A new ad running to Abdul El-Sayed has been widely denounced as anti-Semitic in suggesting that Jews are taking food from Americans. The ad is the work of Rebellion PAC, a political action committee co-founded by The Young Turks host Cenk Uygur. Uygur has now struck out at CNN for a panel discussion that trashed the segment and claimed it is clearly defamatory. As a torts teacher, the claim popped this story to the top of my pile, and I thought it was worthy of addressing. The CNN segment is manifestly not defamatory. Whatever grievance that he may have with the network, it is not a legal one.

The ad shows a couple shopping for food when the husband grabs a dozen eggs.

Wife: “Honey, you’re going to have to put those eggs back.”

Husband: “They don’t like eggs anymore?”

Wife: “No, they like eggs. But we have to set that $7 aside for killing Palestinians.”

Husband: “What? Don’t we give Israel $4 billion a year anyway?”

Wife: “Yeah, and now we’re giving them another $26 billion. It’s like $161 per person. Apparently it’s costing us a lot of money to drop bombs on Gaza.”

Husband: “It’s terrible.”

Wife: “Yeah.”

Husband: “Don’t they get universal healthcare too?”

Wife: “Yeah, they do. We’re paying for that too, probably. Might as well put the bananas back.”

The 90-second advertisement ends with “Mike Rogers is for they/them. Abdul El-Sayed is for you.”

After the ad was presented by host Michael Smerconish, the CNN panel expressed revulsion to the ad as hateful and anti-Semitic, including using anti-Semitic tropes to enrage viewers.

Uygur defended the ad, solicited donations to keep the ad running in Michigan, and declared the segment defamatory.

The panelists do not appear to mention Uygur by name but the ad credit does refer to him. Ultimately, that is not critical anyway since you can have defamation per quod where the content is still defamatory in combination with reference to extrinsic information or evidence.

An actionable defamation case requires a false statement as to some fact that is published to a third party that causes reputational or other cognizable form of damage. This must be proven pursuant to the relevant standard of proof, discussed below.

As a threshold issue, Uygur is a public figure who must meet a higher standard for any defamation lawsuit.

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. Ironically, 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. In order to prevail, Uygur must show either actual knowledge of its falsity or a reckless disregard of the truth.

However, the greatest problem for Uygur is that the panelists are expressing their own opinions on the value and the content of the ad. It is protected speech and an exception to defamation. Declaring that the ad is anti-Semitic is not a “fact” assertions that can be litigated under common law torts.

The Supreme Court has rejected the claim that there is a categorical defense for anything claimed to be defamation.  See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). However, opinion is protected speech and routinely protected by the courts from defamation liability.

The CNN segment is armor-plated, unassailable opinon, in my view.

Ironically, it is Uygur who have been criticized for misrepresenting the factual context for the ad.

Critics have objected that the $26 billion figure actually comes from a 2024 emergency spending package and not, as suggested, a new amount. That  akes sense because the ad was recycled form Uygar’s 2024 presidential campaign.

The 2024 legislation included over $9 billion in humanitarian assistance, including relief for Palestinian civilians in Gaza and other populations. There was also roughly $7 billion set aside for American military operations in the Middle East the replenishment of American military stockpiles. There were payments of $3.5 billion in foreign military financing for Israel and $5.2 billion for missile defense systems.

The good news is that the ad itself is also political speech and opinion. Moreover, while some countries or groups have filed for group libel, they are routinely rejected. That includes dubious libel lawsuits by Israel.

Whatever viable lawsuits come out of the Michigan election, the Uygur defamation will not be one of them.