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“Should there be consequences to those people who promote falsehoods?”
That was the question that Jeanine Pirro put to President Donald Trump when he called into her Fox News show on Oct. 7, a day after the U.S. Senate approved the contentious Supreme Court nomination of Brett Kavanaugh. When Trump responded that he’d love to see libel laws toughened so that victims of smears could have an easier time getting comeuppance, Pirro voiced approval. “Exactly, exactly,” she said.
On Tuesday, just two weeks after Pirro prodded Trump to reaffirm his punitive approach to free speech, an attorney for the former Westchester County judge appeared in court in a bid to get her out of a defamation lawsuit brought by Black Lives Matter activist DeRay Mckesson. This time, Pirro was singing a different tune. Her lawyer argued there should be no consequences for Pirro’s allegedly false statements accusing Mckesson of directing “Black Lives Matter” protesters to injure police officers.
At the hearing, New York Supreme Court Judge Robert Kalish entertained arguments in a case all about how we talk about jurisprudence in this country, how Fox News viewers interpret what they hear from its commentators and, yes, about double standards. Needless to say, while ultimately reserving his judgment about whether this lawsuit should continue, Kalish wasn’t particularly impressed by Pirro’s performance on television.
“She was a judge. She was a former District Attorney,” Kalish told Dori Hanswirth, the Arnold & Porter attorney appearing for both Fox News and Pirro. “You’d think she’d understand what we are dealing with. … You’d think she would give a very clear and accurate statement. You’d think she’d know better.”
The lawsuit, filed last December, addresses comments that Pirro made on Sept. 29, 2017, on the Fox News talk show Fox & Friends. On the program that morning, Pirro discussed what had occurred a year earlier in Baton Rouge, Louisiana, and the legal aftermath.
Here’s what happened: In response to a police shooting, Mckesson led protests in the street. At some point, water bottles were thrown, and someone began throwing rocks. There were injuries. When Mckesson and other protesters refused to get out of traffic along a highway, they were arrested. Mckesson spent a night in jail. Later, he and others filed a class action lawsuit against the city. The case settled for $136,000. Meanwhile, one anonymous Louisiana police officer who was injured during the protest filed his own negligence lawsuit against Mckesson and the “Black Lives Matter” movement. That case was dismissed and is currently on appeal.
Fox & Friends co-host Steve Doocy asked Pirro about the latter case and the judge’s determination that “Black Lives Matter” was not an entity that could be sued. Pirro explained the obstacle before launching an attack on Mckesson.
“And in this particular case, DeRay Mckesson, the organizer, actually was directing people, was directing the violence … but guess what, the judge said, you know what he was engaging in [is] protected free speech,” said Pirro. “Now I want you to guess who appointed this federal judge.”
After revealing the answer to be Barack Obama, Pirro added, “The problem is when you have federal judges who make decisions on politics — activist judges — not on the facts. You’ve got a police officer who was injured, he was injured at the direction of DeRay Mckesson, DeRay Mckesson walks away with a hundred thousand dollars, for an organization that is amorphous, we got a problem in this country.”
Mckesson then filed his complaint, and co-defendants Pirro and Fox News responded by blasting what they characterized as an attempt to chill their First Amendment rights. They are offering multiple reasons why the suit should be dismissed.
First, the defendants are arguing that Pirro’s comments are privileged as a fair and true report of judicial proceedings. Second, the defendants are putting forward that Mckesson, as a public figure, has failed to adequately allege actual malice. And third, the defendants are making the contention that the challenged statements are non-defamatory as any reasonable viewer would understand what Pirro said to be her opinion concerning the outcome of a judicial proceeding.
Judge Kalish wanted to discuss the Fox & Friends segment, and specifically why it began with footage from a different Black Lives Matter protest in St. Paul, Minnesota, that he said “had nothing to do” with what went down in Louisiana.
