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Virginia Attorney General Candidate Jay Jones Accused of Additional Violent Rhetoric

By: Jonathan Turley | October 7, 2025

Jay Jones, Virginia’s Democratic attorney general candidate, is under fire for shocking statements that expressed a desire to kill political opponents and their young “fascist” children. Despite the violent rhetoric, Democrats like Abigail Spanberger, the Democratic gubernatorial nominee in Virginia, have stood by Jones and continue to campaign for his election. Now, however, Jones is accused of making disturbing comments about the benefit of killing a few cops as a warning to others. It is unclear whether the alleged comments were made in writing (as were earlier comments), and Jones has denied them.

Virginia has become a testing ground for rage rhetoric as Democrats stand by Jones and refuse to call for his withdrawal. Spanberger herself was criticized recently for calling on supporters to “Let your rage fuel you.”

What is notable about this latest allegation is that it is coming from the very same legislator who discussed the prior statements, which Jones admitted were true.

According to the New York Post, Republican Del. Carrie Coyner told Virginia Scope on Monday, Jones used a 2020 discussion about qualified immunity to suggest that a few dead cops might be a good thing. She recounted how Jones allegedly said, “Well, maybe if a few of them died, that they would move on, not shooting people, not killing people.”

Jones denied the new allegations: “I did not say this. I have never believed and do not believe that any harm should come to law enforcement, period.”

It is unclear whether Coyner has proof of the new alleged statements.

Jones has not threatened a defamation lawsuit over the allegation. If untrue, the statement could constitute defamation as impugning Jones’s reputation and veracity as a public figure. However, as a public official, he is subject to the New York Times v. Sullivan standard and would have to show a knowing falsehood or reckless disregard for the truth on the part of Rep. Coyner.

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Law, Political, political violence

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Jake Tapper and CNN Lose Major Motions in Defamation Case by Navy Veteran

By: Jonathan Turley | December 9, 2024

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.”

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Law, Media, Political

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Report: The Officer Who Killed Ashli Babbitt Had a Long History of Disciplinary and Training Problems

By: Jonathan Turley | November 21, 2024

I have previously written about the dubious investigations of the shooting of Ashli Babbitt on Jan. 6th and the alleged violation of the standards for the use of lethal force by the officer who shot her. I strongly disagreed with the findings of investigations by the Capitol Police and the Justice Department in clearing Captain Michael Byrd, who shot the unarmed protester. Now, Just the News has an alarming report of the record of Byrd that only magnifies these concerns.

Liberal politicians and pundits often refer to multiple deaths from the Jan. 6th riot. In reality, only one person died that day, and that was Babbitt, who was shot while trying to climb through a window. However, the media lionized Byrd and portrayed the killing of the unarmed Babbitt as clearly justified. That is in sharp contrast to the approach that the media has taken in other shootings by law enforcement. An unjustified killing by police on that day was inconsistent with the public narrative pushed by the pundits and the press.

As I have previously written, what occurred on Jan. 6th was a disgrace. However, it was a riot, not an insurrection. (It was certainly not an act of terrorism as claimed by some Democratic politicians). A protest at the Capitol resulted in a complete breakdown of the inadequate security precautions, a failure that House Speaker Nancy Pelosi privately admitted but only recently was disclosed. The failure of Pelosi and others to properly prepare for the protest, despite the offer of President Donald Trump of 10,000 National Guard troops, does not excuse the conduct of the rioters who attacked the Capitol, interrupted the constitutional process, and committed property damage.

Babbitt was one of those rioters. She was wrong in her actions, but the penalty for breaking a window and unauthorized entry is not death in this country. I previously spoke with her mother, Micki Witthoeft, and her husband, Aaron Babbitt, about their continuing effort to expose what occurred that day.

The new report confirms what many of us had previously heard about the Byrd controversy.

Babbitt, 35, was an Air Force veteran and Trump supporter who participated in the riot three years ago. She was clearly committing criminal acts of trespass, property damage, and other offenses. However, the question is whether an officer is justified in shooting a protester when he admits that he did not see any weapon before discharging his weapon.

Just to recap what we previously discussed in the earlier column:

When protesters rushed to the House chamber, police barricaded the chamber’s doors; Capitol Police were on both sides, with officers standing directly behind Babbitt. Babbitt and others began to force their way through, and Babbitt started to climb through a broken window. That is when Byrd killed her.

At the time, some of us familiar with the rules governing police use of force raised concerns over the shooting. Those concerns were heightened by the DOJ’s bizarre review and report, which stated the governing standards but then seemed to brush them aside to clear Byrd.

The DOJ report did not read like any post-shooting review I have read as a criminal defense attorney or law professor. The DOJ statement notably does not say that the shooting was justified. Instead, it stressed that “prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so ‘willfully.’” It seemed simply to shrug and say that the DOJ did not believe it could prove “a bad purpose to disregard the law” and that “evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent.”

While the Supreme Court, in cases such as Graham v. Connor, has said that courts must consider “the facts and circumstances of each particular case,” it has emphasized that lethal force must be used only against someone who is “an immediate threat to the safety of the officers or others, and … is actively resisting arrest or attempting to evade arrest by flight.” Particularly with armed assailants, the standard governing “imminent harm” recognizes that these decisions must often be made in the most chaotic and brief encounters.

Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders. Indeed, Huntsville police officer William “Ben” Darby was convicted of killing a suicidal man holding a gun to his head. Despite being cleared by a police review board, Darby was prosecuted, found guilty, and sentenced to 25 years in prison, even though Darby said he feared for the safety of himself and fellow officers. Yet law professors and experts who have praised such prosecutions in the past have been conspicuously silent over the shooting of an unarmed woman who had officers in front of and behind her on Jan. 6.

Byrd went public soon after the Capitol Police declared that “no further action will be taken” in the case. He then demolished the two official reviews that cleared him.

Byrd described how he was “trapped” with other officers as “the chants got louder” with what “sounded like hundreds of people outside of that door.” He said he yelled for all of the protesters to stop: “I tried to wait as long as I could. I hoped and prayed no one tried to enter through those doors. But their failure to comply required me to take the appropriate action to save the lives of members of Congress and myself and my fellow officers.”

Byrd could just as well have hit the officers behind Babbitt, who was shot while struggling to squeeze through the window.

