Flynn Family’s SLAPP Suit Against CNN Slapped Down By Judge – Above the Law

(Photo
by
Alex
Wroblewski/Getty
Images)

MAGA
SLAPP
suits
apparently
aren’t
going
out
of
style,
but
yet
another
one
has
been
tossed
out
of
court.

Remember
lawyer Steven
Biss?
He
was
the
grand
filer
of
tons
of
SLAPP
suits
for
the
MAGA
crowd
against
media
outlets.
He
had
quite
a
losing
streak,
with
nearly
all
of
those
cases
failing.
Last
fall,
I
heard
some
rumors
that
Biss
had
either
died
or
was
facing
serious
health
problems.
In
September,
reporter
Josh
Gerstein
broke
the
news
that
he’d had
a
stroke.
In
January,
Biss’
law
license
was
suspended,
not
for
all
of
his
frivolous
cases,
but
“on
impairment
grounds.”

However,
many
of
his
cases
were
handed
off
to
another
MAGA
lawyer,
Jesse
Binnall,
who,
at
one
time,
was
“Trump’s
top
election
fraud
lawyer,”
to
give
you
some
sense
of
his
worldview
and
credibility.

Anyway,
handing
off
the
cases
to
Binnall
hasn’t
made
them
work
out
any
better.
We
had
covered
how
Biss
had filed
a
lawsuit
on
behalf
of
Jack
&
Leslie
Flynn,
the
brother
and
sister-in-law
of
disgraced
former
(briefly)
National
Security
Advisor
Michael
Flynn.
The
lawsuit
was
against
CNN,
claiming
that
a
segment
they
had
aired
falsely
associated
him
with
the
QAnon
wackjob
conspiracy
theory.

CNN
had
aired
the
segment,
which
was
mostly
focused
on
a
gathering
of
QAnon
adherents.
During
the
segment,
CNN
briefly
shows
a
video
that
was
taken
at
a
barbecue,
where
Michael
Flynn
is
standing
alongside
his
brother
Jack
and
sister-in-law
Leslie,
with
their
right
hands
raised,
and
where
Michael
Flynn
says
“where
we
go
one,
we
go
all,”
a
saying
that
has
been
associated
with
QAnon
followers.

As
that
clip
played,
the
voiceover
said, “‘Where
we
go
one,
we
go
all’:
an
infamous
QAnon
slogan
promoted
by
Trump’s
first
National
Security
Advisor,
Michael
Flynn.”

According
to
the
lawsuit,
this
was
defamatory
to
Jack
and
Leslie.
This
was
laughable,
as
we
pointed
out
at
the
time.
The
CNN
report
doesn’t
even
talk
about
Jack
or
Leslie,
and
they
did
stand
there
while
Michael
Flynn
said
the
slogan.
Hilariously,
Biss
tried
to
argue
that
“where
we
go
one,
we
go
all”
was
not
a
QAnon
slogan,
pointing
out
that
John
F.
Kennedy
had
said
it.
But,
it’s
not
about
who
said
it
first,
it’s
about
what
it’s
associated
with.

CNN
pushed
back
hard
on
the
lawsuit,
also
noting
that
Jack
Flynn
himself
had
retweeted
the
same
phrase.
Unfortunately,
while
the
court
dismissed
parts
of
it
at
the
motion
to
dismiss
stage,
it
allowed
part
of
the
case
to move
on
to
summary
judgment.
The
defamation
claims
were
dismissed,
but
the
“false
light”
claims
(basically
defamation
claims
in
disguise)
were
allowed
to
go
through
the
lengthy
summary
judgment
process.
We
pointed
out
at
the
time
(as
did
Eric
Goldman)
that
there
were
plenty
of
reasons
to
toss
this
case
at
the
earlier
stage,
but
the
judge
wasted
everyone’s
time
and
money
by
letting
it
go
one
more
round.

At
some
point,
the
case
got
reassigned
to
a
new
judge,
and
that
judge
has tossed
the
remaining
false
light
claim
at
summary
judgment.
It
appears
that
the
Flynns’
new
lawyer
didn’t
make
the
case
any
better.

