Tag: Free speech

Readers of the blog likely recall this lawsuit, brought by climate scientist Michael Mann against columnist Mark Steyn, blogger Rand Simberg, the National Review, and the Competitive Enterprise Institute (see our various posts on the subject). The National Review and CEI had been granted summary judgment in 2021, but in January 2024, the jury found Steyn and Simberg liable for defamation, to the tune of $1 compensatory damages + $1M punitives against Steyn, and $1 compensatory + $1K punitives against Simberg.

But the trial judge then reduced those punitive damages to $5K. The trial judge also ordered Mann to pay defendants $1M in attorney fees ($530K to the National Review and $477K to Simberg) under D.C.’s anti-SLAPP statute, based on defendants’ having gotten some of Mann’s claims dismissed. Afterwards, Mann and the National Review settled their dispute; Mann agreed to drop his claims, dismissing his appeal of the judgment, in exchange for National Review agreeing to waive the $530K in attorney fees.

Now here’s the latest, from Thursday’s decision by D.C. Superior Court Judge Alfred Irving in Mann v. National Review, Inc., reaffirming a March 12, 2025 sanctions order:

Dr. Mann throughout this litigation complained that he suffered lost grant funding directly stemming from the defamatory statements of Messrs. Simberg and Steyn, while providing very little in the way of specifics about the dollar amounts of his losses directly attributable to the statements (such as corroborating testimony from percipient witnesses), all while promising to illuminate the Court at trial.

At trial, Dr. Mann elected through his attorneys to present to the jury a blown-up demonstrative, without redaction or explanation, a demonstrative intentionally prepared for its use at trial, which included a budget (loss) amount of $9,713,924.00, when the correct amount, previously corrected during a third round of discovery, was $112,000. Dr. Mann and his attorneys explain that there was no harm in publishing the demonstrative to the jury because Defendants and the Court knew well that the $9.7 million was later corrected during discovery, while ignoring the fact that the trial’s factfinders, the jury, were never made privy to the discovery corrections through Dr. Mann’s in-court testimony.

To date, Dr. Mann and his attorneys have provided no plausible explanation why they prepared a demonstrative that contained incorrect figures to be used at trial, when they could have very well prepared a demonstrative with the correct figures. This is particularly troubling given that the lost grant funding amounts were central to Dr. Mann’s case, and considering that Dr. Mann, indeed, was represented by very skilled and seasoned attorneys. The attorneys’ assertions that they knew Defendants would “deal with” making the corrections during re-cross strain credulity and nevertheless fail to explain why the use of an erroneous demonstrative was preferable over a non-erroneous demonstrative.

To be sure, without redactions or corrective testimony, Plaintiff left the jury with misleading evidence, suggesting that he suffered damages in at least the amount of $9,713,924.00. The Court rightfully concluded that Plaintiff and his attorneys acted in bad faith and that their litigation tactics cannot and should not be condoned in this jurisdiction. Because the Court’s Order addresses the pertinent and salient arguments that the movants presented in the instant pleading, the Court hereby declines to address further any other assertions set forth in their filing seeking reconsideration.

As to Dr. Mann, in particular, he was indeed ultimately responsible for the conduct of the litigation of his case and it was his responsibility to ensure that the facts of his case were presented truthfully and straightforwardly, so that the jury could reach a fair and reasonable decision based on the facts. Furthermore, he was tasked with knowing the facts of his case, one he filed in 2012.

The Court observed during Dr. Mann’s own testimony that he often expanded his answers exceeding the bounds of the questions asked when it suited him. He could have done so, here, when his attorneys explored all aspects of the subject demonstrative except for correcting the incorrect loss amounts contained in the demonstrative. Again, to argue that he made corrections during discovery serves no purpose when he elected not to make the corrections for the factfinders’ consideration during trial. To argue further that Dr. Mann and his attorneys knew that Defendants would make the corrections during re-cross examination misses the point and presumes that the Court would have even allowed re-cross examination. Such a trial tactic does not explain why experienced attorneys and a sophisticated client would risk having the Plaintiff’s credibility unnecessarily brought into question when the stakes were so high.

The only explanation the Court could glean is that each knew that if the jury saw the $9.7 million figure, and it went unchallenged or inadequately challenged, the jury might have finally been presented with something tangible in deciding compensable damages. While Plaintiff and his attorneys find nothing wrong with such practice, the Court simply cannot condone such bad faith litigation tactics, particularly in a case that had been zealously litigated across several years and a case involving complicated facts. Thus, the Court’s ruling must stand. It is the Court’s duty to punish and deter bad faith litigation tactics…

The court therefore awarded $16.7K in attorney fees and costs to defendant Rand Simberg, and $11.4K in attorney fees and costs to defendant Mark Steyn.

