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Eleventh Circuit Judge Absolutely Embarrasses CNN on Misinformation and We Are Here for It – Twitchy

November 12, 2024
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Eleventh Circuit Judge Absolutely Embarrasses CNN on Misinformation and We Are Here for It – Twitchy
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Hang on, folks, because this is going to take a little bit of explaining to do. But we promise, when you understand what exactly is going on, you will see how gloriously this judge reamed out CNN and its lawyers when discussing CNN’s lack of devotion to the truth.





You can start to get a sense of how bad this is went for CNN by reading this post:

But to understand the full context, we have to rewind a bit.

All of this goes back to February, 2021. Back then X was called Twitter because Elon Musk hadn’t bought it, yet. And as regular readers know, Twitter was extremely biased against conservative journalism. In addition to that, Project Veritas was under different management, too, because back then James O’Keefe was still in charge.

Thus, as the opinion states:

On February 11, 2021, Veritas tweeted a video showing its reporters trying to interview Guy Rosen, then a Facebook vice president, outside a residence. Neither the video nor the text of the tweet accompanying the video contained any information related to the street, city, or state where the attempted interview took place. That said, a house number could be seen in the background of the video.

We will note that all of the facts described in the opinion are alleged by Project Veritas and assumed for the sake of argument to be true by the court. If this goes to trial, Project Veritas will have to prove most of this is true.

So, based on that very thin reed of ‘private information’ in the video, Twitter suspended Project Veritas’ account for allegedly violating of its ‘Private information policy.’ In other words, they accused them of doxxing.

In its role as a cheerleader for censorship, CNN decided to report on this event and, at first, the reporting was accurate. From the opinion:

Meanwhile, Brian Fung, for CNN Business, immediately reported that Twitter permanently banned Veritas; he accurately noted, however, that the ban was for violating ‘the platform’s policies prohibiting sharing—or threats of sharing—other people’s private information without consent.’ [Ana] Cabrera similarly tweeted from her own account, stating that Twitter banned Veritas for ‘repeated violations of Twitter’s policies prohibiting the sharing—or threats of sharing—of other people’s private information without consent.’

But, four days later, Cabrera and Brian ‘Potato’ Stelter had a discussion on air about the suspension where things got a lot less truthful. First Cabrera said:

We’re starting to see companies cracking down to try to stop the spread of misinformation and to hold some people who are spreading it accountable, Brian. For example, Twitter has suspended the account of Project Veritas, a conservative activist, uh, activist organization. At least that [is] how they couch themselves with followers . . . . But this is part of a much broader crackdown, as we mentioned, by social media giants that are promoting misinformation.

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The potato (Stelter) responded to her by saying:

Uh, yes . . . Project Veritas, a very controversial conservative group, uh, got swept up in a Twitter policy by violating multiple rules on the site.

Thus, the obvious implication was that Project Veritas was suspended for misinformation, which was false. Project Veritas’ lawyers demanded a retraction and a correction and CNN refused, so Project Veritas sued CNN for defamation.

Now, one defense that one can offer in a defamation case is what we call ‘substantial truth.’ As you probably know, a defamation suit requires (among other things) that the plaintiff assert that the defendant made a false statement of fact about the plaintiff. Thus, truth is a defense and so is the concept of ‘substantial truth.’

Let us give you an example of ‘substantial truth.’ Let’s say the New York Post reported that Senator John Doe took $11,000 in bribes from Jane Roe. So, Doe sued them saying in essence ‘that statement is false! The bribe was actually $10,000!’ Well, a court is likely to say that

it is not necessary to demonstrate complete accuracy to defeat a charge of defamation. It is only necessary that the gist or substance of the challenged statements be true.

(Citations and brackets removed.) Thus, a court would say that the mistake is not enough to change the ‘gist’ of the statement, and therefore, the mistaken statement was ‘substantially true.’ As a result, such a defamation claim would be dismissed.

And we think this is a good rule. Even people who strive to be accurate gets things a little wrong, now and then. News organizations should not be sued every time they get a small detail wrong, if they are basically right. 

But, incredibly, CNN tried to claim substantial truth as a defense in this case. They tried to claim that being suspended by Twitter for alleged doxxing is the substantially the same as being suspended for misinformation.

