We previously discussed the defamation lawsuit brought by Navy veteran Zachary Young against CNN and anchor Jake Tapper. Young has been doing well in court and last week he won on additional major issues against CNN. In a pair of orders, the jury will be allowed to award punitive damages and his experts would be allowed to be heard by the jury on the damages in the case. It also found that the Navy veteran was not a public figure and thus is not subject to the higher standard of proof associated with that status.
The punitive damages decision is particularly interesting legally. It could prove financially onerous for the struggling network, which has plunging ratings and has reduced staff.
The court found that CNN’s “retraction” was insufficient to remove punitive damages from the table. In my torts class, we discuss retraction statutes and the requirements of time and clarity. I specifically discussed the CNN case.
The report at the heart of the case aired on a Nov. 11, 2021 segment on CNN’s “The Lead with Jake Tapper” and was shared on social media and (a different version) on CNN’s website. In the segment, Tapper tells his audience ominously how CNN correspondent Alex Marquardt discovered “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.”
Marquardt piled on in the segment, claiming that “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” to flee the country. He then named Young and his company as an example of that startling claim.
The damages in the case could be massive but Young was facing the higher New York Times v. Sullivan standard of “actual malice,” requiring a showing of knowing falsehood or a reckless disregard of the truth. Judge Roberts previously found that “Young sufficiently proffered evidence of actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages.”
The evidence included messages from Marquardt that he wanted to “nail this Zachary Young mfucker” and thought the story would be Young’s “funeral.” After promising to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!” Likewise, CNN senior editor Fuzz Hogan described Young as “a shit.”
As is often done by media, CNN allegedly gave Young only two hours to respond before the story ran. It is a typical ploy of the press to claim that they waited for a response while giving the target the smallest possible window.
In this case, Young was able to respond in the short time and Marquardt messaged a colleague, “fucking Young just texted.”
That record supports a showing of actual malice. However, CNN wanted to avoid punitive damages with a claim of retraction. Under Florida’s Section §770.02(1), a publication seeking this protection must publish a “full and fair correction, apology or retraction.” While the statute does not define “full and fair” it does specify that the retraction shall be “published in the same editions or corresponding issues of the newspaper or periodical” where the original article appeared and ‘in as conspicuous place and type’ as the original, or for a broadcast “at a comparable time.”
In this case, Jake Tapper made the following statement on March 25, 2022:
“And before we go, a correction. In November, we ran a story about Afghans desperate to pay high sums beyond the reach of average Afghans. The story included a lead-in and banner throughout the story that referenced a black market. The use of the term black market in the story was in error. The story included reporting on Zachary Young, a private operator who had been contacted by family members of Afghans trying to flee the country. We didn’t mean to suggest that Mr. Young participated in the black market. We regret the error and to Mr. Young, we apologize.”
However, the court noted:
“The retraction/correction was not made during the other television shows in which the Segment aired. No retraction, correction or apology was posted on any online article or with any social media posting. Defendant’s representatives referred to the statement made on the Jake Tapper show as a correction rather than a retraction.”
Not only did the court find that insufficient, but it menacingly added, “the Court finds that there is an issue of material fact as to whether Defendant published a full and fair retraction as required by §770.02 for the televised segment and no retraction for the social media and online article postings, which could be additional evidence of actual malice.”
This is relatively new ground for the Florida courts and will undoubtedly be appealed in time. For now, punitive damages will remain an option for the jury. The message to news organizations is that minimizing retractions can produce a critical loss of the coverage of the common statutory provisions protecting the media.
It is also worth noting that Young was found to be a private individual and not a “public figure.” After the Supreme Court handed down New York Times v. Sullivan, it extended the actual malice standard from public officials to public figures. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974), the Court wrote:
“Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.”
The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
In creating this higher burden, the Court sought to create “breathing space” for the media by articulating that standard for both public officials and public figures. Public figures are viewed as having an enhanced ability to defend themselves and engaging in “self-help” in the face of criticism. The Court also viewed these figures as thrusting themselves into the public eye, voluntarily assuming the risk of heightened criticism. I have previously written about the continuing questions over the inclusion of public figures with public officials in tort actions.
However, the court found that Young did not trip this wire.
“Young’s limited posts do not constitute him thrusting himself ‘to the forefront’ of the Afghanistan evacuation ‘controversy.’ In total, Plaintiffs worked for four companies and evacuated 22 people from Afghanistan. Per Defendant’s Segment, ‘[t]here [were] fewer than Page 13 of 34100 American citizens in Afghanistan who [were] ready to leave’ and ‘countless Afghans, including thousands who worked for or aided the US . . . who are frantically trying to leave.’ While Young was clearly trying to advertise his services, it can hardly be said that he played a sufficiently central role or was at the forefront in being able to influence the resolution of all those unable to escape Afghanistan. He was not going to get all these thousands of people out, nor was he ever intending to as he (according to his posts and testimony) was only assisting those with sponsors. He also was not going to convince the Taliban to let these folks leave the country. As such, Plaintiffs do not meet the test for this second suggested controversy to be labeled as limited public figures.”
