Its a shame I didn’t pay half this much attention in class when I was 40 years younger!
CNN Legal Setback Points to Tougher Times Ahead for Media Companies
In a defamation case, the Eleventh Circuit rejects how CNN and other media companies demanded the special-dismissal provision of Georgia’s anti-SLAPP statute.
NN may still be enjoying its courtroom victory last month saving White House correspondent Jim Acosta’s press pass, but as far as the First Amendment goes, the television news network better be ready to play some defense. That’s because on Friday, CNN suffered a bruising loss in an important appeal that will at the very least make it easier to sue the media in federal court in a handful of states including Georgia, where CNN is headquartered.
The appeal arises from a series of reports in June 2015 on the infant mortality rate for open-heart surgery at West Palm Beach, Florida-based St. Mary’s Medical Center. That series, showcased on Anderson Cooper’s show, asserted that St. Mary’s “death rate” was three times the national average — prompting defamation lawsuits, including from David Carbone, formerly the chief executive at the hospital until he was forced to resign upon CNN’s report. Carbone alleges that CNN made an unfair comparison to hospitals that did both open-heart and closed-heart surgeries, and that a more proper comparison would be adjusted for risk.
CNN contends that Carbone can’t meet the “of and concerning” standard of a defamation suit because the report didn’t mention him by name, and further argues that an academic disagreement about methodology can’t support a defamation claim and that its chosen methodology comparing mortality rates constitutes non-actionable opinion.
However, the specific arguments for the deficiency of Carbone’s claims have taken a back seat to the standard by which a Georgia federal judge had to decide whether the case should move past an initial dismissal motion.
Like many states, Georgia has aimed to deter frivolous litigation implicating First Amendment activity by passing an anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. Under this law, a plaintiff like Carbone is limited in pursuing discovery and a defendant like CNN saves the costly burden of defending — and possibly settling — litigation unless the legal claims show a “probability” of prevailing.
By federal rules, though, plaintiffs merely need to demonstrate the “plausibility” of a complaint on its face in order to advance in lawsuits.
The contrast between probability and plausibility (and rules governing cases in state and federal court) thus amounts to a significantly different evidentiary burden for plaintiffs at the get-go. What happens when because of the diversity of citizenship for the parties, lawsuits raising state-based claims are tried in federal court? Other media companies, fearful of having a tougher time getting out of nuisance lawsuits, supported CNN in amicus briefs arguing that Georgia’s anti-SLAPP law should apply. But the benefits of SLAPP deterrence aren’t just for media companies. For example, President Donald Trump recently used Texas’ anti-SLAPP law to defeat the defamation lawsuit brought by Stormy Daniels, and while Trump has often advocated for looser libel laws, he certainly enjoyed and boasted about the nearly $300,000 in legal fees that Daniels was ordered to pay in the case. Fee-shifting is another common component of state anti-SLAPP laws.
On Friday, Eleventh Circuit Judge William Pryor provided an answer to the question of procedure in the Carbone case.
Rest here:https://www.hollywoodreporter.com/thr-esq/cnn-legal-setback-points-tougher-times-media-companies-1169938