Jake Tapper And CNN Lose Major Motions In Defamation Case By Navy Veteran

Authored by Jonathan Turley,

We previously discussed the defamation lawsuit brought by Navy veteran Zachary Young against CNN and anchor Jake Tapper. Young has been doing well in court and last week he won on additional major issues against CNN. In a pair of orders, the jury will be allowed to award punitive damages and his experts would be allowed to be heard by the jury on the damages in the case. It also found that the Navy veteran was not a public figure and thus is not subject to the higher standard of proof associated with that status.

The punitive damages decision is particularly interesting legally. It could prove financially onerous for the struggling network, which has plunging ratings and has reduced staff.

The court found that CNN’s “retraction” was insufficient to remove punitive damages from the table. In my torts class, we discuss retraction statutes and the requirements of time and clarity. I specifically discussed the CNN case.

The report at the heart of the case aired on a Nov. 11, 2021 segment on CNN’s “The Lead with Jake Tapper” and was shared on social media and (a different version) on CNN’s website. In the segment, Tapper tells his audience ominously how CNN correspondent Alex Marquardt discovered “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.”

Marquardt piled on in the segment, claiming that “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” to flee the country. He then named Young and his company as an example of that startling claim.

The damages in the case could be massive but Young was facing the higher New York Times v. Sullivan standard of “actual malice,” requiring a showing of knowing falsehood or a reckless disregard of the truth. Judge Roberts previously found that “Young sufficiently proffered evidence of actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages.”

The evidence included messages from Marquardt that he wanted to “nail this Zachary Young mfucker” and thought the story would be Young’s “funeral.” After promising to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!” Likewise, CNN senior editor Fuzz Hogan described Young as “a shit.”

As is often done by media, CNN allegedly gave Young only two hours to respond before the story ran. It is a typical ploy of the press to claim that they waited for a response while giving the target the smallest possible window.

In this case, Young was able to respond in the short time and Marquardt messaged a colleague, “fucking Young just texted.”

That record supports a showing of actual malice. However, CNN wanted to avoid punitive damages with a claim of retraction. Under Florida’s Section §770.02(1), a publication seeking this protection must publish a “full and fair correction, apology or retraction.” While the statute does not define “full and fair” it does specify that the retraction shall be “published in the same editions or corresponding issues of the newspaper or periodical” where the original article appeared and ‘in as conspicuous place and type’ as the original, or for a broadcast “at a comparable time.”

In this case, Jake Tapper made the following statement on March 25, 2022:

“And before we go, a correction. In November, we ran a story about Afghans desperate to pay high sums beyond the reach of average Afghans. The story included a lead-in and banner throughout the story that referenced a black market. The use of the term black market in the story was in error. The story included reporting on Zachary Young, a private operator who had been contacted by family members of Afghans trying to flee the country. We didn’t mean to suggest that Mr. Young participated in the black market. We regret the error and to Mr. Young, we apologize.”

However, the court noted:

“The retraction/correction was not made during the other television shows in which the Segment aired. No retraction, correction or apology was posted on any online article or with any social media posting. Defendant’s representatives referred to the statement made on the Jake Tapper show as a correction rather than a retraction.”

Not only did the court find that insufficient, but it menacingly added, “the Court finds that there is an issue of material fact as to whether Defendant published a full and fair retraction as required by §770.02 for the televised segment and no retraction for the social media and online article postings, which could be additional evidence of actual malice.”

This is relatively new ground for the Florida courts and will undoubtedly be appealed in time. For now, punitive damages will remain an option for the jury. The message to news organizations is that minimizing retractions can produce a critical loss of the coverage of the common statutory provisions protecting the media.

It is also worth noting that Young was found to be a private individual and not a “public figure.” After the Supreme Court handed down New York Times v. Sullivan, it extended the actual malice standard from public officials to public figures. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974), the Court wrote:

“Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.”

The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).

In creating this higher burden, the Court sought to create “breathing space” for the media by articulating that standard for both public officials and public figures. Public figures are viewed as having an enhanced ability to defend themselves and engaging in “self-help” in the face of criticism. The Court also viewed these figures as thrusting themselves into the public eye, voluntarily assuming the risk of heightened criticism. I have previously written about the continuing questions over the inclusion of public figures with public officials in tort actions.

However, the court found that Young did not trip this wire.

“Young’s limited posts do not constitute him thrusting himself ‘to the forefront’ of the Afghanistan evacuation ‘controversy.’ In total, Plaintiffs worked for four companies and evacuated 22 people from Afghanistan. Per Defendant’s Segment, ‘[t]here [were] fewer than Page 13 of 34100 American citizens in Afghanistan who [were] ready to leave’ and ‘countless Afghans, including thousands who worked for or aided the US . . . who are frantically trying to leave.’ While Young was clearly trying to advertise his services, it can hardly be said that he played a sufficiently central role or was at the forefront in being able to influence the resolution of all those unable to escape Afghanistan. He was not going to get all these thousands of people out, nor was he ever intending to as he (according to his posts and testimony) was only assisting those with sponsors. He also was not going to convince the Taliban to let these folks leave the country. As such, Plaintiffs do not meet the test for this second suggested controversy to be labeled as limited public figures.”

The court also ruled that Young would be allowed to keep his economic damages expert witness, Richard Bolko, a ruling that, in conjunction with the punitive damages matter, could spell real trouble for CNN.

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Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”