Dershowitz faces some hurdles in defamation case against CNN

On September 15, lawyers for emeritus Harvard Law School Professor Alan Dershowitz filed an eight-page, $300-million defamation complaint against Cable News Network in the U.S. District Court for the Southern District of Florida. The gravamen of Dershowitz's complaint is that CNN intentionally and selectively edited a portion of the argument presented by him during his January 29 defense of President Donald Trump before the U.S. Senate to make it appear that Dershowitz "believed and argued that as long as the President believes his reelection is in the public interest, that he could do anything at all -- including illegal acts -- and be immune from impeachment."

The complaint characterizes this assertion as "preposterous and foolish on its face" and says it was designed to "falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind." It further asserts that CNN's "decision to omit the crucial word 'illegal' from Professor Dershowitz's argument had the functional equivalency of doctoring the recording because it had the practical effect of reversing the meaning."

The lawsuit presents a number of hurdles that Dershowitz must surmount.

First, since 2015, Florida (like California and over a dozen other states) now has a fairly robust statute prohibiting strategic lawsuits against public participation (SLAPP). Florida Statutes Section 768.295 proscribes the filing of any lawsuit "without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue." This anti-SLAPP law defines such protected speech as including any statement made "in or in connection with a ... television program, audiovisual work, ... news report, or other similar work." Once an anti-SLAPP motion is filed, the court is obligated to set a hearing "at the earliest possible time" and, unless the plaintiff can demonstrate the lawsuit's "merit," the action is dismissed and the prevailing party is entitled to recover its reasonable attorney fees and costs.

Ordinarily, such an anti-SLAPP motion would be a powerful tool against Dershowitz's complaint. However, since his lawsuit was filed in Florida federal court premised upon diversity jurisdiction, there is apparently an open question about whether that court will allow such a motion to be brought consistent with the Federal Rules of Civil Procedure. Recently, in 100 Plus Animal Rescue, Inc. v. Butkus, 2020 WL 5514404 (S.D. Fla., Aug. 15, 2020), U.S. District Judge Marcia Cooke was able to avoid deciding this issue by granting defendant's summary judgment motion under Rule 56. Judge Cooke's footnote 2 "identified several federal appellate decisions that have largely, but not unanimously, upheld the application of various state anti-SLAPP statutes in diversity actions." However, she further noted that the defendant "has not apprised the undersigned of any federal decision addressing the applicability in diversity actions of Florida's anti-SLAPP statute, and the court has not located any." The only additional potential insight into the resolution of this threshold question may come from another case with which CNN's lawyers are doubtless familiar -- Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018). In that ruling, the 11th U.S. Circuit Court of Appeals (whose jurisdiction includes the Florida federal courts) found that the "motion-to-strike procedure" created by Georgia's anti-SLAPP statute "cannot apply in federal court." Though there are some significant procedural and substantive distinctions between Georgia's and Florida's anti-SLAPP statutes that will doubtless be grist for the litigation mill. Thus, the first hurdle that Dershowitz's attorneys may have to surmount at the very outset is contesting the propriety of any potential CNN dismissal motion premised upon Florida's anti-SLAPP statute.

A more intriguing problem presented by the Dershowitz complaint is its explicit reliance upon the U.S. Supreme Court's decision in Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991). At the outset of that opinion, Justice Anthony Kennedy described the question before the court as one in which the author "with full knowledge of the inaccuracy, used quotation marks to attribute to him comments he had not made." By contrast, in Dershowitz's case, it is difficult to identify the "inaccuracy" since Dershowitz clearly made the statements he criticizes CNN for broadcasting. At no time does the complaint allege that CNN put words in Dershowitz's mouth or that it somehow manipulated the video of Dershowitz's U.S. Senate appearance by splicing out or otherwise excising any words from a given clip of his lengthy argument.

Instead, the gravamen of the complaint rests upon "CNN's decision to omit the part of plaintiff's argument in which he prefaced his upcoming remarks with the fact that it did not apply to illegal acts." Dershowitz then blames CNN's talk show hosts and pundits with "intentionally misleading" viewers by "airing only the chosen snippet of the video." However, the complaint does not deny that CNN aired the entirety of Dershowitz's argument -- unedited and in real time -- and notes that "CNN's employees, Wolf Blitzer and Jake Tapper, played the entire clip properly." Moreover, CNN may well assert that the uses which certain of CNN's other on-air personalities subsequently made of portions of Dershowitz's argument represent classic opinions whose basis -- whether or not that basis was taken in its fullest context -- was fully apparent to any viewer. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) ("a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection"). Consequently, CNN can be expected to assert that even if any of its on-air commentators misconstrued or misinterpreted Dershowitz's truncated statement, they were not doing so based upon anything other than the words themselves -- rather than from any "false factual connotation" flowing from those words.

Finally, of course, and particularly given the live wall-to-wall nature of CNN's coverage of President Trump's Senate impeachment trial, there is no conceivable doubt that Dershowitz is a quintessential public figure. Consequently, under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, he must demonstrate "'actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." While the complaint pays obeisance to this substantial evidentiary hurdle, it is less than clear how Dershowitz can more specifically plead -- and then prove, as he must, by "clear and convincing evidence" (Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)) -- that those who commented upon his own words were doing so with knowing falsity or reckless disregard for the truth. In Masson, the Supreme Court concluded that "a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity ... , unless the alteration results in a material change in the meaning conveyed by the statement." Thus, Dershowitz's attorneys will not only have to show that the exact words that multitudes of viewers heard him speak were deliberately altered, but also that any such deliberate alteration materially changed the meaning of that which he himself said. That may prove to be a tall order. 