twitter for a video/tweet that violated “the platform’s policies prohibiting sharing—or threats of sharing—other people’s private information without consent.” Brian Fung, “Twitter permanently bans Project Veritas account,” CNN.COM (February 11, 2021), https://www.cnn. com/2021/02/11/tech/twitter-project-veritas/index.html; Ana Cabrera 3 (@AnaCabrera), Twitter (February 11, 2021), https://twitter.com /anacabrera/status/1359977301312761857?lang=en.
However, the Project alleges that ‘on February 15, 2021, CNN made a provably and knowingly false statement of fact to the effect that Twitter had banned Project Veritas on February 11, 2021, because Project Veritas violated Twitter’s rules related to ‘authenticity’ by ‘promoting misinformation’—not, as Twitter itself had claimed, for the violation of Twitter’s policy regarding the truthful dissemination of ‘private information.'” It cites a report from CNN’s Cabrera on February 15, 2021, on being banned for misinformation when she herself reported that the ban was for an alleged privacy violation.
The question is whether reporting a suspension as basis on “misinformation” is defamatory when someone was suspended for violating privacy rules. Both are damaging to reputation but one indicates an effort to deceive. While controversial in its tactics, the Project maintains that it runs truthful videotapes and stories. In advancing a single defamation count, the Project asserts:
“The distinction between Defendant’s false statements about Project Veritas’s ban from Twitter and the statements Twitter itself made about the ban is immensely important and speaks directly to Project Veritas’s fitness to engage in investigative journalism, as that term has been historically defined. Until recent times, truthful and accurate factual reporting was the hallmark of investigative journalism, and great journalism was marked by its neutral portrayal of facts rather than its ability to further a preferred narrative. Project Veritas’s mission requires its faithful adherence to traditional notions of journalistic integrity, and CNN’s false statement Twitter banned Project Veritas for “promoting misinformation,” is injurious to Project Veritas’s professional reputation.”
The question is whether it will be enough to get the Project to discovery by defeating an expected motion to dismiss. The Project recently won a significant victory in defeating such a motion from the New York Times. If they are able to get into discovery, the Project could seek depositions with Twitter and CNN officials — a prospect neither company would relish.
Project Veritas has been accused of misleading edits or accounts. Last September, Stanford University and University of Washington researchers wrote that a Project Veritas video alleging voter fraud with unidentified sources was what a “a domestic, coordinated elite disinformation campaign looks like in the United States.” However, that does not appear to be the reason for the Twitter suspension. There remains many questions about the suspension from Twitter which has shown little sense of obligation to clarify its actions against a conservative media outlet. There are legitimate concerns that Twitter is using a different standard in banning the Project than it applies to other media and public interest organizations.
What is most interesting about the lawsuit is that there is long-standing animosity between Project Veritas and CNN. Indeed, the Project has repeated targeted CNN figures and O’Keefe posted a video of his crashing a private CNN teleconference in December. That could be cited as evidence of malice.
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. This is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.
Over at Fox, the network is facing lawsuits by the company Smartmatic as well as a $1.6 billion lawsuit from Dominion Voting Systems over the coverage of allegations of fraud and election tampering made by Trump lawyers. Fox maintains that it was merely covering the allegations while the company insists that hosts went beyond reporting and affirmed the allegations as true. Hosts Maria Bartiromo, Jeanine Pirro and Lou Dobbs are also named as defendants.
The Smartmatic lawsuit is far more detailed and comprehensive. However, it is focused on debunking the claims of Trump lawyers like Giuliani and Powell and then accusing Fox hosts of giving unwarranted credibility to the claims in interviews. The complaint cites, for example, this statement by Dobbs after allowing Giuliani to recount his allegations:
“And Rudy we’re glad you’re on the case and, and pursuing what is the truth and straightening out what is a very complicated and difficult story. And by the way, it’s not only difficult, it has the feeling of a cover up in certain places, you know, putting the servers in foreign countries, private companies, we don’t have transparency with those servers. This is, this is an election nightmare, as well as a battle.”
In its complaint, the company also cites reports like this one on November 15 from Bartiromo who also interviewed Giuliani. Bartiromo stated “One source says that the key point to understand is that the Smartmatic system has a backdoor that allows it to be [ ] or that allows the votes to be mirrored and monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.” She then showed a graphic, explaining that it was “showing the states where they stopped counting, which I thought was also strange to stop counting in the middle of election night.”
Fox insists that she was recounting accurate what the lawyers were arguing and that “To the extent Bartiromo linked Smartmatic and Dominion in her voice-over of the Dominion graphic, she simply misspoke, later clarifying that the graphic referred only to Dominion voting machines.”
The company disagrees: “The Fox anchors knew what Giuliani and Powell would say on their shows, asked questions to elicit lies about Smartmatic, and endorsed Giuliani’s and Powell’s investigation. The Fox anchors added their own defamatory comments about Smartmatic for good measure. This was a scripted performance by the Fox anchors, Giuliani, and Powell to defame and disparage Smartmatic for personal gain.”
On the day, Project Veritas filed against CNN, Fox responded to Smartmatic’s lawsuit:
“Smartmatic may be frustrated that it became embroiled in a heated national controversy, but one cannot supply voting technology and expect to avoid the spotlight. Controversy comes with the territory. And it was the President’s allegations, not the press’s coverage of them, that put Smartmatic in the spotlight. Smartmatic’s effort to hold Fox responsible for ensuring that the public understood what the nation’s highest elected official was claiming (and what numerous government agencies were investigating) is a profound threat to the ‘uninhibited, robust, and wide-open’ debate that the First Amendment safeguards.”
The different lawsuits will test the leeway afforded media in such coverage. Both networks insist that they were characterizing or summarizing claims. These cases are expected to produce major new precedent on the protections afforded media organizations under the defamation standards.