Fox News host Jeanine Pirro may provoke controversy with her racially charged commentary, but in the midst of a suspension over what she said about Muslim congresswoman Ilhan Omar, she has scored a win in a defamation lawsuit brought by “Black Lives Matter” activist DeRay Mckesson.
Mckesson went to court in New York over Pirro’s words on the Sept. 29, 2017, edition of Fox & Friends. On the program that morning, Pirro discussed what had occurred a year earlier in Baton Rouge, Louisiana, and the legal aftermath. Specifically, the program showed video of a “Black Lives Matter” protest (an earlier one in Minnesota) before Steve Doocy questioned her about a case brought by a Louisiana police officer injured by a thrown rock and a judge’s determination that “Black Lives Matter” was not an entity that could be sued. Pirro also addressed a second case — one brought by Mckesson and other protesters who alleged civil rights violations on the part of the city after they were arrested. That latter case settled for $136,000. Thus, Pirro had to explain why the cop’s lawsuit failed while Mckesson and other “Black Lives Matter” protesters got money.
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“The problem is when you have federal judges who make decisions based on politics — activist judges — and not on the facts,” said Pirro on television. “You’ve got a police officer who was injured, he was injured at the direction of DeRay Mckesson. Deray Mckesson walks away with $100,000 for an organization that is amorphous. We got a problem in this country.”
About a month after the broadcast, McKesson’s attorney sent a letter demanding that Pirro retract her statement that Mckesson directed violence that resulted in injuries to a police officer. Further, Mckesson wanted to make clear that he didn’t receive $100,000, but rather he and nearly 100 other individuals received a few hundred dollars each for being unlawfully arrested by the Baton Rouge Police Department.
Upon no response, Mckesson filed suit.
At a hearing last year, New York Supreme Court Judge Robert Kalish nodded to how Pirro had once been a judge herself and faulted her for sloppy language. “You’d think she’d know better,” said Kalish.
But that assessment aside, Kalish is now granting a motion to dismiss and maybe providing a lesson how those who are loose with language — even conservative voices — benefit from libel laws that are not overly punitive.
Addressing Mckesson’s argument that Pirro’s statements were defamatory because they’d cause a reasonable viewer to believe the activist intentionally caused someone to injure a police officer, Kalish writes that when the statements are viewed within the context of the show, viewers would understand this was an allegation made by the officer.
The judge adds, “Moreover, although the statement that the plaintiff-officer ‘was injured at the direction of DeRay Mckesson’ may cause a reader to believe such if it is read in isolation, viewing the entire video sequence as a whole it is clear that Pirro is expressing her opinion that the plaintiff-officer should be allowed to pursue his civil complaint against Mckesson on the theory that Mckesson may be held liable for the violent events that occurred during a demonstration that he allegedly led considering the allegations of the plaintiff-officer.”
Kalish also says that the language of “directed the violence” lacks a precise meaning and it is not a statement that is capable of being proven true or false. Furthermore, the judge addresses the larger context of protests and the frequent topic of debate that organizers should be considered responsible for subsequent violence.
Besides giving Pirro the benefit of interpreting her statements as non-actionable opinion, Kalish also decides that the statements are privileged as a fair and true report of judicial proceedings. That’s because, according to the judge’s opinion (read below), what Pirro stated was substantially accurate.
Take the issue of whether Mckesson walked away with $100,000.
“Certainly, Mckesson did not ‘walk away’ with $100,000 for himself or for the Black Lives Matter movement,” writes the judge. “This ‘walks away’ statement must be read in context of the whole segment in which Pirro earlier said that: ‘DeRay Mckesson and several — I think it’s about 90 of the people who were protesting… actually got $100,000 from the City of Baton Rouge…’…. Ultimately, Mckesson did serve as a named plaintiff in the Class Action and the parties submitted a proposed settlement with a ‘total economic benefit’ of approximately $136,300 to the class members. As such, Pirro’s statements in the context of the whole segment are substantially accurate for the purpose of receiving protection of Civil Rights Law 74.”
