malchior wrote: ↑Wed Oct 05, 2022 12:27 pm
Kurth wrote: ↑Wed Oct 05, 2022 12:12 pmNo anti-SLAPP law, but that's not necessary. I don't see how this complaint survives a 12(b)(6) motion to dismiss. The standard is simple: Reading the complaint in a light most favorable to the plaintiff, assuming the truth of all facts alleged, have they stated a claim that is supported by the law?
Here, after reading that stupid Trump complaint, I don't even think it's a close call.
Comparing someone to Hitler and saying they are peddling a "Big Lie" are just not defamatory statements under the law. Now, Trump may be granted leave to amend, and he may come up with some factual statement about him (not an opinion) that CNN published at some point that was false, but the current complaint cannot survive as it's currently written.
This isn't a homework assignment by any means (
) but I'd love your take on Singhal's decision on motion to dismiss
here in the Dershowitz vs. CNN case. It seems like it might be substantially similar. Or maybe it's a roadmap for amended claims. It feels like this judge has a "wide" range about what a statement of fact is. I've seen several lawsplainers say this should have been a clear dismissal as well.
The Dershowitz complaint isn't strong, but it's infinitely stronger than Trump's defamation complaint.
Dershowitz alleges that CNN defamed him by quoting him out of context and making him look like an idiot. Not that he needs much help on that front, but CNN pretty much did that in covering Dershowitz' testimony to Congress during the first Trump impeachment trial. Dershowitz gave a long, rambling answer filled with ambiguous statements about quid pro quos, but the important parts were at the beginning and end of one answer.
The beginning of the answer:
"The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal."
The end of the answer:
"Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."
In its reporting on Dershowitz' testimony, CNN omitted the beginning and just played the end, followed by these specific statements by its anchors/hosts/commentators:
"Having worked on about a dozen campaigns, there is always the sense that, boy, if we win, it’s better for the country. But that doesn’t give you license to commit crimes or to do things that are unethical. So, it was absurd."
"He says if a president is running for re-election because he thinks getting elected will help America, he can do anything, anything."
"The Dershowitz Doctrine would make presidents immune from every criminal act, so long as they could plausibly claim they did it to boost their re-election effort. Campaign finance laws: out the window. Bribery statutes: gone. Extortion: no more."
Dershowitz' complaint pleads that, by publishing these three factual statements (or mixed statements of fact and opinion), CNN defamed him by stating that he testified that a president can commit illegal acts so long as the president thinks it would help his reelection. Dershowitz alleges that, in the context of his full answer, the CNN statements were factually incorrect, and he never said that a president is free to crime as he see fits so long as it helps him get reelected.
With all that background, I think the district court still should have dismissed the Dershowitz complaint. It is really weak, and CNN is going to continue to argue - successfully, I believe - that, even if its talking heads got Dershowitz' stupid, rambling quid pro quo arguments wrong, they did so based on their reasonable belief about what Dershowitz was trying to say. I think a reasonable court could have made that call based on the record before it at the motion to dismiss stage. Singhal ruled that because the record was limited and because there were many factual issues that need to be considered when figuring out the context of CNN's reporting, this weak-ass complaint should not be dismissed at the pleading stage:
In deciding a motion to dismiss, the court must accept as true the plaintiff’s well-pleaded facts and construe them in the light most favorable to the plaintiff . . . He alleges that CNN intentionally omitted the statement that a quid pro quo would be unlawful if the quo were illegal in order to “fool its viewers” into believing that Dershowitz actually said that a President could commit illegal acts so long as he thought it would help his reelection and that his reelection was in the public interest. This was done, he alleges, “to falsely paint Professor Dershowitz as a constitutional
scholar and intellectual who had lost his mind.” He alleges that CNN knew for certain that he had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act because it aired the entire statement earlier in the day, but that CNN knowingly omitted that portion when it played the truncated clip “time and again.” He alleges that the truncated clip was created “intentionally and deliberately with knowledge and malice to facilitate its ability to falsely claim that plaintiff said the opposite of what he actually said.” And, finally, Dershowitz alleges that commentators made their statements with knowledge or reckless disregard that they were false.
These allegations, for purposes of surviving the Motion to Dismiss, plausibly plead a factual basis from which “actual malice” can be inferred. The Complaint alleges that CNN knew its reports were false, it explains the reasons CNN and its employees knew the reports were false, it explains the nature of the alleged falsehoods, and it alleges who made the false statements.
If I were CNN, I also would have moved to dismiss, and I would have been reasonably optimistic that I'd win. But it's not bat-shit crazy that Singhal wanted to have a more fully developed record.
Also, it's worth noting that Singhal isn't 100% in the bag for the MAGAts: He did censure Dershowitz for including "immaterial and impertinent" allegations in his complaint regarding CNN's political animus against Trump. Singhal actually went so far as to strike portions of the Dershowitz complaint, something that's pretty much unheard of in these kinds of cases.
Look, at the end, whatever pathetic thing he's become now, Dershowitz was at one time one and in some circles of the most respected lawyers in this country. He certainly knows how to put together a complaint that's built to get past a motion to dismiss.
Trump, on the other hand, not so much. In fact, not even a little.
Setting aside CNN's arguments against Dershowitz regarding fair reporting privilege and lack of actual malice and just focussing on their argument that the statements at issue are not ones of fact, I think that exact argument should be more than enough to get Trump's complaint dismissed.