Of all of the lines from Byrd, this one stands out: “I could not fully see her hands or what was in the backpack or what the intentions are.” So, Byrd admitted he did not see a weapon or an immediate threat from Babbitt beyond her trying to enter through the window. Nevertheless, Byrd boasted, “I know that day I saved countless lives.” He ignored that Babbitt was the one person killed during the riot. (Two protesters died of natural causes and a third from an amphetamine overdose; one police officer died the next day from natural causes, and four officers have committed suicide since then.) No other officers facing similar threats shot anyone in any other part of the Capitol, even those who were attacked by rioters armed with clubs or other objects.

The new report confirms prior accounts that Byrd had prior disciplinary and training issues. According to Just the News, they included “a failed shotgun qualification test, a failed FBI background check for a weapon’s purchase, a 33-day suspension for a lost weapon and referral to Maryland state prosecutors for firing his gun at a stolen car fleeing his neighborhood.”

Given this history and the shooting of Babbitt, Rep. Barry Loudermilk, R-Ga., the chair of the House Administration Oversight Subcommittee investigation, wrote to express concern over Byrd’s promotion to captain. Those incidents included Byrd firing at a car and allegedly misrepresenting the incident in claiming that “he fired at a vehicle trying to strike him when the evidence fellow officers found at the scene indicated he shot at the vehicle after it had already passed him and no longer posed a threat.” The letter states the Office of Professional Responsibility found that the evidence did not support his claim and “OPR concluded that the evidence suggests Byrd ‘discharged his service weapon at the vans after they passed him by.’”

The concern is that the political environment — and powerful interests in Congress — demanded that Byrd be cleared. As discussed in my new book, “The Indispensable Right,” the Justice Department had publicly pledged to bring “shock and awe” in prosecuting anyone associated with the riot. Finding that the only person killed that day was an unjustified shooting would not exactly fit with the narrative.

The incidents also include allegations of improper handling of his weapon, including reports that Byrd left his service weapon in a public bathroom in the Capitol Visitor Center complex used by tourists and visitors.

The Babbitt family has continued to fight to force the facts into the open and has filed a civil case. A trial is now set for 2026.

Here is his letter detailing the disciplinary problems of Captain Byrd:

11.20.2024 Letter From Rep. Barry Loudermilk to USCP Chief of Police Manger.pdf

*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*.”

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Political

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“Something Wicked This Way Comes.”: Halloween is Starting with a Litigious Flare

By: Jonathan Turley | October 30, 2024

“Something wicked this way comes.” Those words from William Shakespeare’s “Macbeth” capture the approach of Halloween. Traced to the Celtic festival of Samhain to mark the end of the harvest, pagans would often summon the dead. Halloween today more often summons contingency lawyers by the gross. If there is a holy holiday for personal injury lawyers it is Halloween with its mix of slip-and-falls, food liability, and costume defects. After all, what can go wrong with a holiday celebrated at night with millions in ill-fitting costumes handing out tons of foodstuffs to strangers? This year, it is already producing its share of spooky torts.

In Queens, a haunted house was shut down after various people filed lawsuits over being injured. “A Haunting in Hollis” was called “a death trap” by the Fire Department, but not the fun kind. The converted two-family home was accused of such attractions as the ankle shatterer. Solainne Mancero-Tannis of Jamaica, Queens, says she was at the house with her family when she went down “Satan’s Slope.” The slide in a pitch-black space allegedly hurled her into a concrete wall at the bottom, shattering her ankles. The FDNY has since allowed the house to re-open with improvements.

Sometimes, Haunted Houses are a bit too haunted, even for the trained eye. Take the case of Sgt. Eric Janik, 37, who went to a haunted house called the House of Screams when he was confronted by a character dressed as Leatherface with a chainsaw. Janik pulled out his service weapon and pointed it at the man, who dropped character and fled the house.

This year, an employee, Anora Jenkins, was working at a haunted attraction in Tennessee when she jumped up to scare a group, and a frightened man slugged her, sending her to the hospital. AMS Haunted Attractions said that spooked customers assaulted several of its actors.

Some haunted homes can be a tad too improvisational. In Dickson v. Hustonville Haunted House and Greg Walker, Glenda Dickson, 51, broke four vertebrae in her back when she fell out of the second-story window left open at the Hustonville Haunted House. She was in a room called “The Crying Lady in the Bed” when one of the actors came up behind the group and started screaming. Dickson jumped back through an open window covered with only a sheet.

Halloween can bring out the best and worst of people, even neighbors.

A few years ago in Florida, a woman filed a defamation and emotional distress lawsuit after her neighbor set up decorations that included a fake tombstone that read, “At 48 she had no mate no date/ It’s no debate she looks 88.”

This year, another woman in Ohio took a more direct approach in Toledo. On Oct. 7, the woman went on a rampage in the front yard of the home of the Zeller family with their extensive Halloween decorations. Over half an hour, she caused roughly $1,000 in damages, including destroying cherished family items. Police arrested 48-year-old Christina Horvath, who is also accused of stealing some items. Yet, the Zellers are not literally giving up the ghost. They put up a sign reading “She Came in Like a Wreckin’ Ball” next to a skeleton riding a wrecking ball.

Each year, costumes produce a slew of jump scare lawsuits from demon eye contact lenses that can actually blind you to this year’s witch hats that can turn into flaming headwear. In New York a few years ago, Sherri Perper, 56, of Queens, New York, filed a personal injury lawsuit due to defective shoes allegedly acquired from Forum Novelties. The shoes were over-sized clown shoes that she said made her trip and fall because they were . . . well … oversized.

I admit that my house is one of those over-the-top Halloween houses. As a torts professor, I try to walk the line between a fun attraction and an attractive nuisance. Indeed, I have contemplated the ultimate jump scare of meeting children with a notary, and a waiver form covering everything from slips to nut allergies. There are simply some scenes that are too scary for the young and old alike.

So welcome to the most hallowed holiday for lawyers. Have fun but it is strictly BYOC, bring your own counsel.

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.”

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Political

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Over the Border: Gun and Torts Liability to Collide in Mexican Case Before the Supreme Court

By: Jonathan Turley | October 28, 2024

This month, there is a new case on the docket after the Supreme Court granted certiorari in Smith & Wesson Brands v. Estados Unidos Mexicanos. The First Circuit reversed a trial court that dismissed the case, alleging that the American firearms industry is legally responsible for violence in Mexico. I believe the First Circuit is dead wrong and will be reversed. However, as a torts professor, there is a question of whether the tort element of proximate cause could be materially changed in the case. Torts professors are already lining up to argue that there is a proximate cause under existing doctrines to hold the firearms industry liable. I respectfully disagree.