Andrew Grossman, Mark I. Bailen, the late David B. Rivkin, Mark W. DeLaquil, Renee Knudsen, and Victoria L. Weatherford represent Simberg. My colleague H. Christopher Bartolomucci (of Schaerr Jaffe LLP, where I’m a part-part-part-time academic affiliate) represents Steyn; I have not worked on the case myself, nor discussed these issues with Bartolomucci, nor been asked by anyone to blog about it.

From the Joint Pre-Trial Memorandum in McQuade v. UMass Memorial Health Care, Inc., the plaintiff’s position:

In the summer of 2020, a position at UMass Memorial’s Heart Vascular Interventional Lab commonly known as the Cath lab opened. Mr. McQuade and Andrews both applied for the Cath lab position. Ms. Andrews was awarded the Cath lab position. Once Mr. McQuade learned that Ms. Andrews was awarded the Cath lab position, he reached out to his union representatives for advice. Mr. McQuade’s Massachusetts Nurses Association (“MNA”) union representatives … both advised that Mr. McQuade should file a grievance because he had seniority over Andrews, and had the requisite experience to work in the Cath lab.

Ultimately, on September 11, 2020, Mr. McQuade was successful in his grievance and was awarded the Cath lab position. This, in turn, caused Andrews to leave the Cath lab position and return to her previous position in the float pool. Andrews was angry that she had to return to the float pool. Andrews desperately wanted to stay in the Cath lab and filed her own counter grievance that was eventually denied at the “step 3” stage by UMass Memorial. Therefore, the only way Andrews could be able to return to the Cath lab would be if a position opened by resignation or otherwise, including the resignation of Mr. McQuade….

The Nurse Defendants are all friends and would frequently socialize outside of work together. Mr. McQuade expects the evidence will show that, the Nurse Defendants did the unthinkable, and started a vile, and frankly evil slander campaign against Mr. McQuade, in an effort to have him resign from the Cath lab, so the Nurse Defendants could all work together again. Specifically, the Nurse Defendants began spreading defamatory rumors around UMass Memorial that stated Mr. McQuade abused his wife and child and had an open DCF investigation against him. Further, Clark stated that Mr. McQuade “created a farm in [his] back yard in order to lure in children as [his] prey.”

{Q: “Okay. And the allegations concerning Mr. McQuade were a child abuse and spousal abuse. By spousal abuse, specifically, did you mean that he hit his wife?” Mr. Spezzaferro: “I think the way it was put to me was that he hits his wife.”

Q: “Were you aware of any statements circulating around the hospital relating to Mr. McQuade and child abuse? Ms. Baer: Objection. Ms. O’Rourke: Yes.” … Ms. O’Rourke: “Basically that there are statements being made by Ms. Andrews, and Ms. Clark, and Ms. Spratt while—about Patrick’s child being taken away by DCF and the alleged child abuse.”}

The abhorrent slander became widespread throughout UMass Memorial…. Because Andrews was in the float pool, the defamation was easily spread as she “floated” from unit-to-unit slandering Mr. McQuade….

The rampant defamation became so widespread that Ms. Champagne, took a huge professional risk and decided she needed to go to HR. Accordingly, Ms. Hiza met with Ms. Champagne and Mr. Spezzaferro on the afternoon of November 19, 2020. Ms. Hiza took contemporaneous notes of the meeting, as part of the regular course of her job, that stated, in pertinent part, the following:

… [Andrews] said fuck him—he took my job—he’s big and scary

He’s [Mr. McQuade] lazy a hard piece of shit

He’s [Mr. McQuade] abusive and knows how to use guns

DSS [DCF] case—abusive daughter—he’s abusive Yeah, she keeps—about this within 7ICU. They are her friends.

Character assassination

She [Andrews] was on 3ICU all weekend carrying on about Patrick.

After the meeting with Ms. Champagne, fully aware of the extent of the defamation, Ms. Hiza and other UMass Memorial HR staff investigated the defamation. Eventually UMass Memorial HR staff and Ms. Hiza met with the Nurse Defendants. Aware of the slander campaign, UMass Memorial, during work hours, instructed each Nurse Defendant to stop the defamation. Importantly, after the investigation, Ms. Hiza and UMass Memorial HR could not conclude that defamation was not occurring….