The court also ruled that Young would be allowed to keep his economic damages expert witness, Richard Bolko, a ruling that, in conjunction with the punitive damages matter, could spell real trouble for CNN.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
Jake is my kind of guy! Fairly unbalanced!
For CNN, lying and slandering is just business as usual.
“Mr. Young, should I bring a car from the carriage house?”
“Yes, Jake, the Maybach, and when we return, please wash and polish the car, as we will be traveling in the rain.”
Enjoying that Alex Jones precedent now?
Esther 7:10
Asset stripping seems to be the new way of crushing your enemies. Rudy gulianni is being fleeced naked in New York. Our ” Justice” system is sick and on life support.
DNC lawyer Marc Elias, fellow member of Professor Turley’s Bar Association approves of that fleecing. That’s how they intended it to work.
CNN = Fake News. Perhaps we will see Jake Tapper going the Harry Litman route and becoming a blogger???
Re: “It also found that the Navy veteran was not a public figure and less is not subject to the higher standard of proof associated with that status,” should “less” be “thus”?
Continue reading
Comment
How is it, (and WHERE is it documented?) that’s there is a “higher standard of proof associated with that status”?
The Alex Jones precedent , what comes around
How is it, (and WHERE is it documented?) that’s there is a “higher standard of proof associated with that status”?
NY Times v Sullivan and its progeny.
The DNC itself escaped being similarly held accountable for defaming and successfully destroying the life and career of another Navy veteran, Carter Page.
His crime resulting in being targeted by the DNC wasn’t risking his life to gather intelligence for the FBI and CIA while working in Russia. His crime was agreeing to be an advisor to the 2016 Trump campaign, so Obama, Loretta Lynch and FBI Director James Comey targeted him in conjunction with the DNC.
‘Conspiracy Theories’ Are ‘Not Viable’: Court Dismisses Carter Page Lawsuit Against DNC
U.S. District Court Judge Harry Leinenweber dismissed Page’s defamation, false light, tortious interference with prospective economic advantage, and conspiracy lawsuit against the DNC as well as high-profile Democratic Party powerbrokers/attorneys Marc Elias and Michael Sussman for lack of jurisdiction.
In the order, Leinenweber said the DNC and law firm of Perkins Coie simply did not have sufficient ties in order for Page to maintain the civil lawsuit against them there. The basis of Page’s latest failed lawsuit is the still-controversial dossier compiled by Christopher Steele–an opposition research project started during the 2016 primary by the Hillary Clinton presidential campaign–care of the DNC headed by Donna Brazile and President Obama.
That dossier, almost entirely discredited, alleged that Page and other members of Trump’s 2016 campaign actively conspired with members of Russian intelligence agencies in order to assist the Republican nominee’s electoral fortunes.
The Hill: Supreme Court turns away Carter Page defamation suit against DNC
https://thehill.com/regulation/court-battles/588976-supreme-court-turns-away-carter-page-defamation-suit-against-dnc/
How is this different from the Epps case against FOX ? just a different judge – that seems random .
That’s quite the non sequitur you’re posing Maplady. Doesn’t appear to be a rhetorical question.
But wait! Epps claims he wasn’t working as an agent and FBI Director will not say how many CI personnel they had working the crowd the day before J6 and then during J6! That alone proves Epps’ complaint!
Should be a dead easy case for Epps to win!
I agree
Good for Young for pursuing this. Too bad these individuals will likely have their damages paid for by CNN or its insurer. But I hope the guy gets an award that runs into the millions of dollars. This case exemplifies the disgusting state of the media. For people like Young, the media are the enemy of the people.
Punitive damages no less. It could not happen to a more deserving industry or personage. My Hope is that Mr. Young succeeds and is rewarded with a nice, tidy sum.
Nice to know we are back to using a reasonable person’s assessment of events and dialogue
Isn’t Jake Tapper, the guy with the hang dog Eeyore face, the same lying partisan hack that said he will not allow liars to appear on his show? Hey Jake, you and your “correspondent” and your produce are all accused of lying.
Agreed, Turls. The two hour window to respond before story deadline, and the ‘public figure’ exception are widely abused….
Now on to Hunter Biden putting a gigantic defamation suit on to fox, and you personally, for the coordinated Roy cohn esque campaign you guys ran on him. In a perfect world he takes another three quarters of a billy bite out of you guys at the mothership.