Here,
the
Flynns’
claim
is
that
CNN
called
them
“QAnon
followers.”
See
Dkt.
197
at
18–21;
Dkt.
221
at
1.
Although
CNN
never
overtly
said
that,
a
false
fact
may
be
implied.
See
McCann
v.
Shell
Oil
Co.,
551
A.2d
696,
697–98
(R.I.
1988).
The
Court
assumes
without
deciding
that
the
video
was
capable
of
implying
that
the
Flynns
were
QAnon
followers.
That
implication,
“once
defined,
is
treated
like
a
claim
for
direct
defamation.”
Cheng,
51
F.4th
at
444;
see
also
Biro
v.
Conde
Nast,
883
F.
Supp.
2d
441,
468–69
(S.D.N.Y.
2012).
In
other
words,
the
Court
will
analyze
the
issue
as
if
CNN
called
the
Flynns
“QAnon
followers”
explicitly.
But
determining
“whether
a
communication
is
capable
of
bearing
a
particular
meaning”
is
only
the
first
step.
Restatement
(Second)
of
Torts
§
614(1)(b).
It
is
still
a
matter
for
the
Court
to
decide
“whether
that
meaning
is
defamatory.”

It
was
not.
Calling
the
Flynns
“QAnon
followers”
was,
in
defamation
law–speak,
an
opinion….

Here,
the
statement
neither
stated
nor
implied
defamatory
facts,
so
it
is
a
nonactionable
opinion.
This
conclusion
is
based
on
two
independent—but
mutually
reinforcing—grounds.
4
First,
the
statement
is
unverifiable.
And
second,
it
was
a
comment
on
disclosed,
nondefamatory
facts.
Both
characteristics
ensure
that
the
reasonable
viewer
understands
that
the
statement
is
the
speaker’s
opinion
(rather
than
stating
facts)
and
that
the
speaker
is
not
harboring
additional,
undisclosed
facts
to
justify
the
statement.
So
Rhode
Island
law
and
the
First
Amendment
demand
its
protection

The
court
goes
on
to
note
that
this
was
clearly
a
statement
on
matters
of
public
concern.
The
Flynns’
attempt
to
get
around
that
by
claiming
there
was
no
“legitimate
public
interest”
in
the
story
fails
easily:

The
speech
here
plainly
fits
the
bill.
QAnon
itself
is
a
topic
of
public
concern,
and
the
segment
also
reported
on
the
connections
between
QAnon,
January
6,
and
former
president
Trump.
The
Flynns
acknowledge
that
the
report
as
a
whole
was
on
matters
of
public
concern.
Dkt.
197
at
25–
26.
They
argue
that
including
them
in
the
report
did
not
“further[]”
any
“legitimate
public
interest”
because
(1)
they
are
not
public
figures
and
(2)
“the
clip
does
not
relate
to
the
public
concern
that
is
the
subject
of
the
Report.”
Id.

The
first
argument
misunderstands
the
law.
The
public-figure
and
public-concern
tests
have
little
to
do
with
each
other.
Compare
Lerman
v.
Flynt
Distrib.
Co.,
745
F.2d
123,
137
(2d
Cir.
1984),
with
Snyder,
562
U.S.
at
453.
And
the
second
argument
fails
because
it
presumes
the
Flynns’
favored
conclusion
on
the
merits.
Connections
between
QAnon
and
those
in
power
were
the
core
public
concern
addressed
by
the
report.
The
clip
of
Michael
Flynn—President
Trump’s
first
National
Security
Advisor—saying
a
phrase
associated
with
QAnon
certainly
addresses
that
concern,
even
if
the
Flynns
think
it
was
totally
innocent.

It
also
appears
(unsurprisingly)
that
the
Flynns’
lawyers
(unclear
whether
this
part
was
Biss
or
Binnall)
were,
well,
not
good.
In
particular,
the
Flynns
relied
heavily
on
statements
they
mischaracterized
to
argue
that
to
believe
in
QAnon
means
believing
in
a
very
specific
set
of
beliefs.
Then,
if
they
could
show
they
didn’t
believe
in
all
of
those
things,
they
claimed
it
could
be
shown
that
the
statement
was
false
and
defamatory.