Which is ridiculous. The problem with doxxing in this case is that Project Veritas published truthful information that Twitter believed could be used to harass or threaten people living at that residence. We think that is a thin reed and their real goal was just plain censorhip, but that’s the argument. By comparison, the problem with misinformation is that it is false. Project Veritas obviously values its reputation for truth-telling. Veritas literally means ‘truth.’ So, if the public believes that they are liars, the damage is obviously going to be different and greater than if the public believes they are doxxers. Duh.

Incredibly, the district court (the trial court) actually bought this argument and dismissed the case. But then it went up to the Eleventh Circuit Court of Appeals, and they basically laughed CNN’s argument out of court. They took more words to do it than this author would have (seriously, we think courts need to embrace saying ‘duh’ now and then) but that is what they did.





But the real fun begins with Judge Carnes’ concurrence. Sometimes a concurrence is saying ‘I agree with the majority but for different reasons’ and sometimes a concurrence is just put in to say something extra. This concurrence falls into the second category: Carnes just wanted to say something extra. You might enjoy reading the whole thing, but it starts with the language from the picture in that Project Veritas post we started off with and let’s just quote it to you now:

If you stay on the bench long enough, you see a lot of things. Still, I never thought I’d see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case. Through its lawyers CNN has urged this Court to adopt the position that under the law it is no worse for a news organization to spread or promote misinformation than it is to truthfully disclose a person’s address in a broadcast.

Yikes. And the absolute pummeling goes on, Judge Carnes writing that: 

All of CNN’s arguments recounted above are, of course, its position articulated and advanced for strategic purposes in this lawsuit. There is a wide gulf between the relatively low value CNN the defendant assigns to truth in its arguments in this lawsuit and the lofty value CNN assigns to truth in the public pronouncements of its leaders, its on-air-people, and others associated with the network.

In other words, ‘your lawyers are saying that being labeled a liar isn’t such a big deal in court, but CNN’s people sing a different tune the rest of the time.’ And then Carnes gets into specific examples of CNN singing that different tune:

‘We are truth-seekers and story tellers.’ CNN Digital Mission.

‘The world needs the truth now more than ever. It needs honest reporting. It needs journalists it knows and trusts.’ CNN Chairman and CEO Mark Thompson.

‘I think we can be a beacon in regaining that trust by being an organization that exemplifies the best characteristics of journalism: fearlessly speaking truth to power . . . . First and foremost, we should, and we will be advocates for the truth.’ Former CNN CEO Chris Licht.

‘The principle is important . . . . I think as journalists it’s incumbent upon us to stand up for truth, really no matter how many millions of people do or do not believe us at any given time.’ CNN Fact-Checker Daniel Dale. … 

‘We need the facts. We are here to report the truth.’ Brooke Baldwin.

‘Why does the truth matter? I mean, that’s almost like saying why is the sky blue and what is the meaning of life? It just does!’ Michaela Pereira. 

‘Without it, what are we left with?’ Kate Bolduan.

‘Everything hinges on the truth. You can’t build anything, you can’t be certain of anything, unless you start with the truth.’ Dr. Sanjay Gupta.





(Footnotes and citations omitted.) These are all good examples, but let’s add one more from a Forbes article:

Yes, the title of the article is ‘How Brian Stelter Has Gone From Media Critic To Truth Crusader’ and it’s as obnoxious as you might imagine:

‘There is a war on truth raging every day, and journalists have been forced to fight some of those,’ says the now 35-year-old [Stelter]. … 

‘Journalists have to call out and correct the lies and smears polluting the air waves,’ he says. In an effort to lead by example, he’s crafted a beat centered on tracking media credibility, fact-checking President Donald Trump and calling out Fox News, which he calls ‘state-supported TV’ in his new book, Hoax: Donald Trump, Fox News and the Dangerous Distortion of Truth.

Now, the legal impact of this decision is that CNN’s dismissal is overturned and, barring a settlement, they will almost certainly have to go through discovery and, more than likely, a full trial on these defamation claims. Bluntly, if we represented CNN we would be begging for a settlement. On the other hand Project Veritas might be salivating at the chance to get discovery and decide to reject any settlement offers.

So … you might want to invest in companies that make popcorn. This might be fun.

But we will also say that wholly apart from any legal issue, CNN has horribly damaged its own reputation in this case. Somehow, they let their lawyers essentially argue that being truthful is not very important, in a case where they falsely accused another media outlet of misinformation.