In the petition, Smith and Wesson and other gun manufacturers challenge the claim, including the argument that their sale of lawful firearms in the United States is the proximate or legal cause for the carnage in Mexico. They note that Mexico has long been riddled with violence and corruption connected to the extensive drug industry in that country.

In my view, the trial court dismissed the case correctly under the Protection of Lawful Commerce in Arms Act (PLCAA). That was passed to bar suits against firearms companies based on criminals using these products for criminal or intentionally tortious acts.

However, the First Circuit reversed on the ground that Mexico has made a legally cognizable case that gun manufacturers aided and abetted firearms trafficking that has harmed the Mexican government. The First Circuit is an outlier in this case and ignores both the purpose of the law and basic tort principles of proximate causation.

The Court has accepted the review on two questions:

1. Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.

2. Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

PLCAA was enacted to require dismissal at the inception of lawsuits like this, and other courts have recognized that. The First Circuit’s decision creates a circuit split.

Mexico’s complaint is wildly off base both factually and legally. It suggests that these companies are effectively funneling guns to criminal gangs in Mexico by producing products that they have used in criminal conduct.

The First Circuit adopted an analogy that destroyed the credibility of its decision:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.

Is that the best these federal judges could come up with? There is a vast difference between the United States sending a combat unit across the border and manufacturers who supply distributors who serve dealers who sell lawful products to consumers. That sounds more like The Merchandisers than The Expendables.

PLCAA specifically bars any “qualified civil liability action” against gun manufacturers and licensees. Any action filed against a federal firearms licensee for damages or other relief resulting from the criminal or unlawful misuse of a firearm is expressly addressed in the statute under § 7902 of PLCAA: “A qualified civil liability action … shall be immediately dismissed by the court in which the action was brought or is currently pending.”

Mexico and gun control advocates are focusing on an exception for any manufacturer or seller of a firearm that “knowingly violated a State or Federal statute applicable to the sale or marketing of the product [firearm], and the violation was a proximate cause of the harm for which relief is sought….”

The First Circuit found that, if proven, a case can be made that Smith & Wesson engaged in “affirmative and deliberate efforts to create and maintain an illegal market for [its] weapons in Mexico” and that, as such, it was “aiding and abetting downstream dealers in violating state and federal laws governing the transfer of firearms.” The level of speculation and conjecture in such a claim is manifestly obvious. Mexico failed to offer anything beyond conclusory claims as to “downstream” users to allege this nexus.

The exception is clearly directed at violations of gun statutes, such as falsifying records or conspiracy to sell to a specific prohibited person. Even then, it must be shown to be the proximate cause of the injury. Mexico does not maintain such a specific showing but treats sales generally as aiding and abetting the violence in that country.

Under standard tort doctrine, criminal or intentionally tortious acts by third parties generally cut off legal causation. However, there is an exception where such conduct is foreseeable. Here is the language from Second Restatement of Torts 448:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”

The Third Restatement contains the same approach while, again, recognizing that “If the third party’s misconduct is among the risks making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will be within the defendant’s scope of liability.” Restatement (Third) of Torts: Physical & Emotional Harm (2010)§ 19 cmt. c (“If the third party’s misconduct is among the risks making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will be within the defendant’s scope of liability.”).

However, these exceptions have not been extended to the extent envisioned by Mexico or the First Circuit. For example, in the famous case of Brower v. New York Central & Hudson River Railroad, 91 N.J.L. 190 (1918), a train negligently struck a wagon carrying cider and knocked the driver senseless. The railroad personnel left his goods unprotected and they were stolen. The court ruled:

“The negligence which caused the collision resulted immediately in such a condition of the driver of the wagon that he was no longer able to protect his employer’s property; the natural and probable result of his enforced abandonment of it in the street of a large city was its disappearance; and the wrongdoer cannot escape making reparation for the loss caused by depriving the plaintiff of the protection which the presence of the driver in his right senses would have afforded.”

Simply selling a lawful product falls significantly short of this type of nexus. It would be akin to holding train manufacturers liable for the negligent operation of the train engineer in Brower in aiding and abetting such conduct by third persons.

It is hard to see how the Court could find that these companies were “the” proximate cause of the harm without creating a federal standard for proximate cause that would extend foreseeability beyond any recognition. There are powerful superseding intervening forces in play in Mexico. To embrace this theory that the manufacturers knowingly and foreseeably increased the risk of violence in Mexico would allow torts to effectively gut the industry and existing federal law.

Previously, gun control advocates tried to use product liability and nuisance laws to curtail gun sales. Those cases failed as over-extending tort doctrine to achieve indirectly the courts what could not be achieved directly in the legislatures. Conversely, Congress passed PLCAA to prevent such circumvention of the legislative process.

There are good-faith arguments to be made that the exception for criminal conduct can be maintained where there is sufficient foreseeability and that the First Circuit was merely allowing Mexico to prove its case. However, the complaint is manifestly insufficient for such a claim.

There is no specific evidence that would establish the required showing of knowledge or foreseeability by manufacturers in working with Mexican drug gangs. Mexico has been rife with drug cartels and corruption for decades. Much of this violence has occurred with the cooperation and collusion of Mexican officials, including law enforcement officials.

In my view, the First Circuit should and will be reversed.

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Crime, Law, Political

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Deadspin Loses Major Motion in Defamation Case Over Blackface Column

By: Jonathan Turley | October 9, 2024

We previously discussed the defamation lawsuit against Deadspin and writer Carron Phillips over an article claiming that nine-year-old Holden Armenta appeared at a Chiefs game in 2023 in black face. I noted in a prior column that I believed that the court would view this as a matter that had to go to a jury. It now has. Superior Court Judge Sean Lugg this week rejected Deadspin’s motion to dismiss.

Phillips posted a side image of Holden at a game of the Kansas City Chiefs against the Las Vegas Raiders, showing his face painted black. The 9-year-old was wearing a headdress while doing the signature “Tomahawk Chop.”

Phillips went into full attack mode.

The senior Deadspin writer had a Pavlovian response in a scathing article on the boy’s “racist” and “disrespectful” appearance.

“It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate black people and the native Americans at the same time…Despite their age, who taught that person that what they were wearing was appropriate?”

Phillips also denounced the NFL for “relentlessly participating in prejudice.” In a now-deleted tweet, Phillips later called people “idiots” for “treating this as some harmless act.”