UMass terminated him for alleged sexual misconduct against another nurse, … McCarthy … who was friends with the Nurse Defendants. UMass Memorial had a written investigatory report when it terminated Mr. McQuade. In the written report Mr. McQuade complained thathe believed he was retaliated against by McCarthy because of the defamation.

McCarthy also brought criminal charges against Mr. McQuade. At trial, Mr. McQuade was found not guilty of a sexually related felony against McCarthy.

The defendants’ position:

Defendants respectfully submit that Mr. McQuade has no admissible evidence that will show that he was the subject of any defamatory statements by any of the Nurse Defendants. Specifically, Plaintiff has no admissible evidence to prove: when the alleged defamatory statements were made, how the alleged defamatory statements we made, where the alleged defamatory statements were made, or to whom the alleged defamatory statements were made. Moreover, Plaintiff has waivered on what he has alleged to be the contents of the allegedly defamatory statements.

The reason for Plaintiffs lack of evidence is clear: no statements were made. Rather, Plaintiff—who was mentally “spiraling” in 2020—was the one who told multiple people working for UMass Memorial that there were defamatory statements said about him (i.e., he was the one that spread stories of the alleged defamatory statements). Not one person can or will testify that they heard any of the Nurse Defendants make any statement about Plaintiff. After Plaintiff brought his accusations to UMass Memorial’s Human Resources, the allegations were promptly investigated and not substantiated.

The evidence will show that Plaintiff’s employment was terminated because he sexually assaulted a nurse (not one of the Nurse Defendants) and was criminally charged and convicted for the conduct. Plaintiffs relocated by his own choice after he was criminally charged, which is unrelated to Plaintiff’s claims of defamation and intentional infliction of emotional distress. [According to a Nov. 21 article about the defamation case in the Worcester Telegram & Gazette (Toni Caushi), McQuade had been fired “following sexual allegations by a nurse; he was found guilty in October 2022 on an annoying and accosting charge—a non-sexual misdemeanor” and “found not guilty for an ‘indecent assault and battery charge.’” -EV]

Earlier this month, the jury concluded that plaintiff hadn’t proved his case against Clark (which I assume means it didn’t believe she made the “created a farm in [his] back yard in order to lure in children as [his] prey” claim), but did prove that Andrews had defamed him. The jury awarded McQuade $100 in actual damages against Andrews, and $75K against UMass Memorial, to which the court added $40K in interest.

From Trump v. CNN, Inc., decided today (correctly, I think) by Judges Adalberto Jordan, Kevin Newsom, and Elizabeth Branch:

In 2022, Plaintiff-Appellant Donald J. Trump filed a defamation suit against Cable News Network, Inc. (CNN). He complained that, by using the phrase “Big Lie” to describe his claims about the 2020 presidential election, CNN defamed him….

To be clear, CNN has never explicitly claimed that Trump’s “actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations.” But, according to Trump, this assertion is implied in CNN’s use of the phrase “Big Lie.” Further, he argues, the phrase “could reasonably be interpreted … by facets of the CNN audience as accusations that [Trump] is doing exactly what the historical record shows [that] Hitler did in his monstrous, genocidal crimes against humanity.” And, the argument goes, these accusations are false statements of fact because Trump did not do exactly what Hitler did. Hitler engaged in a monstrous genocide; Trump “exercis[ed] a constitutional right to point out concerns with the integrity of elections.”

Trump’s argument is unpersuasive. First, although he concedes that CNN’s use of the term “Big Lie” is, to some extent, ambiguous, he assumes that it is unambiguous enough to constitute a statement of fact. This assumption is untenable. Although we haven’t squarely addressed the point, case law from other circuits is persuasive. In Buckley v. Littell (2d Cir. 1976), the Second Circuit held that, by using the terms “fascist,” “fellow traveler,” and “radical right” to describe William F. Buckley, Jr., the defendant was not publishing “statements of fact.” Buckley, 539 F.2d at 893. Rather, the court ruled, the terms were “so debatable, loose and varying[ ] that they [we]re insusceptible to proof of truth or falsity.” Similarly, in Ollman v. Evans (D.C. Cir. 1984), the D.C. Circuit held that when the defendant called the plaintiff “an outspoken proponent of political Marxism,” his statement was “obviously unverifiable.”