This author will point out that a lawyer is allowed to advise their clients when a legal argument or strategy might be terrible for reasons that have nothing to do with winning your case. A good lawyer would have said to CNN ahead of time, ‘I could argue that being accused of spreading misinformation is no worse than being accused of doxxing but is that the way you want to win? Do you really want the public to see CNN’s lawyers diminishing the value of the truth in Court?’ We naturally have no idea what discussions CNN’s lawyers had with CNN. For all we know, their lawyers raised the same concerns and CNN said they wanted their lawyers to make this argument, anyway. But this is a classic example of a pyrrhic victory. Sure, they won in the trial court, but they still lost in the circuit court and trashed their reputation for valuing truth in the process. That’s losing more than winning, if you are keeping score.





Of course, James O’Keefe is rightfully taking a victory lap:

And we think it is well-earned. Obviously, he’s no longer with Project Veritas, but it was a vindication of his company’s rights from back when he ran it.

Indeed, we will note that Project Veritas’s posts on the subject got a significant pushback from people crying foul on how it treated O’Keefe, but we won’t focus on that. The issue is CNN’s embrace of dishonesty.

For the record, this was not a New York judge, but the confusion is understandable. For reasons more complicated than they are interesting, while the case is in the South, they were applying New York law.

Finally, let’s take a moment to slay another myth in the media. Obviously, this is a huge loss for CNN, because they have stood against truth in a vain attempt to stop a lawsuit against them. 

But that reminded us of how every now and then we also hear that Tucker Carlson won a lawsuit because Fox successfully argued that no one would take him seriously. Here’s an example of that:

Well, you will be shocked to find out that this wasn’t entirely true.

That case as McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174 (S.D. New York 2020) and here’s what Carlson said:

The relevant details were spelled out in a piece that ran over the weekend in The New York Times under this headline. ‘Prosecutors say Trump directed illegal payments during campaign.’ The gist of the story is this. Trump’s former lawyer, Michael Cohen, has told federal prosecutors that he facilitated payments to two women who said they had affairs with Donald Trump. And then, well actually that’s it. That’s the entire story right there.

Paying these two women, say federal prosecutors and their flacks at NBC News, was a serious crime, a crime worthy of impeachment, if not, indictment. OK. But you might be wondering, how exactly is that criminal? Well, we’re going to explain it to you.

We’re going to start by stipulating that everything Michael Cohen has told the feds is absolutely true. Now, assuming honesty isn’t usually a wise idea with Michael Cohen, but for the sake of argument, let’s do it in this case, everything he says is true, why is what Cohen is alleging a criminal offense?

Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.

Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

Oh, but you’re not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions. You’d do this even though the money in question did not come from or go to Donald Trump’s presidential campaign.

Then you’d claim that Trump and Michael Cohen violated campaign finance law because they didn’t publicly disclose those payments despite the fact that disclosing them would nullify the reason for making them in the first place, which was to keep the whole thing secret.

That is the argument you would make, both in federal court and through your proxies on cable television. It is insultingly stupid. But because everyone in power hates the target of your investigation, nobody would question you, and that’s what’s happening right now.





Carlson was then sued by Karen McDougal, one of the two women who Trump paid off, arguing that she had been defamed by being accused of blackmail and extortion. 

But do you notice the problem, here?

Tucker Carlson was speaking hypothetically. He literally said:

We’re going to start by stipulating that everything Michael Cohen has told the feds is absolutely true. Now, assuming honesty isn’t usually a wise idea with Michael Cohen, but for the sake of argument, let’s do it in this case, everything he says is true, why is what Cohen is alleging a criminal offense?

The most basic requirement of a defamation action is that you need a statement of fact. Jokes, hypotheticals and other situations where your words are not to be taken as literally true don’t count. So it is correct to say no reasonable viewer would take those statements as a serious statement of fact, because he’s engaged in a hypothetical at that particular moment. He was explicitly basing his argument on a hypothetical set of facts that even he himself signaled that he doubted—that is, the claims made by Michael Cohen. So, the court wasn’t saying that you should never believe Tucker Carlson. It was saying that in this particular situation where he explicitly says he is making a hypothetical argument, that no one would assume the hypothetical is true. Because duh.

And not for nothing, but we have written about why law enforcement should look seriously at the possibility of extortion in the Trump/Stormy Daniels case. We are not saying anyone is definitely guilty of anything. We only explain why there is enough concern to make us believe that law enforcement should investigate further.

And now Trump is able to control the Department of Justice and the FBI, maybe someone will finally investigate that.

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