Of course, the full picture showed that Armenta had the other half of his face painted in red paint — the Chiefs colors. It also turns out that he is Native American. Indeed, his grandfather is serving on the Santa Ynez Band of Chumash Indians.

Deadspin obviously valued Phillips’ take on race as do other journalists and columnists. Despite his past controversial writings, he was selected as the 2019 & 2020 National Association of Black Journalists Award Winner.

Deadspin was sold to Lineup Publishing after the lawsuit by Holden’s parents Raul Jr. and Shannon. However, they appear to have retained Phillips who is still on their website.

In Armenta v. G/O Media, Inc. Lugg wrote that “[h]aving reviewed the complaint, the court concludes that Deadspin’s statements accusing [Holden] of wearing black face and Native headdress ‘to hate black people and the Native American at the same time,’ and that he was taught this hatred by his parents, are provable false assertions of fact and are therefore actionable.”

The opinion turned on whether this could be treated as opinion as opposed to a statement of fact. California law applied in the case and the court focused on two opinions that held that claims of racism can be statements of fact. Lugg wrote:

Generally, statements labeling a person as racist are not actionable. “A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact.”…

Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {“Blackface is used to mock or ridicule Black people; it is considered deeply offensive.” Deadspin, in recasting Black face as “culturally insensitive face paint” in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an assertion of an objective, defamatory fact. Two recent decisions applying California law, Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010) and La Liberte v. Reid (2d Cir. 2020), assist in clarifying this distinction.

The Court in Overhill Farms held that “a claim of racially motivated employment termination is a provably false fact.” In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse against Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees’ motion, reasoning:

[D]efendants did not merely accuse [their employer] of being “racist” in some abstract sense …. [I]n almost every instance, defendants’ characterization of [their employer] as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer’s] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants’ written press release, leaflets and flyers accused Overhill of more than harboring racist attitudes; they accused Overhill of engaging in a mass employment termination based upon racist and ageist motivations. Such a contention is clearly a “provable fact;” indeed an employer’s motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.

In La Liberte v. Reid, a community activist brought suit after a television host republished two photographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming “You are going to be first deported … dirty Mexican!” at a 14-year-old boy. The second caption compared a photograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television host moved to dismiss the activist’s defamation claims, arguing that her statements were “nonactionable statements of opinion.” The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:

A reader could interpret the juxtaposition of the Photograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant’s] comment that “[h]istory sometimes repeats.” That interpretation is bolstered by [defendant’s] description of the white woman in the Little Rock photograph as a “person screaming at a child, with [her] face twisted in rage” and [her] comment that it was “inevitable” that the photos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 who verbally assaulted a minority child. Like the defendants in Overhill Farms, [defendant] “did not merely accuse [plaintiff] of being ‘racist’ in some abstract sense.” Rather, her July 1 Post could be understood as an “accusation of concrete, wrongful conduct,” which can be proved to be either true or false. That makes it potentially defamatory.

The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court should be guided by Overhill Farms and La Liberte. These statements include:

(1) H.A. was wearing “Black face;”

(2) H.A.’s conduct in wearing “Black face” was motivated by his hatred of Black people;

(3) H.A.’s wearing of a Native headdress resulted from his hatred of Native Americans;

(4) H.A. is part of a “future generation[ ]” of racists who had “recreate[d] racism better than before”; and

(5) Raul and Shannon Armenta “taught” their son, H.A., “racism and hate” in their home.

Deadspin’s audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.’s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.’s motivation for appearing as he did.

Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the thrust of these representations is resolved in the opening line of the article, where the author unequivocally asserts, “It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time.”

While arguably couched as opinion, the author devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating those who may have taught him—his parents. A reader might not, as Deadspin contends, interpret this assertion as a reflection of the author’s opinion. To say one is a racist may be considered opinion, but to plainly state that one’s attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article’s assertion that H.A. was wearing Black face as fact….

The CBS broadcast showed H.A. for approximately three seconds. In those three seconds, viewers could see that H.A.’s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual assertion that there was a “Chiefs fan in Black face” at the game. The complaint asserts facts that, reasonably interpreted, establish Deadspin’s Original Article and its Updates as provably false assertions of fact….

Deadspin contends that La Liberte and Overhill Farms stand as outliers from decisions recognizing that accusations of racist behavior are “inherently subjective and therefore non-actionable[.]” Not so. They reflect reasoned assessments of the lines between protected and actionable speech and offer a paradigm for identifying and assessing provably false allegations of racial animus. This Court may grant Deadspin’s motion under Rule 12(b)(6) only if “under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.” Applying the analytical framework of La Liberte and Overhill Farms to the facts here, the Armentas maintain a “possibility of recovery.” …

This is a well-constructed and well-supported decision that could have lasting importance. In an age of rage, including race-baiting columns like the one in this case, the opinion is a shot across the bow for publications like Deadspin.

We have seen a series of major rulings allowing public figures to go forward in other defamation lawsuits against media companies. In addition to alienating much of their markets with echo journalism, these outlets are now facing mounting legal costs due to attack pieces like this one. The bill is now coming due.

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.”

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Court Refuses to Throw Out the Defamation Lawsuit Against MSNBC Legal Analyst Andrew Weissmann

By: Jonathan Turley | October 2, 2024

We previously discussed the defamation case against NYU Law Professor and MSNBC legal analyst Andrew Weissmann. He is being sued by lawyer Stefan Passantino after Weissmann said that he coached former Trump White House aide Cassidy Hutchinson to “lie” to Congress. At the time, I wrote that “it is hard to see how Weissmann can avoid a trial.” U.S. District Judge Loren AliKhan apparently agrees. She just rejected Weissmann’s motion to dismiss the case.

The controversial former aide to Special Counsel Robert Mueller (and NYU law professor) is being sued after declaring that attorney Stefan Passantino (who represented Hutchinson before Congress) told her to lie.

Weissmann’s controversial commentary was not a surprise to many critics.

Many of us questioned Mueller hiring Weissmann given his reputation for stretching legal authority and perceived political bias. Weissmann reportedly congratulated acting Attorney General Sally Yates after she ordered the Justice Department not to assist President Donald Trump on his immigration ban. The Supreme Court would ultimately affirm Trump’s underlying authority, but Yates refused to allow the Justice Department to assist a sitting president in defending that authority. Weissmann gushed in an email to her, writing “I am so proud. And in awe. Thank you so much.”

