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Donald Trump probably doesn’t know about it, but the guy who once said he wanted to open up libel laws will probably be quite pleased by a new ruling from a Georgia federal judge. In fact, the stakes in this case are so high we wouldn’t be surprised if it eventually lands before the U.S. Supreme Court and potentially makes it easier to sue entertainment and media outlets. There’s a reason why the Motion Picture Association of America submitted an amicus brief in this case.
The lawsuit is Davide Carbone v. Cable News Network.
Carbone was the chief executive of West Palm Beach, Fla.-based St. Mary’s Medical Center until CNN reported in June 2015 that the infant mortality rate for open-heart surgery there was three times the national average. Reporters for Anderson Cooper’s CNN show aggressively covered the death of babies at the hospital and even went to Carbone’s home in an attempt to get comment. Instead, he closed his garage door on them. Later, he was forced to resign. His defamation lawsuit followed.
What makes this case so important is how a judge addressed CNN’s attempt to strike the lawsuit.
Many states have anti-SLAPP statutes in the interest of guarding against frivolous lawsuits attacking First Amendment activity. Georgia is one of them. Under these SLAPP statutes, plaintiffs have to show a likelihood of prevailing before the case moves any further.
But under federal civil procedure law, plaintiffs only need to demonstrate the plausibility of claims before a motion to dismiss is denied. So the question is — which standard should be used? If a judge just goes with plausibility instead of probability, it means that plaintiffs in a range of cases involving First Amendment activity — not just defamation, but also ones alleging stolen scripts, privacy violations, discrimination and so forth — get an easier road past initial hurdles and into discovery. That ups the cost of defending lawsuits significantly. That might help explain why the MPAA joined other media companies in telling the judge that anti-SLAPP laws are “fundamentally important.” (See here.)
On Tuesday, U.S. District Judge Orinda Evans decided that the plausibility standard under federal rules was what was most important. In coming to the decision, she notes that appellate circuits around the nation have split on the issue. The judge cites a 9th Circuit decision that there’s no conflict between a state’s anti-SLAPP law and federal rules because litigants are free to try both. Evans also nods to 9th Circuit judges like Alex Kozinski who have “challenged the wisdom of the 9th Circuit’s continued tolerance for anti-SLAPP statutes.”
Ultimately, she likes what D.C. Circuit Judge Brett Kavanaugh has to say.
“He agrees with this Court that the two are in conflict and cannot co-exist,” writes Evans. “As in D.C., here, the Georgia anti-SLAPP statute impermissibly ‘set[s] up an additional hurdle a plaintiff must jump over to get to trial’ in federal court.”
So she effectively renders Georgia’s free-speech protection statute toothless. Or at least in federal court where litigants must use federal procedure even if the claims are premised under state law. That’s important from a tactical perspective, we think, and may even influence where plaintiffs choose to file.
As for the rest of the opinion, which weighs the plausibility of Carbone’s claims, Evans feels there’s enough to move it forward. The plaintiff is disputing how CNN arrived at its infant mortality rate statistic. Carbone alleges that it should have been risk-adjusted, that CNN was doing an “apples-to-oranges comparison” when comparing St. Mary’s Medical Center to the national average.
CNN will have the opportunity to fight this contention at a later stage in the case, but the point is that it will still be fighting instead of getting the judge to address the merits of the claims now rather than later. Before Trump was elected president, we suggested that his threats necessitated a federal anti-SLAPP law. Instead, the decision, as it gets appealed upwards, may risk undercutting the existing anti-SLAPP state statutes around the nation.
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