2:37pm PT by Eriq Gardner
Joe Arpaio Called "Libel-Proof" As CNN, HuffPo and Rolling Stone Push for Lawsuit Dismissal
Joe Arpaio, the controversial former sheriff of Maricopa County, Ariz., who earned Donald Trump's first pardon, is many things, but he's not a "convicted felon," as CNN reported, not an "ex-felon," as Rolling Stone described him, and he has never been "sent to prison," as the Huffington Post once wrote in passing in the midst of a story that had not much to do with him. Yes, he was convicted of criminal contempt after violating a judge's orders to stop detaining suspected undocumented immigrants, but it was a misdemeanor, not a felony.
Some reporters are confused, but should CNN, Rolling Stone and Huffington Post have to pay a sum of $300,500,000 as Arpaio demands in a defamation suit? On Friday, a federal judge in the District of Columbia was given reasons why the suit should be tossed.
The media outlets are definitely taking this case seriously. CNN has tapped Williams & Connolly litigator Kevin Baine, who after representing ABC in the big "pink slime" case (which settled for $177 million), successfully got Fox News out of defamation suits over Seth Rich stories and Bill O'Reilly statements. That's right. CNN and Fox News now share a lawyer. As for Rolling Stone, it's turning back to Elizabeth McNamara, who represented the publication over the infamous campus rape story. And Huffington Post is using Jean-Paul Jassy (who has represented The Hollywood Reporter in the past.)
On Friday, each of the media outlets (including co-defendants Jeff Zucker and Chris Cuomo) were scheduled to deliver motions for dismissal, and Huffington Post went first.
"Arpaio’s defamation claim fails because case law nationwide spanning over a century makes clear that the gist and sting of the portion of the report at issue is that Arpaio was convicted of criminal conduct; whether he served time in prison is ancillary," states the dismissal brief. "The HuffPost piece is therefore protected under the constitutionally-based doctrine of substantial truth."
Plus, Huffington Post argues that no matter what anyone says about Arpaio, his reputation simply can't go any lower when coupled with the "accurate, but damning, reference to his criminal conviction."
Actually, the argument becomes even more nuanced because the brief argues for "issue-specific libel-proof" because as explained here, "any damage associated with that short and fleeting reference within the HuffPost Article would be nominal at most, and could not support a libel claim. If Arpaio cannot recover damages under the issue-specific libel-proof plaintiff doctrine, then his defamation claim fails for that additional reason."
Separately comes a special motion to dismiss pursuant to the D.C. anti-SLAPP Act, which is interesting in and of itself given Brett Kavanaugh's role a few years back attempting to quash use of SLAPP analysis in federal court, particularly in the D.C. federal circuit, where Arpaio's case is being fought. These laws are meant to deter frivolous litigation aimed at activity protected by the First Amendment. After Kavanaugh's opinion in Abbas, a footnote in a subsequent decision attempted to walk it back — which Huffington Post's lawyer points out. Put a pin on this in the event Arpaio's lawsuit is SLAPP'd out and then reaches an appeals court.
As for CNN, besides arguing that Cuomo's talk of Arpaio as a "felon" was substantially true ("whether a conviction for contempt is technically even a felony or misdemeanor is an unsettled question of federal criminal law"), the broadcaster contends that Arpaio can't demonstrate actual malice.
"To the extent there was any error in the segment, it was fleeting and immediately corrected," states CNN's dismissal brief. "This case implicates precisely the kind of good-faith mistake that the actual malice standard is supposed to inoculate."
Arpaio's attorney Larry Klayman sent The Hollywood Reporter a statement via email in response to the filings. "These media defendants are highly sophisticated and were aware that Sheriff Arpaio was not convicted of a felony," says Klayman. "They acted with malice or reckless disregard for the truth to harm him. And, their anti-SLAPP motion is frivolous and sanctionable as it cannot be asserted in D.C. federal court when jurisdiction is based, as here, on diversity of citizenship."
March 15, 6:25 p.m. Updated with a statement from Arpaio's attorney.