As noted earlier, Weissmann seemed to respond to those criticisms by aggressively proving them true. Weissmann has only become more controversial as an MSNBC analyst. He called on Justice Department officials to refuse to assist in the investigation of abuses in the Russian collusion investigation. While opposing investigations involving Democrats, he has seemingly supported every possible charge against Trump or his associates.

What Weissmann often lacked in precedent, he made up for in hyperbole. That signature is at the heart of the current lawsuit. On September 13, 2023, Weissmann was referring to Judy Hunt and noted on Twitter (now X) that “Hunt also is Cassidy Hutchinson’s good lawyer. (Not the one who coached her to lie).”

In making this claim against Passantino, Weissmann actually triggered the “per se” defamation standard twice. These are categories that have been treated as defamatory per se. The allegation against Passantino would not only constitute criminal conduct but also unethical professional conduct. Passantino denounces the statement as an “insidious lie” and “smear.”

AliKahn noted that “At her fifth deposition, Ms. Hutchinson discussed a line of questioning from her first deposition about the January 6 incident in the Presidential limousine,” AliKhan wrote. “She explained that, during a break after facing repeated questions on the topic, she had told Mr. Passantino in private, ‘I’m f*****. I just lied.’ Mr. Passantino responded, ‘You didn’t lie. . . . They don’t know what you know, Cassidy. They don’t know that you can recall some of these things. So, you [sic] saying ‘I don’t recall’ is an entirely acceptable response to this.’”

Hutchinson repeatedly confirmed that Passantino “never told me to lie,” “didn’t tell me to lie,” and “He told me not to lie.”

While Judge AliKhan on Monday tossed out the second count in the complaint as lacking foundation for the claim of financial harm, she refused to dismiss Passantino’s defamation claim and moved the case forward toward trial. That could prove embarrassing as Passantino’s team searches for evidence of malice in his emails and other communications.

Here is the opinion: Passantino v. Weissmann

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.”

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California Sued Over New “Deepfake” Law

By: Jonathan Turley | September 24, 2024

California has triggered the first lawsuit over its controversial new laws that require social media companies to censor fake images created by artificial intelligence, known as deepfakes as well as barring the posting of images. A video creator is suing the State of California after his use of a parody of Vice President Kamala Harris was banned. The law raises serious and novel constitutional questions under the First Amendment.

Gov. Gavin Newsom signed A.B. 2839, expanding the time period that bars the knowing posting of deceptive AI-generated or manipulated content about the election. He also signed A.B. 2655, requiring social media companies to remove or label deceptive or digitally altered AI-generated content within 72 hours of a complaint. A third bill, A.B. 2355, requires election advertisements to disclose whether they use AI-generated or manipulated content.

The American Civil Liberties Union of California, Foundation for Individual Rights and Expression (FIRE), the California News Publishers Association and the California Broadcasters Association opposed the legislation on first amendment grounds.

Elon Musk recently reposted the image of Christopher Kohls, who he defended as fighting for that “absolute Constitutional right to lampoon politicians he believes should not be elected.”

Kohls objected that the new law requires a new font size for the labeling that would fill up the entire screen of his video.

In the complaint below, Kohls noted “[w]hile the obviously far-fetched and over-the-top content of the video make its satirical nature clear, Plaintiff entitled the video ‘Kamala Harris Campaign Ad PARODY.’”

AB 2389 covers “deepfakes,” when “[a] candidate for any federal, state, or local elected office in California portrayed as doing or saying something that the candidate did not do or say if the content is reasonably likely to harm the reputation or electoral prospects of a candidate.”

The exceptions for satire, parody, and news reporting only apply when they are accompanied by a disclaimer. The law is vague and could be used to cover a wide array of political speech. It is not clear what defines satire or parody under the exception. Likewise, “materially deceptive content,” is defined as “audio or visual media that is digitally created or modified, and that includes, but is not limited to, deepfakes and the output of chatbots, such that it would falsely appear to a reasonable person to be an authentic record of the content depicted in the media.”

The Kohls complaint argues that the law flips the burden to creators to establish a defense.

One of the more interesting legal issues is how the law defines “malice.” The legislators lifted the definition from New York Times v. Sullivan on defamation to define the element as the statute requires “malice.” This term does not require any particular ill-intent, but instead applies a definition of “knowing the materially deceptive content was false or with a reckless disregard for the truth.”

That is the long-standing standard for public officials and public figures subject to the higher standard of defamation. However, it is not clear that it will suffice for a law with potential criminal liability and a law with sweeping limits on political speech.

Opinion and satire are generally exempted from defamation actions. Satire can sometimes be litigated as a matter of “false light,” but the standard can become blurred. The intent is clearly to create a false impression of the speaker in making fun of a figure like Harris. Drawing lines between honest and malicious satire is often difficult. Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.

For example, in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.

In 1967, the Supreme Court handed down Time, Inc. v. Hill, which held that a family suing Life Magazine for false light must shoulder the burden of the actual malice standard under New York Times v. Sullivan. Justice William Brennan wrote that the majority opinion held that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.”

This line is equally difficult under the tort’s standard for the commercial appropriation of use or likeness.

Parody and satire can constitute appropriation of names or likenesses (called the right to publicity). The courts, including the Ninth Circuit, have made a distinctly unfunny mess of such cases. Past tort cases generally have favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling in which Vanna White successfully sued over the use of a robot with a blonde wig turning cards as the appropriation of her name or likeness. It appears no blonde being — robotic or human — may turn cards on a fake game show.

There is also the interesting question of when disclaimers (which are often upheld) ruin the creative message. The complaint argues:

“Disclaimers tend to spoil the joke and initialize the audience. This is why Kohls chooses to announce his parody videos from the title, allowing the entire real estate of the video itself to resemble the sorts of political ads he lampoons. The humor comes from the juxtaposition of over-the-top statements by the AI generated ‘narrator,’ contrasted with the seemingly earnest style of the video as if it were a genuine campaign ad.”

The complaint below has eight counts from (facial and applied) challenges under the First Amendment to due process claims under the Fourteenth Amendment.

Here is the complaint: Kohls v. Bonta

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CNN Loses Another Motion in Defamation Case as Court Orders Tapper to Appear

By: Jonathan Turley | August 16, 2024

We previously discussed the defamation lawsuit against CNN and the curious effort to use Taliban law to dismiss the lawsuit by Navy veteran Zachary Young. The litigation has not been going well for the network and it just lost another key motion to block an effort to depose Jake Tapper. Worse yet, the court appears to have questioned the veracity of the host in a sworn deposition on his lack of knowledge over the financial subject matter of the deposition.