Trump argues that the term “Big Lie” is less ambiguous than the terms “fascist,” “fellow traveler,” “radical right,” and “outspoken proponent of political Marxism.” But he does not explain this assertion. If “fascist”—a term that is, by definition, political—is ambiguous, then it follows that “Big Lie”—a term that is facially apolitical—is at least as ambiguous.

Second, Trump’s argument hinges on the fact that his own interpretation of his conduct—i.e., that he was exercising a constitutional right to identify his concerns with the integrity of elections—is true and that CNN’s interpretation—i.e., that Trump was peddling his “Big Lie”—is false. However, his conduct is susceptible to multiple subjective interpretations, including CNN’s. As we held in Turner, one person’s “subjective assessment” is not rendered false by another person’s “different conclusion.” In Turner, the defendants stated that, on at least one occasion, the plaintiff, James Turner, offensive line coach of the Miami Dolphins, participated in the “homophobic taunting” of one of his players. Turner argued that this statement was false because his conduct was a “harmless ‘joke,’ as opposed to homophobic taunting.” We rejected his argument, concluding that the statement “[wa]s the [d]efendants’ subjective assessment of Turner’s conduct and [wa]s not readily capable of being proven true or false.”

Just as the Turner defendants described Turner’s conduct as “homophobic taunting,” CNN described Trump’s conduct as his “Big Lie.” Just as Turner viewed his own conduct as a “harmless ‘joke,’” Trump viewed his own conduct as the exercise of a constitutional right. As in Turner, so too here. CNN’s subjective assessment of Trump’s conduct is not readily capable of being proven true or false.

Trump has not adequately alleged the falsity of CNN’s statements. Therefore, he has failed to state a defamation claim….

Eric P. Schroeder and Brian M. Underwood, Jr. (Bryan Cave Leighton Paisner LLP) and George S. LeMieux and Eric C. Edison (Gunster, Yoakley & Stewart, P.A.) represent CNN.

This new article is here. The Introduction:

In the wake of the mega-million-dollar settlement of U.S. Dominion’s defamation action against Fox News over the network’s broadcast of false election fraud claims after the 2020 U.S. presidential election, shareholder derivative actions were brought in Delaware against the parent company Fox Corporation’s board of directors for breach of fiduciary oversight duties under state corporate law. The shareholder plaintiffs claimed that the Fox Corporation board breached its fiduciary duties by allowing Fox News knowingly to air false programming that put the company at risk of massive defamation liability. The Delaware Chancery Court denied Fox Corp.’s motion to dismiss the action for lack of standing, so the derivative action is currently pending.

But should corporate fiduciary duty law be interpreted to impose liability on the boards of companies that own news outlets for failing to control defamation and other speech tort risks associated with the editorial judgments made by their news subsidiaries? What makes the In re Fox Corporation Derivative Litigation (hereinafter “In re Fox“) significant beyond its specific facts is that the plaintiffs’ rationales seek to expand and supercharge the traditional oversight requirements of corporate law. If accepted, this turn to strengthening the disciplinary power of corporate governance in the news media context is likely to undermine press functions and the public interest in a free and independent press.

The expansive interpretations of corporate governance principles advanced in In re Fox could attract support on the basis that corporate oversight duties can serve to minimize misinformation in political discourse. Surveys reveal that many Americans see political misinformation as a social threat. If using corporate law to combat misinformation could lead to robust censorship effects on falsity, then many could consider this a significant public benefit. This could incentivize additional lawsuits against the press.

At the same time, such a development is likely to undermine press activity in ways harmful to public discourse. If these kinds of corporate governance claims are successful, they promise to generate a regulatory regime of editorial control by risk-averse corporate boards with much broader business interests than the protection of press freedom. The possibility of multi-million-dollar personal liability for parent company board members—or at least corporate insurers—is likely to generate excessive board-level micromanagement.

It is reasonable to expect that this would lead directly to journalistic self-censorship by news subsidiaries, deter journalism discouraged by a press-hostile government, and worsen journalistic timidity in covering the powerful and litigious. The self-regulatory compliance and oversight systems likely to be implemented in media companies as a response to heightened governance liability will inevitably extend to coverage of matters beyond clearly false information.

Enhanced board obligations may also lead to uneven effects. If the most likely plaintiffs in defamation actions continue to be the politically powerful, wealthy, or socially notable, parent company boards worried about follow-on oversight lawsuits might feel disproportionate pressure to reduce critical coverage of such elites. Society loses when the powerful are not held to account. Moreover, heightened compliance requirements could provide cover for targeted and politicized efforts by board members to influence the content of their news units. Such results would all be dangerous for the press function and, ironically, for the same public discourse that anti-misinformation initiatives seek to improve.

