Nina Jankowicz is back. After a public outcry forced the Biden Administration to kill its infamous Disinformation Government Board, Jankowicz became famous or infamous as the head of the board. She became an instant Internet sensation due to a musical number in which she sang “You can just call me the Mary Poppins of disinformation” in a TikTok parody of the song “Supercalifragilisticexpialidocious.” After her brief stint in the Biden Administration, Jankowicz reportedly registered as a foreign agent with an British group to continue her disinformation work. She is now reinventing herself as the Mary Poppins of defamation and ostensibly seeking $100,000 to sue Fox News for defamation.
Jankowicz posted a five-minute video to her Twitter account along with a GoFundMe page. This video is strictly legal, not musical. According to the GoFundMe page, she is seeking to raise $100,000.
The production elements of her latest video are again top notch, but her facts are a bit more sketchy.
Jankowicz portrays herself as a defender of free speech who opposed efforts to censor viewpoints. As one of her critics, I strongly contest that self-portrayal. Indeed, one might even call it “disinformation.”
When she was appointed the executive director of the Disinformation Governance Board in April 2022, she was tasked with combating “disinformation” on subjects ranging from the U.S. southern border to other forms of disinformation.
While Jankowicz objects to the “overly personalized, false, and incendiary coverage of me,” it is only the false part that is actionable. Coverage is allowed to be “personalized” and even “incendiary” so long as it is true or protected opinion.
Jankowicz previously argued that Congress should create new laws to block mockery of women online by reauthorizing the Violence Against Women Act (VAWA) and including “provisions against online gender-based harassment.”
Jankowicz testified before the British House of Parliament about “gender misinformation” being a “national security concern” and a threat to democracy requiring government censorship.
She demanded that both tech companies and government should work together using “creativity and technological prowess to make a pariah of online misogyny.”
On the Hunter Biden laptop, Jankowicz pushed the false narrative that it was a false story and that “we should view it as a Trump campaign product.” She continued to spread that disinformation, including tweeting a link to a news article that she said cast “yet more doubt on the provenance of the NY Post’s Hunter Biden story.” In another tweet, she added “not to mention that the emails don’t need to be altered to be part of an influence campaign. Voters deserve that context, not a [fairy] tale about a laptop repair shop.”
She even cited the author of the infamous Steele Dossier as a guide for how to deal with disinformation. In August 2020, Jankowicz tweeted “Listened to this last night – Chris Steele (yes THAT Chris Steele) provides some great historical context about the evolution of disinfo. Worth a listen.” The Steele Dossier was viewed by American intelligence as relying on a suspected Russian agent as a source. These officials warned that it was itself used as a possible Russian disinformation vehicle.
She also joined the panic over the Musk threat to reintroduce free speech values to Twitter. In an interview on NPR, she stated “I shudder to think about if free speech absolutists were taking over more platforms, what that would look like for the marginalized communities.”
Jankowicz insists that the network’s statements about her were “easily disproven by a few minutes of research.” I do not know the full extent of Fox comments that she is referencing but the clips show protected opinion. People are allowed to view her “Disinformation Governance Board” as . . . well . . . a board seeking to govern disinformation. Regardless of whether it had direct authority to censor, it was clearly an effort to coordinate efforts to combat disinformation.
We are only now learning how extensive this system of disinformation measures may be. In my column in the Hill this weekend, I discuss yet another possible federally funded effort to target citizens and others for possible censorship. I noted that the Biden administration played us for chumps in the Board controversy. As we celebrated the demise of the infamous Disinformation Governing Board, the Biden administration never disclosed a larger censorship effort. That includes a recently disclosed back channel to Twitter where dozens of FBI agents tagged citizens for censorship. I recently testified on that new evidence.
Even if Jankowicz is seriously thinking of suing Fox News, she faces considerable factual and legal challenges. Under New York Times v. Sullivan. the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth. The same standard applies to public figures. Jankowicz was a public official when these comments began and she is now a public figure.
Ironically, this is precisely the environment in which the opinion was written and she is precisely the type of plaintiff that the opinion was meant to deter. The Court was seeking to protect the media from efforts to deter coverage and commentary through the threat of civil lawsuits. 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.
In this case, there were good-faith reasons for denouncing the work of this Board and the views of Jankowicz. Even when speakers have used terms like “blackmail” to denounce public figures, the Court has barred defamation lawsuits. For example, the Court dealt with such heated rhetoric in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:
It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.
The First Amendment limits the scope of defamation in some cases. As one court noted, “‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expressions[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” Ferlauto v. Hamsher 74 Cal.App.4th 1394, 1401 (1999)
Moreover, what constitutes an opinion as opposed to a factual claim is generally left to a jury: “some statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. ‘In these circumstances, it is for the jury to determine whether an ordinary reader would have understood the article as a factual assertion…’” Kahn v. Bower, 232 Cal.App.3d 1599, 1608 (1991).
In Wilkow v. Forbes, Inc., 241 F.3d 552 (7th Cir. 2001), opinion prevailed as a defense. In that case, a journalist with Forbes was sued for harsh characterizations of a lawyer and his practice. Judge Frank Easterbrook wrote that “although the article drips with disapproval of Wilkow’s (and the judges’) conduct, an author’s opinion about business ethics isn’t defamatory under Illinois law.”
Jankowicz’s self-portrayal as a defender of free speech is not shared by many of us in the free speech community. She is one of the leading advocates for disinformation regulations and de facto censorship. Moreover, the board was rightfully denounced as part of this insidious effort and even the Biden Administration abandoned it.
In the end, it is not clear how $100,000 could even fund the initial stage of a lawsuit against Fox. There is no guarantee that it would be used for that purpose. On her GoFundMe page, Jankowicz lists other uses for the money including “security” and “protecting me and my family.” She also lists “current costs” as including lawsuits where she is a defendant or investigations calling her as a witness. However, the video pitch only mentions using the money to sue Fox News, which will resonate more readily with many potential donors.
If she were to launch a defamation action, her greatest challenge is not the money but the governing case law. Jankowicz faces considerable tort and constitutional headwinds in seeking to sue over criticism of her career and views.
N.B.: For full disclosure, I appear on Fox as a legal analyst but my views on this blog are neither connected to nor approved by Fox or any of my other associated media companies as a commentator or columnist. I will repost columns that appear in newspapers or outlets.