CNN recently lost a recent major ruling when the court found that there was evidence of malice by CNN to support the higher standard needed for defamation. The evidence in the case is remarkably bad for the network after discovery of internal memoranda and emails.

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 the example of that startling claim.

The damages in the case could be massive but Young had to satisfy the higher New York Times v. Sullivan standard of “actual malice” with a showing of knowing falsehood or a reckless disregard of the truth. Judge Roberts 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 case now appears to have moved into a second discovery period over CNN’s finances. The plaintiff’s counsel wants to depose Tapper. I can certainly understand Tapper’s counsel in trying to block the deposition on finances. I am not sure how much Tapper would know about the finances, but the court clearly did not take well to his declaration.

NewsBusters previously reported, CNN had filed a motion for a protective order in which CNN counsel Allison Lovelady insisted that the Plaintiff only wanted a deposition so they could use it to “harass CNN and Mr. Tapper.” However, the court shot down the effort and reportedly stated “I kind of have a hard time believing what Mr. Tapper put in that declaration.” Since that is a sworn declaration made under penalty of perjury, it was a stinging rebuke.

Unlike the earlier depositions, this stage is confined to finances and possible penalties. The defense team clearly believes the deposition is an effort to re-open fact deposition testimony that should be now foreclosed. There is always a risk to any witness from the added exposure to renewed questioning. However, it is hard to get a protective order on conclusory assurances of no relevant knowledge. The court clearly believes that Tapper could have some relevant information since he holds one of the most lucrative contracts at CNN and is familiar with the corporate finances in relation to his show.

Tapper’s counsel also attempted other “Hail Mary” motions seeking to delay any deposition until rulings on other cases dealing with punitive damages. CNN lost a critical motion in seeking to bar punitive damages. That is, of course, the big-ticket item for the network in this type of case. To limit Young to compensatory damages would make any damages manageable for the company, even if a verdict would damage its reputation.

In one tense exchange, the counsel argued over a motion to force Young to appear personally for settlement discussions. His counsel explained that it was difficult for him because of an injury he sustained while in the Navy, which made it difficult to sit for long periods. CNN’s lead counsel Deanna K. Shullman shot back “So do I, your Honor!” “I have to leave the State of Florida to get to Bay County. CNN has to travel from the state of Georgia.” CNN prevailed on that and one other motion on an extension of time. CNN is trying to delay the January trial date, but Young’s counsel has indicated that it wants to stick with that date and has little interest in settlement.

Tapper, however, will now have to appear on the financial questions in the ongoing litigation.

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“Illegal Under Taliban Law”: CNN Seeks Summary Judgment Under a Curious Claim in Defamation Case

By: Jonathan Turley | August 6, 2024

CNN has been fighting a defamation case brought after a segment by Jake Tapper that accused Zachary Young and his company Nemex Enterprises Inc. of preying on people seeking to flee Afghanistan, even suggesting that he was a type of human trafficker. CNN’s new motion for summary judgment raised eyebrows in citing Sharia law to say that what Young was doing in rescuing people was unlawful under Islamic restrictions.

CNN recently lost a recent major ruling from Judge L. Clayton Roberts in which he found that there was evidence of malice by CNN to support the higher standard needed for defamation. The evidence in the case is remarkably bad for the network after discovery of internal memoranda and emails.

The report at the heart of the case aired on 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.”

In this case, Young was able to respond in the short time and Marquardt messaged a colleague, “f__king Young just texted.”

After losing the earlier motion on malice, CNN’s lead counsel Deanna K. Shullman surprised many in the motion of summary judgment by turning to Sharia law in defense of CNN. She argued that

“this entire defamation case centers on Young’s accusation that CNN implied he engaged in illegal conduct when he arranged, for a substantial fee, to have women smuggled out of Afghanistan…[D]iscovery has indicated that those activities he orchestrated and funded, which involved moving women out of Afghanistan, almost certainly were illegal under Taliban rule.”

Young’s counsel objected and noted that the allegations were never that “what Young and other private operators were doing was illegal under Taliban law.”

It is hard to see how CNN would prevail on this summary judgment motion. At most, this would seem a question that requires a finding of fact from a jury. I would be surprised if jurors agree with CNN that the outrage expressed by the network was based on the violation of the draconian, oppressive laws of the Taliban. Those were the very laws that these people were desperately trying to escape.

The case could not come at a worse time for CNN which has been struggling with low ratings, layoffs, and failing revenue.

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NBC Loses Major Motion in Defamation Trial by Doctor Called the “Uterus Collector”

BY: Jonathan Turley | July 11, 2024

NBCUniversal lost a major motion in the defamation lawsuit brought by Plaintiff Dr. Mahendra Amin, an obstetrician gynecologist who was accused by MSNBC hosts, including Rachel Maddow and Nicolle Wallace, of performing unnecessary hysterectomies at an Immigration and Customs Enforcement (ICE) center. The case will now go forward to trial on the claim that Maddow and Wallace made “verifiably false” statements on air.

Defamation lawsuits are fairly common for major media, including like the recent settlements of Fox with Dominion and NBC and various outlets with high school student Nicholas Sandmann.

The Supreme Court has given the press added “breathing room” with the higher standard of proof found in cases such as New York Times v. Sullivan. Under that standard, a plaintiff must show that a statement was knowingly false or published with reckless disregard of the truth. The complaint alleges that NBC reporters Jacob Soboroff and Julia Ainsley developed the story on whistleblower’s claims despite initial skepticism from the network’s standards department.

MSNBC quickly followed with a series of on-air reports in which the doctor was often referred to as the “uterus collector.” The story was based on allegations by “a former nurse at the facility named Dawn Wooten.” Wooten is quoted extensively in the opinion:

We’ve questioned among ourselves like goodness he’s taking everybody’s stuff out …. That’s his specialty, he’s the uterus collector. I know that’s ugly … is he collecting these things or something[?] … Everybody he sees, he’s taking all their uteruses out or he’s taken their tubes out.

Despite misgivings about Wooten’s credibility, MSNBC went forward with stories that portrayed Dr. Amin as a virtual Dr. Mengele. Critics charged that the story was irresistible for the channel in bringing together reproductive health issues, immigration, and social equity issues. Whatever the reason, hosts and executives set aside their doubts and ran stories that made Dr. Amin an infamous figure throughout the country.

