Democracy dies in defamation suits? Farrakhan dismissal adds new twist in raging free speech debate

As ABC News donated $15 million to President-elect Donald Trump's nascent presidential library to preempt a defamation judgment at trial and CNN chose to risk a potential 10-figure judgment by refusing to settle with an Afghanistan contractor, a debate is raging among some scholars and pundits over whether news media have gone Chicken Little on the First Amendment.

Media Law Resource Center cofounder Henry Kaufman slammed ABC News for "ceding back yet more truth-free territory to the incoming president" and his "radical vision for a 2nd Term." He said "those who can afford to resist should seriously and systematically carve out a space in the area of defamation that the 47th president will be unable to occupy and command."

Northeastern University journalism professor Dan Kennedy said the network's "shockingly irresponsible" settlement threatens the 1964 press freedom precedent Sullivan in light of two Supreme Court justices already calling for its revisiting.

He trashed "This Week" anchor George Stephanopoulos, who repeatedly and falsely said Trump had been found "liable for rape" despite the host's producer urging him not to use the word "rape," for choosing to remain a "highly compensated apparatchik" rather than become a "hero" by fighting Trump in court.

But despite Zachary Young and his Nemex Enterprises compiling an impressive series of pretrial wins in his defamation case against CNN, the calls by some for all-out legal war against Trump and other aggressive plaintiffs to keep democracy from dying in darkness may be facing a harsh reality.

The 2nd U.S. Circuit Court of Appeals threw out a defamation lawsuit last week by Louis Farrakhan and his Nation of Islam against the Anti-Defamation League and Simon Wiesenthal Center in a summary order, finding that even if Farrakhan alleged a "concrete and particularized injury," as a public figure he'd still have to show "actual malice" by the defendants.

Also a defendant in a defamation suit by Patriot Voice founder John Sabal, ADL got schooled on the distinction between public and private figures last month.

Putting Sabal in ADL's "hate" reports alongside "terrorists and known white supremacists" and saying his ideas "directly call for political violence" plausibly creates "a defamatory impression by … juxtaposing facts in a misleading way," U.S. District Judge Reed O'Connor ruled, deeming the conservative activist a private figure who only must show "negligence." 

That key distinction from the legal lineage of Sullivan – that people with "pervasive fame or notoriety," or who "thrust themselves into the public spotlight on a particular issue or controversy," must show knowing or reckless disregard of a statement's falsity – was lost on The Washington Post and its cited expert in a preview article on the CNN trial.

Florida Circuit Judge William Henry ruled that Young was not a public figure when CNN and "The Lead" host Jake Tapper included him in a 2021 segment on "black market" operators who charge "exorbitant fees" to evacuate "desperate Afghans" following the Biden administration's sudden withdrawal and Taliban's takeover.

Young said CNN's wording tarred him as a "war profiteer" doing business illegally. The network later issued an on-air apology to Young for using "black market," calling it an "error" and saying it "did not intend suggest" he was part of a black market.

"CNN contends that its journalists believed what they were reporting about Young to be true, rebutting the legal standard known as actual malice," media reporter Jeremy Barr wrote, falsely implying that Henry had found Young to be a public figure. 

The jury will have to decide if a "sloppy and tabloid-like" story by CNN is "actual malice," Ohio University media law professor Aimee Edmondson told the Post.

Farrakhan's "sprawling allegations" against ADL, SWC and their principals in a 150-page complaint – defaming him by calling him antisemitic and using third parties to chill his speech – were rejected by the 2nd Circuit.

Decisions by Morgan State University and Vimeo to deny or rescind his "access to speech platforms" are not "fairly traceable" to "ADL's general advocacy," according to the three-judge panel, two nominated by President Trump and the other, President Obama.

The Nation of Islam leader didn't allege an "actual or imminent" threat of his arrest as a result of ADL's alleged role in a "U.S. National Strategy [t]o Counter Antisemitism," the panel said.

His claims that "ADL’s involvement with the New York government" harmed NOI's reputation, chilled its religious activities and "resulted in threatened sanctions" from the state are based on a "tenuous chain of hypothetical events," according to the summary order.

Not only is calling Farrakhan and his organization antisemitic "nonactionable opinions," but those opinions by ADL and CEO Jonathan Greenblatt were "either accompanied by disclosures of Farrakhan’s actual statements or were based on Farrakhan’s statements that were widely reported by the media," the panel wrote. 

He did not "sufficiently allege the falsity of those statements," much less show "a reasonable expectation" that legal discovery would meet the actual-malice threshold for public figures.

CNN's documented behavior around the "black market" segment including Young does not appear to be so clearcut. The network faces risks at trial, with only one out of 40 potential jurors reportedly wary of approving a $1 billion judgment "if the evidence supports it."

Judge Henry has already ruled Young can invoke host Tapper’s comment from November 2023 that Fox News was a "cancer on the democracy we have" by violating its "grave responsibility" to be "fair and honest" in news coverage, to show Tapper believed he had the same obligations. 

He can also show jurors text messages by CNN staff that trashed Young, some with profanity, the Associated Press reported. A CNN executive said Tapper's segment had "more holes than Swiss cheese," Young's lawyer Kyle Roche said in his opening statement, Newsweek reported.

Young himself testified that potential customers stopped seeking his services after the CNN segment, despite having evacuated Afghan women on behalf of Bloomberg and Audible.

"It’s devastating when you’re labeled a criminal all over the world for someone like me," Young told jurors, according to the Post. "What company is going to take that risk, if it’s 'the black market guy’ or the other one that doesn’t have all this stuff attached to it?"