Hanswirth responded that it showed how the Black Lives Matter movement had sparked multiple demonstrations and how it showed the movement was organized. The defense attorney would soon add that context was important in the evaluation of Pirro’s comments. The point that Pirro was attempting to make, explained Hanswirth, was that it wasn’t fair how a class of individuals — the protesters — had come away with money from the incident while the injured police officer was stopped in his own legal efforts because “Black Lives Matter” didn’t constitute any sort of class or legal entity capable of being sued.
“Ms. Pirro was on the air to provide comment,” said Hanswirth. “You can tell by the way she talks: ‘We have a problem in this country.’.. You can tell she is making an opinion.”
In Hanswirth’s framing, the analysis of who can get legal redress and who doesn’t might approach being a sophisticated take, but Kalish zeroed in on Pirro’s exact words, noting discrepancies like who actually received the money and, most importantly, exactly how Pirro discussed the allegation that Mckesson had purposely directed an injury to the police officer.
“She is making it sound like fact,” said Kalish, adding that Pirro may have been conflating the two cases. “Well, she’s clearly got them mixed up, right?”
“I don’t think she got it mixed up. I think she’s talking in shorthand.” responded Hanswirth.
That’s when the judge began scolding Pirro as someone who should know better on the difference between facts and allegations and the need to properly articulate the distinctions. Hanswirth deferred to the fair report privilege, how such protections are broad and, as she put it, “It’s important we can talk about what happens in courts.”
Judge Kalish asked Hanswirth whether Fox News presented a “balanced account” of what happened in Louisiana.
“They don’t have to give a balanced report,” said Hanswirth.
“Oh, they don’t?” responded the judge.
Matthew Melewski, the attorney for Mckesson, told Judge Kalish that he saw the situation differently. He pressed the point that Pirro recklessly made factual claims about Mckesson directing violence against a police officer even though such claims appeared nowhere in the legal proceeding brought by the Louisiana cop. As such, he stressed that the comments fell outside of immunities afforded to fair and true reports of judicial proceedings.
But Kalish was just as tough on Mckesson’s attorney as he was on Pirro’s.
The judge pointed out that the allegation that Mckesson was responsible for the police officer’s injury through his direction of the protests was in an amended complaint, and while Melewski attempted to argue that this version was never officially entered in the proceeding, Kalish knew that the federal judge had at least reviewed a motion for an amendment. Plus, added Kalish, the dismissal of the lawsuit did not mean that Mckesson didn’t do what he was being accused of.
“False statements of fact that were directly contrary to the decision cannot possibly be characterized as substantially accurate or a fair and true report,” attempted Melewski.
Kalish and Melewski then sparred on what Pirro had said, with the judge emphasizing her careful setup and the plaintiff’s attorney stressing how she used the words “actually” and “the facts” in her later discussion of what had happened in Louisiana.
“You don’t think that it’s not clear to [Fox News] viewers that Ms. Pirro obviously was never down in Baton Rouge, that she has no actual involvement with Black Lives Matter, no involvement with DeRay Mckesson, no involvement with the police?” asked the judge in attempting to incorporate the other side’s argument that Pirro was disclosing no personal knowledge of what had occurred but merely offering perspective on what she had found online.
Melewski responded that this was a motion to dismiss — and that a jury should decide what Fox News viewers interpreted from Pirro’s comments.
The judge now will come to a decision, but no matter what occurs, the case perhaps articulates the unfortunate principle, “Free speech for me — but not for thee.”
For Black Lives Matter, a movement born from the disparate treatment of African Americans by law enforcement, Mckesson claims the First Amendment right to articulate his grievances in public yet is in court looking to punish a vocal critic of his acts. And for Pirro, she’s like Trump in potentially becoming the beneficiary of First Amendment standards that make it tough for public figures to sue for defamation (see Trump’s recent win in the Stormy Daniels case) yet seemingly wishes lesser standards. Of course, maybe she doesn’t think that Mckesson should benefit from such advantage. If so, that’s a problem for this country — and to be clear, it’s only an opinion.
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