Judge Lisa Godbey Wood (S.D. Ga.) found that the stories were false in claiming that Dr. Amin performed “hysterectomies that were unnecessary, unauthorized, or even botched.” She also found that MSNBC may have published the reports knowing that the allegations were false or with reckless disregard of the truth.

In granting summary judgment in favor of Dr. Amin, Judge Wood wrote:

Multiple statements are verifiably false. The undisputed evidence has established that: (1) there were no mass hysterectomies or high numbers of hysterectomies at the facility; (2) Dr. Amin performed only two hysterectomies on female detainees from the ICDC; and (3) Dr. Amin is not a “uterus collector.” The Court must look to each of the statements in the context of the entire broadcast or social media post to assess the construction placed upon it by the average viewer. Doing so, the undisputed evidence establishes that multiple NBC statements are false.

The Court emphasized that “it does not matter that NBC did not make these accusations directly, but only republished the whistleblower letter’s allegations. If accusations against a plaintiff are “based entirely on hearsay,” “[t]he fact that the charges made were based upon hearsay in no manner relieves the defendant of liability. Charges based upon hearsay are the equivalent in law to direct charges.”

That can be a chilling standard for the media, which often reports on the fact of allegations that are newsworthy. However, Judge Wood said that NBC went well beyond such a role in this case:

…the focus of these three broadcasts was not on unnecessary or unconsented-to “medical procedures.” The focus was on “mass hysterectomies” and “high numbers of hysterectomies,” performed without necessity and consent, at the facility. This is reinforced by MSNBC’s own headlines: “WHISTLEBLOWER: HIGH NUMBER OF HYSTERECTOMIES AT ICE DETENTION CTR.” and “COMPLAINT: MASS HYSTERECTOMIES PERFORMED ON WOMEN AT ICE FACILITY.”

The court noted that “[w]hile opinions and hyperbole are typically non-actionable, they become actionable when they are capable of being proved false.” That includes MSNBC referring to Dr. Amin as someone known to be a “uterus collector” and “taking everybody’s stuff out” state facts that can be proved false. Judge Wood held that “[t]hese statements are not mere subjective assessments of Plaintiff over which reasonable minds could differ. They are also not simply rhetorical hyperbole or obviously exaggerated statements that are unprovable…”

Under Georgia law, the court held that this met the “actual malice” standard. What makes the case particularly damaging is the use of MSNBC’s own hosts, lawyers, and fact-checkers to show knowingly false or reckless publication:

Plaintiff has presented evidence that NBC’s statements were inherently implausible. The allegations that there were “mass hysterectomies,” Plaintiff was a “uterus collector” or collected uteri, Plaintiff performed hysterectomies “for which no medical indication existed,” and that Plaintiff performed hysterectomies on all or nearly all his patients are so implausible that a jury could infer actual malice. The implausibility of these statements is clear, given that NBC found evidence of only two hysterectomies. NBC’s investigation did not yield evidence of more than two hysterectomies. Wooten told NBC she did not know how many women had had hysterectomies.

An attorney source, Sarah Owings, told NBC that her team was not finding evidence of mass hysterectomies. Another attorney source, Ben Osorio, told NBC that one client had had a hysterectomy that medical records revealed was medically necessary and another client believed she had had a hysterectomy, but no evidence supported this claim. NBC’s own reporter, Julia Ainsley, reinforced these facts when she texted her colleague: “But only two hysterectomies?” The attorney who told NBC that there were more than two hysterectomies, Andrew Free, also told NBC that those reports had not been confirmed and were still being vetted. Free even explicitly told NBC that he could confirm only one hysterectomy.

Nevertheless, NBC published statements that Plaintiff performed mass hysterectomies. Although NBC’s own sources told it that there was evidence of only one hysterectomy, NBC stated as fact: “five different women … had a hysterectomy done”; “as many as 15 immigrant women were given full or partial hysterectomies”; and “[e]verybody this doctor sees has a hysterectomy, just about everybody.” These statements contradict information known to NBC at the time of reporting. The same applies to the accusations that Plaintiff was a “uterus collector” or that detainees referred to him as such. Aside from Wooten’s allegation, NBC lacked any evidence that could support the accusation that Plaintiff collected uteri or was known as the “uterus collector” at the ICDC. A jury could conclude that NBC knew these allegations were false.

Plaintiff has presented evidence that there were obvious reasons to doubt Wooten’s reliability, credibility, and accuracy. In her interview with NBC, Wooten could not name Plaintiff, did not know what happened when detainees visited Plaintiff, and did not know how many women had received gynecological procedures, even acknowledged this herself. Wooten could not provide a number for how many women she had spoken to about gynecological care at the facility. She told NBC that she had spoken to “several women” in the eight years she worked at the ICDC. In essence, Wooten could provide only hearsay evidence to support her allegations. NBC’s reporter, Jacob Soboroff, texted his colleague that one source had “heard mixed things about Wooten.” NBC’s deputy head of Standards was critical of Wooten because she “provide[d] no evidence to back up her claims,” had “no direct knowledge of what she’s claiming,” and she could not “name the doctor involved.”

MSNBC’s hosts also voiced concerns over Wooten’s reliability. Rachel Maddow believed Wooten’s whistleblower letter jumped to conclusions and “didn’t want to assume it’s true.” Chris Hayes also criticized Wooten’s letter because it was based on secondhand information and Wooten had “no factual, firsthand knowledge.” Not only did NBC have reasons to doubt Wooten, but NBC actually doubted her.

…

Here, there is evidence of just that. The deputy head of NBC’s Standards, Chris Scholl, said that the whistleblower letter “boils down to a single source—with an agenda—telling us things we have no basis to believe are true.” He also later said that Wooten “has a beef” and “a whole separate agenda.” As detailed above, Scholl interspersed these observations of Wooten’s bias with doubts about the truth of Wooten’s story. While only a jury can determine whether Wooten was a credible or believable source, Plaintiff has submitted sufficient evidence that would enable a jury to find that she was not….

The court also details how top executives ran the story despite their own reservations.

Chris Scholl approved the initial news article written by Ainsley and Soboroff. He also worked on MSNBC’s broadcasts of the statements. As detailed above, Scholl expressed concerns over the veracity of the statements. He pointed out the lack of evidence to support the accusations, doubted Wooten as a credible source, and said that NBC had been unable to verify the accusations. Scholl even explicitly stated: “We don’t know the truth.” A jury could determine that Scholl expressed serious doubts.

