CNN may still be enjoying its courtroom victory last month saving White House correspondent Jim Acosta's press pass, but as far as the First Amendment goes, the television news network better be ready to play some defense. That's because on Friday, CNN suffered a bruising loss in an important appeal that will at the very least make it easier to sue the media in federal court in a handful of states including Georgia, where CNN is headquartered.
The appeal arises from a series of reports in June 2015 on the infant mortality rate for open-heart surgery at West Palm Beach, Florida-based St. Mary's Medical Center. That series, showcased on Anderson Cooper's show, asserted that St. Mary's "death rate" was three times the national average — prompting defamation lawsuits, including from David Carbone, formerly the chief executive at the hospital until he was forced to resign upon CNN's report. Carbone alleges that CNN made an unfair comparison to hospitals that did both open-heart and closed-heart surgeries, and that a more proper comparison would be adjusted for risk.
CNN contends that Carbone can't meet the "of and concerning" standard of a defamation suit because the report didn't mention him by name, and further argues that an academic disagreement about methodology can't support a defamation claim and that its chosen methodology comparing mortality rates constitutes non-actionable opinion.
However, the specific arguments for the deficiency of Carbone's claims have taken a back seat to the standard by which a Georgia federal judge had to decide whether the case should move past an initial dismissal motion.
Like many states, Georgia has aimed to deter frivolous litigation implicating First Amendment activity by passing an anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. Under this law, a plaintiff like Carbone is limited in pursuing discovery and a defendant like CNN saves the costly burden of defending — and possibly settling — litigation unless the legal claims show a "probability" of prevailing.
By federal rules, though, plaintiffs merely need to demonstrate the "plausibility" of a complaint on its face in order to advance in lawsuits.
The contrast between probability and plausibility (and rules governing cases in state and federal court) thus amounts to a significantly different evidentiary burden for plaintiffs at the get-go. What happens when because of the diversity of citizenship for the parties, lawsuits raising state-based claims are tried in federal court? Other media companies, fearful of having a tougher time getting out of nuisance lawsuits, supported CNN in amicus briefs arguing that Georgia's anti-SLAPP law should apply. But the benefits of SLAPP deterrence aren't just for media companies. For example, President Donald Trump recently used Texas' anti-SLAPP law to defeat the defamation lawsuit brought by Stormy Daniels, and while Trump has often advocated for looser libel laws, he certainly enjoyed and boasted about the nearly $300,000 in legal fees that Daniels was ordered to pay in the case. Fee-shifting is another common component of state anti-SLAPP laws.
On Friday, Eleventh Circuit Judge William Pryor provided an answer to the question of procedure in the Carbone case.
He writes in an opinion (read here) that what's important is not just that a state law abrogates federal procedural rules, but also how the competing set of guidelines for judges "answer the same question," that being, how to measure the validity of a claim at the pretrial dismissal stage.
"The problem with the argument about the purposes of the relevant Federal Rules and the anti-SLAPP statute is that the means by which the Georgia law pursues its special purpose is by winnowing claims and defenses in the course of litigation," states the opinion. "That the aim of the statute is to protect First Amendment rights is irrelevant, because the anti-SLAPP statute advances that end by imposing a requirement on a plaintiff's entitlement to maintain a suit over and above the requirements contemplated by the Federal Rules that control the same question."
The decision now applies to the Eleventh Circuit, which covers Georgia, Alabama and Florida.
Other federal circuits around the nation including the First Circuit, the Second Circuit, the Fifth Circuit and the Ninth Circuit have ruled in the past that state SLAPP laws should apply in federal court. As a result, should CNN elect to shoot for a review at the U.S. Supreme Court (after petitioning for a rehearing at the Eleventh Circuit), the news network stands a decent shot at garnering interest at the high court.
But there's now a wrinkle in the calculus for CNN in whether to attempt any Supreme Court bid. His name is Brett Kavanaugh.
Before Kavanaugh was confirmed to be the newest associate justice at the high court, he authored an opinion for the D.C. Circuit that also expressed skepticism about the federal judge's use of SLAPP laws. In fact, after acknowledging how most sister circuits have come to a different conclusion to the issue at hand, Pryor (himself on Trump's shortlist for the Supreme Court) nods to Kavanaugh's "far more convincing" 2014 opinion in Abbas v. Foreign Policy Group.
Should CNN take its case to the Supreme Court — and lose — that would mean no more use of SLAPP laws in federal court nationwide, a prospect that could scare off any petition for writ of certiorari. Then again, even if CNN gets risk-averse, there will likely be others who someday take the issue to the high court. For example, Daniels' attorney Michael Avenatti will be looking to overturn the recent decision in favor of Trump by appealing the issue of whether Texas SLAPP statute had any business in a California court.