Proponents of expanded oversight doctrine may attempt to dispute these predictions of a chilling effect on journalism by noting that damages payouts in successful shareholder derivative actions go to the corporate treasury. So if a derivative action based on the company’s prior payments to defamation plaintiffs is successful, the recovery may in fact offset the company’s defamation payouts by recouping the money from the culpable directors themselves.

But such theoretically reallocated liability cannot in fact be expected to temper either the corporate costs of expanded oversight litigations or the expected chilling effect on news companies’ journalist functions. If the Fox plaintiffs’ arguments to change corporate oversight doctrine are successful, the true costs are likely to be extensive. When oversight compliance requirements are effectively dictated by corporate insurers with little or no commitment to journalism, intrusive oversight into and second-guessing of the editorial process is practically guaranteed. Even if this would lead to desirable results for the most extreme cases, the consequences of overzealous compliance are likely to be overbroad and troubling for the public interest.

The functions of an independent press are democratically necessary and already subject to excessive economic, social, and governmental pressure (including legally aggressive lawsuits against FCC-regulated broadcast outlets by a sitting President). Adding even more pressure is bad policy. In light of the sustained recent attacks on constitutional press protections in defamation cases, the limits to other newsgathering protections, and press-skeptical courts and juries, the press is already in a particularly vulnerable spot legally. Recent settlements of lawsuits against CBS and ABC brought by President Trump trigger suspicions that the executive branch is not only demanding but also obtaining exceptional capitulation from conglomerate-owned press entities.

The anti-misinformation frame implicit in In re Fox thus offers an opportunity to address key questions about what types of trade-offs we should accept between two of our foundational social commitments—to the democratic value of the independent press and the democratic value of truthful political discourse. Because the deterrent effects on misinformation of expanding corporate oversight duties to this context are unclear and the negative consequences for the press are predictable, the likely effects of expanding corporate fiduciary liability to parent corporations vis-à-vis the coverage decisions of their news media organizations should be resisted—even by those who deplore Fox News’ 2020 election coverage. Ultimately, the Essay argues that courts should be reluctant to impose oversight liability in the news company context where executives or boards of directors did not actively direct clearly illegal conduct.

The Essay does not advance a doctrinal First Amendment argument. Nor does it request special and disproportionate exceptions or advantages for the press. It is, rather, a plea that before courts decide to advance anti-misinformation efforts by expanding ordinary corporate law principles to reach oversight of defamation risk in journalistic contexts, as proposed in In re Fox, they consider the potential impact of such an expansion on the ability of press organizations to perform their critical democratic functions.

To be sure, media owners are free to engage in intrusive oversight voluntarily. Nevertheless, the Essay argues that the effects of adopting a legal requirement are likely to lead to accelerated and industry-wide owner oversight over editorial decisions than is reported today. This poses a clear threat to journalistic independence. And since such intrusions are also unlikely to be open and transparent to those outside the organization in many instances, they could well obscure independent assessment of the degree of owner constraint on the outlet’s reporting.

The Essay proceeds as follows: Part I.A describes In re Fox, the Delaware Chancery Court’s denial of the defense’s motion to dismiss the suit for demand futility, and subsequent developments. In so doing, it provides a “mini-overview” on shareholder derivative suits to set the context and clarify the procedural posture of the case for the unfamiliar. Part I.B examines the In re Fox litigation through an anti-misinformation lens. Part II.A sketches board oversight duties under current Delaware corporate law. Part II.B unpacks the expanded board monitoring duties sought by the plaintiffs in In re Fox. Part III explores our dual—and here conflicting—social commitments to press editorial freedom and truthful political dialogue. Part III.A takes the first step by showing how the plaintiffs’ theories of liability in In re Fox do not justify expansion of current doctrine. Part III.B then addresses the dangers of expanded monitoring obligations to press functions—particularly since many news outlets are owned by other entities and since the current politico-legal environment amplifies the vulnerability of the press. Part III.C argues that the anti-misinformation benefits of the doctrinal expansion sought in In re Fox are at best uncertain and likely outweighed by the predictable chilling effects of expanded corporate law oversight duties on press functions. While recognizing the limits of its suggestions, Part III.D ends with some thoughts on other ways to promote press accountability.