A) Hunter Biden IS A PUBLIC FIGURE
B) Hunter Biden is guilty of almost everything he is being accused of and therefore truth is the defense
(1) name one thing Hunter is accused of that you think he didn’t do
C) Hunter Biden does not want discovery to be ordered
D) You are an obsessed idiot
I’d love to see discovery in a Hunter defamation case. Probably’ll get text messages between fox and Jordan and Comer. Good times. Party on, magat.
Anonymous, “Probably get text messages between Fox and Jordan and Comer.” Hey moron, too bad we can’t make a little wager about whether Hunter or Fox News would be more damaged by discovery in such a scenario.
Now let’s talk about text messages between Biden, Garland and the DOJ and Fani Willis, Alvin Bragg and Letitia James. We know that Fani’s boy toy went to DC twice before that little fiasco of a case was brought and we also know that the NUMBER THREE MAN in the DOJ resigned his federal position to go to work in Bragg’s little shop of horrors before that joke of a case was brought.
Care to comment?
Nicesnobby. Deflect move!! But I know how I’d wager, and win, hull slobby.
What would Hunter Biden actually get in discovery that isn’t already mapped out and online in the Biden Bribery emails and texts, intellectually feeble commie? The ones in that laptop Biden and Commie Useful Idiots like you told us 51 Intelligence Experts had determined was Russian Disinformation?
Bribery-Related Crimes
https://bidenreport.com/#p=55
Influence-Peddling Crimes
https://bidenreport.com/#p=477
The Biden crime cartel and their Commie Useful Idiots still haven’t figured out the Internet is forever.
While you’re there, you Hunter Biden type commie pervert, you might get off checking out Hunter Biden’s porno pictures in the section under “Sex-Related Crimes”.
Party on indeed, commie perv. Hunter Biden’s pardon doesn’t cover you.
Joe Biden wants this buried once and for all time lest his financial records are exposed. That is the one thread no one was able to pull in this story.
Turls… and don’t give me that “Hunter Biden was the victim of his father’s own Department Of Justice and Attorney General Garland” crap. They went rogue from pressure brought by Republicans with their coordinated Roy cohn esque campaign against Hunter Biden. As you well know, Hunter Biden would have never been investigated for so many years if his last name wasn’t ‘Biden’.
Back to your mothership, Turls.
+100
Even with JT’s out-referenced piece on NYT vs. Sullivan which is quite reasonable, I still don’t see how a double-standard can be erected by Willam Brennan in light of the 14th Amendment’s bestowing equal rights under the law. If there is a legal right to protection of one’s reputation via defamation law, how can it be eclipsed for a subset of citizens? How can SCOTUS accept a designation of “public person” which does not appear in any statute? If it were, that statutory definition could easily be challenged as unconstitutional under A14.
“Breathing space” is nothing more that a clever euphemism for irresponsible journalistic behavior, since it is always possible to report the news with sufficient fact checking to avoid false accusations. Sullivan allows neglect of responsibilities for accuracy.
I believe it’s time for Congress to take up public frauds legislation that creates fast-response torts in order that devious, deceptive infowarfare of a political nature can be confronted at the speed of the modern political infosphere — taking away from infowarriors the temporary advantages to deceive offered by the current slow, delay-ridden due diligence.
This new law would affirm the right of the public to trustworthy political information upon which to base public decionmaking — without which “the consent of the governed” becomes a free-for-all of inauthentic manipulation.
Will Jake have to pay personally from his own piggyback?
I am sure that the prospects of a Florida jury hearing this case will be a highly motivating factor for a big settlement
Like 1.5 billion dollars? Like what Alex Jones was “fined”?
People were dancing in the streets when Fox was sued. The blade cuts both ways.
Recently, Mika, from morning Joe was forced to read a retraction.
E.M., please see the View issuing 4 “corrections” in about a week’s worth of shows.
Only way Main Street Media/CNN will ever learn is to go after their $$$$$$$$. The Liberal/DEM press feels it can say and do anything and not be held accountable. Liberals hate it when they have to pay lots of $$$$$$$$$. CNN is losing watchers and ratings. But, they continue this Left Wing Liberal DEM press. Same with other networks. They are all losing to X. MSM is dieing and they don’t seem to care, they learned nothing from this election.
The terms dieing and dying may appear similar but carry different applications. Dieing is often a misspelling and rarely used to refer to an out-of-date term for a form of metalwork. Meanwhile, dying is the correct spelling used to express the process of approaching death or becoming extinct
Very good news. The network knows what it was doing with that limited retraction.
I think you meant to say “limited correction”, as the court ruled a retraction it was not.
Now that “reasonable persons” standards are being applied again, the Left is in deep trouble.