Joel Rich and Mary Rich v. Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky, No. 18-2321-cv (2nd Cir.). District Court reversed and case remanded September 13, 2019; Ed Butowsky v. Folkenflik, NPR, Inc., NPR.ORG, et al, No. 4:18-cv-0442 (E.D.Tex.). Magistrate’s Recommendation to Deny Motion to Dismiss adopted August 7, 2019; Wheeler v. Twenty-First Century Fox, et al., No. 17-cv-5807, 322 F. Supp. 3d 445 (S.D.N.Y. 2018).
News, and News and Speculation About the News. The murder of Democratic National Committee (DNC) staff member Seth Rich in 2016 precipitated an explosion of rumors about Rich’s death, including speculation that he had divulged DNC emails and strategies to non-mainstream media entity WikiLeaks.
Mainstream media joined in the fray, exploring and elaborating in ways that Rich’s parents assert caused them emotional damage. Fox News and its reporter and commentator approached Rich’s grieving and aggrieved parents, who were disturbed that their son’s death would sully his name, and induced the Riches to hire private investigator Ed Wheeler, recommended and paid for by Butowsky.
As a condition of his engagement, Wheeler promised not to disclose any information about his investigation absent the Riches’ consent.
Nonetheless it is alleged that Butowsky and Wheeler worked together, meeting with high level Washington communications staff and promising to keep the White House informed of their investigation.
In anticipation of publication, Fox messaged Wheeler about intelligence sources and pressures to publish, urging Wheeler to become the public source of the WikiLeaks story. Fox not only published a story using Wheeler as a source, but Fox also recounted Wheeler’s breach of his agreement with the distraught parents. Wheeler next said that his sources were Fox reporter Malia Zimmerman and Ed Butowsky.
Butowsky is said to have continued to contact the Riches, allegedly to inform them that Zimmerman had located their son’s killer. Butowsky appeared in the media with commentary about the WikiLeaks allegations.
The New York Litigation. The Riches sued Fox, its reporters and its commentator in the Southern District of New York. The Second Circuit Court of Appeals recently reinstated the Riches’ claims, holding that it is of no consequence that the parents’ action for intentional infliction of emotional distress can be seen as a proxy for the defamation action that died with their son.
Seriatim As Serious as Single Incident Harm. The federal appellate court rejected the notion that the intentional infliction of emotional distress must be established by a single incident: harms that unfold serially, perhaps not sufficient individually to reach the high bar of harm required to establish intentional infliction of emotional distress, may cumulatively be so damaging as to be legally cognizable.
As the known existence of a valid contract between Wheeler and the Riches was not contested, interference occurring before and continuing after formation of the agreement does not preclude establishing but-for causation.
Privilege Preclusion Inapt. The court declined to opine on whether newsgathering and its exigencies could excuse interference with contractual relations, observing that what the court perceived as a malicious act — providing an investigator ostensibly for the bereaved but in reality for the media — would not be susceptible to establishing a justification for interference in the Rich – Wheeler contract.
More to Come. Media fascination with the death of Seth Rich and its sequelae did not end with the circular accounts issued by Fox, its reporter and commentator, and its investigator.
Wheeler, threatened with suit by the Riches, sued multiple media defendants and associates for defamation, including Butowsky, and in particular alleged that Fox’s reporter published fabricated quotations attributed to Wheeler. Wheeler did not meet with success: his case in the Southern District of New York was dismissed at the pleading stage.
The Texas Litigation. Butowsky sued National Public Radio (NPR) and its reporter. Butowsky did not pursue the media law firm and Wheeler’s counsel, who Butowsky avers is engaged in a legal campaign against Fox.
Butowsky’s complaint elaborates upon allegations in the Rich complaint that interest and involvement in the investigation of Rich’s death reached the highest levels of the executive branch.
Butowsky points to NPR’s reporter’s participation in an interview that offered the reporter’s views on the stories, including noting Fox’s retraction and offering journalistic lessons from the story.
Dismissal Not Warranted Where Privilege May Not Be Present. A magistrate, and later a judge in the U.S.D.C. for the Eastern District of Texas denied the media defendants’ motion to dismiss, observing that the fair report and/or fair comment privileges that y serve as a defense to defamation would not permit dismissal as a matter of law, particularly where the privilege cannot be conferred by the media of its own accord by commenting on its own reporting. Not only is this form of self-insulation not permissible, where there is malice, the protections of these reporting privileges may be lost.
The Heart of the Matter Is What is at Stake. The magistrate observed that while the burden remains on the plaintiff to establish that any report was false, this may be done by establishing not that each statement published was false but that in the aggregate or in the manner of presentation, the “gist” of the publication was not substantially true.
Opinion Not a “Get Out of Jail Free” Card. Defamation may be intrinsic or extrinsic, explicit or implicit, and the assertion that opinion is not defamatory will not prevail if the underlying statements said to support the opinion are false or recklessly published.
The Magistrate underscored the limitations on the opinion exemption from defamation, observing that implications from false assertions of fact are not insulated simply because an opinion is wrapped around them.
Impressions Count. Although a publisher cannot be liable for every inference that might be drawn from a story, that principle does not hold where a publication in its entirely creates a particular communicative impression. The arrangement and presentation of information factors into the analysis.
No Doubt About Who They Had in Mind. It does not matter that the subject of a defamatory statement is not explicitly mentioned if it is inescapable that the defamed person is the subject of the report.
Public Figure or Limited Public Figure Status Not Yet Established. The Magistrate was not persuaded that on motion to dismiss that the defendants could establish that Butowsky, a well known financial expert and media commentator in his own right, is a limited public figure for purposes of application of the higher standards of proof that apply to such a person. Nonetheless, the complaint provides allegations sufficient to plead malice.
Investigation, Failure to Investigate, and Bias. Plaintiff’s assertion that NPR adopted and published a media lawyers’ narrative without verification and with information that would cast that narrative in doubt, could establish malice.
The Magistrate stressed that a failure to investigate alone would not establish malcie, but turning a blind eye to pertinent information could. This might be shown by preselecting information conforming to a particular story, having preconceived, ideas, repetition of known false ideas, or other conduct proceeding from doubtful material in purposive avoidance of the truth.
Failure to Demand Retraction Will Not Defeat Claim.The Magistrate rejected the assertion that the state’s Defamation Mitigation Act precludes recovery. The act’s requirement that plaintiff demand retraction before suing for defamation is a limitation on punitive damages, not a bar suit, particularly if the sense is that damage is so extensive that retraction would be unavailing.
The Story Continues in Courts. Seth Rich’s surviving parents and Butowsky’s cases proceed in New York and Texas at this writing. Wheeler’s case against Twenty First Century Fox was dismissed in August, 2018, and there is no record of appeal having been taken. The Southern District of New York found that Wheeler had no claim for defamation, as none of the statements in issue could be shown to be demonstrably false.