Judge Wood notes that Maddow “is responsible for the content of her show,” but ran the story despite expressing the fact that she had “serious doubt” about the account of the whistleblower.

She also noted that Hayes said that the story went viral because it recalled Nazi Germany or the Jim Crow South, but, in reality, that was “not the case here.”

While the court acknowledges that NBC could well convince a jury at trial, he held:

Plaintiff has presented sufficient evidence that could enable a jury to find actual malice. A jury could also conclude that NBC did not act with actual malice given the evidence that it published opposing information. This duel of conflicting evidence must be resolved by a jury….

The case is Amin v. NBCUniversal Media, LLC.

N.B.: For full disclosure, while I worked twice for NBC/MSNBC, I now work as a legal analyst for Fox Corp.

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Berkeley Students Disrupt Dinner at Law Dean’s Home; Accuse Law Professor of Assault

BY: JonathanTurley.org | April 11, 2024

UC Berkeley’s law school dean, Erwin Chemerinsky, and his wife, law professor Catherine Fisk, faced a bizarre scene this week when third-year students invited into their home for a dinner held a disruptive protest and refused to leave. The students accused Fisk of assault after she tried to pull a microphone from the hands of Malak Afaneh, leader of Berkeley Law Students for Justice in Palestine.

Afaneh has been featured by Berkeley on its website discussing how “As a proud Muslim immigrant, a first gen, low income student, and a survivor, I know exactly what it feels like to not have anyone in your corner.” She added:

“As leaders at Berkeley Law, we have the privilege of being in spaces where we can gain access surrounding the U.S. legal system, information that is gatekept and withheld from the very communities that often need it the most.”

It appears that one of those privileged spaces was the Dean’s home. Chemerinsky was warned that protests might be held at his home. Moreover, flyers appeared around campus opposing the dinners. Chemerinsky discussed this threat in a statement to the school:

“The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.”

The Berkeley Law Students for Justice in Palestine depicted Dean Chemerinsky in a cartoon with a bloody knife and fork, which were denounced as anti-Semitic and raised images of the ancient blood libel against Jews.

Others attacks Chemerinsky as effectively a Zionist operative.

Once at the dinner, Afaneh and others began their protest. She started by saying “as-salamu alaykum” — or peace and blessings to you — when Fisk took hold of her and tried to take away her microphone.

Fisk teaches civil rights and civil liberties at Berkeley.

An Instagram post by the two student groups said that Fisk was guilty of “violently assaulting” Afaneh. In the video, there is physical contact but it is not violent. It is reminiscent of the recent controversy involving Tulane Professor and former CNN CEO Walter Issacson who was accused of assault in pushing a disruptive protester out of an event.

There are already petitions to seek punishment for the “assault.” One petition states:

“On the last day of Ramadan, UC Berkeley Law Professor Catherine Fisk, and Dean Chemerinsky’s wife, assaulted a Palestinian Muslim hijabi law student that was exercising her First Amendment rights to draw attention to UC complicity in the genocide of the Palestinian people. Fisk and Chemerinsky would rather resort to violently assaulting one of their students than face the truth of their support for genocide.”

The suggestion is that you have a First Amendment right to enter a private residence, stage a loud protest, refuse to leave, and prevent others from associating.

Technically there was physical contact but no police complaint has been filed. Even under torts, there is a notion of molliter manus imposuit or “he gently laid hands upon.” The doctrine is used as a defense for using limited, reasonable force to keep the peace or respond to trespass to land or chattel.

Both Fisk and Chemerinsky can be heard saying that this is their home and that the protest must stop. Eventually, Afaneh and ten other students left the dinner.

In a statement Wednesday, Chemerinsky wrote that

“The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.”

The problem is that these students have been told for years that deplatforming and disrupting events are forms of free speech. This has been an issue of contention with some academics who believe that free speech includes the right to silence others. Student newspapers have declared opposing speech to be outside of the protections of free speech. Academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech. CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech. (Bilek later cancelled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students). Berkeley has lost cases in court over its failure to protect free speech.

Many faculty and deans remained quiet for years as conservatives, libertarians, and dissenters were cancelled on campus or deplatformed. It is only recently that some have become openly alarmed over the anti-free speech movement that they have fostered either directly or through their silence. In this case, the students felt justified to stop a dinner event in a private home. They also showed little fear that they would face any repercussions for their actions.

Ironically, I raise this very hypothetical in my torts classes each year. I also invite my students to my house for dinners. When we get to trespass, I present the hypothetical of what would occur if some of them refused to leave and what my options might be. The Chemerinsky home just became that very hypothetical.

For many of us, the lack of civility and respect by the students is disturbing but hardly surprising. There are many students who feel enabled for years by administrators and faculty at schools like Berkeley.

Dean Chemerinsky can be criticized for fueling this rage by denouncing conservative justices as “partisan hacks” simply because he disagrees with their jurisprudential views. Nevertheless, Chemerinsky has had a long and widely respected career as a scholar and administrator.

Clearly, neither Chemerinsky nor Professor Fisk deserved this disruption or the lack of respect. They refused to yield to the threats over this dinner and I respect them for that. Chemerinsky has tried to navigate the tensions on campus while supporting free speech rights. Chemerinsky and Fisk open their home to hold these dinners and most students clearly value and respect their gracious hospitality.

I also would not fault the Dean for declining to pursue discipline over the incident since this occurred in a private residence. However, I take a harsher view of disruptions of classes and public events. The protesters can demonstrate outside of a room or a hall to express their opposition to a speaker. What they cannot do is prevent others from speaking or hearing opposing views. Those responsible for such disruptions should be suspended or, for repeat offenders, expelled.

Regrettably, the scene that unfolded at the home of Dean Chemerinsky will be viewed by many as a triumph rather than an embarrassment for their cause. Disruption has become the touchstone of protests in higher education. At the same time, schools like UCLA have paid “activists-in-residence” or now bestow degrees in activism.

We now have a culture of disruption that has been consistently fostered by academics and administrators on our campuses. When asked “why the home of a dean?”, these students would likely shrug and answer “why not?”

In that sense, this is the ultimate example of the chickens literally coming home to roost. These students have been enabled for years into believing that such acts of disruption are commendable and that others must yield in the cancellation of events. For weeks, they demanded that these dinners be halted despite other students wanting to attend. In that sense, the appearance in an actual home is alarming, but hardly unexpected in our current environment.

For students such as Afaneh, it is just part of “the privilege of being in spaces” to continue one’s activism.

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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.”

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*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*.”