Yet,
as
the
court
notes,
the
Flynns’
insistence
on
a
long
list
of
necessary
beliefs
to
be
a
supporter
of
QAnon
is
based
on
the
Flynns’
lawyers mischaracterizing
testimony:

Yet
they
have
mischaracterized
that
testimony.
The
quoted
material
in
the
Flynns’
filings
is
almost
entirely
from
the
statements
of
the
attorney
conducting
the
deposition,
which
the
witness
does
not
endorse.
From
the
outset,
the
witness
makes
clear
that
QAnon
is
a
“fluid”
set
of
beliefs,
and
he
rejects
that
there
are
any
unifying
features
other
than
some
“memes”
and
“slogans.”
Dkt.
198-1
at
20:2–24:22.
Later,
the
witness
says
that
“parts”
of
a
statement
about
QAnon’s
origins
and
effects
are
accurate,
but
he
still
resists
that
there
are
unifying
beliefs
or
behaviors.
Id.
at
32:10–
36:25.
Later
still,
the
witness
again
rejects
that
QAnon
has
a
stable
core,
instead
noting
that
its
“beliefs
can
be
broad
and
evolving.”
Id.
at
87:12–89:2,
90:3–91:18.
Finally,
the
witness
notes
that
even
the
nature
and
identity
of
Q—surely
what
one
would
think
of
as
forming
the
core
of
QAnon—
are
unsettled.
Id.
at
53:22–54:4.
Even
read
in
the
light
most
favorable
to
the
Flynns,
the
deposition
(in
context)
clearly
supports
the
idea
that
QAnon
is
an
amorphous,
undefined
concept

Yeah.
It’s
not
a
good
idea
to
totally
misrepresent
testimony.
Judges
don’t
like
that.
In
fact,
at
the
end
of
the
ruling,
Judge
Arun
Subramanian
even
included
an
appendix
with
nearly
five
pages
of
the
deposition
to
show
the
actual
context
that
the
Flynns
misrepresented
in
their
filings.

It
seems
that
the
Flynn’s
argument
was
about
as
solid
as
QAnon’s
own
grasp
on
reality.

Hell,
even
the
Flynn’s
own
expert
witness
seemed
to
undermine
the
crux
of
their
argument:

And
CNN
points
to
other
record
evidence
to
shore
up
this
point.
CNN’s
expert
testified
that
QAnon
is
“elastic
and
difficult
to
define,”
lacks
a
“coherent
belief
system,”
and
that
there
“is
no
definition
[of]
what
a
QAnon
follower
is,
or
what
‘following’
QAnon
actually
entails.”
Dkt.
184-
6
at
4–5,
7. Similarly,
the
Flynns’
expert
agreed
that
QAnon
is
an
“a
la
carte
belief
system,” “not
an
[o]rthodoxy,”
and
there’s
no
“formula
for
how
you
indicate
QAnon
belief.”

And,
again,
the
Flynns’
legal
team
did
the
pair
no
favors:

The
Flynns’
filings
themselves
reinforce
this
theme.
The
very
first
paragraph
of
the
amended
complaint
describes
QAnon
as
“a
far
right-wing,
loosely
organized
network
and
community
of
believers
who
embrace
a
range
of
unsubstantiated
beliefs.”
Am.
Compl.
¶
1.
And
rather
than
grounding
the
meaning
of
“QAnon”
in
something
concrete,
their
other
descriptions
just
add
more
value
judgments
to
the
mix.
Id.
¶¶
2–3,
15,
19,
23(a),
26
(describing
QAnon
as
“right-wing,”
a
“deranged
conspiracy
cult,”
“based
on
age-old
racist
and
anti-Semitic
beliefs,”
promoting
“ancient
and
dark
biases
and
bigotry,”
“detached
from
reality,”
having
an
“utter
disregard
for
the
facts,”
“mentally
ill
and
crazy,”
“dangerous,”
“violent,”
“racist,”
“extremist,”
“insurrectionist,”
a
“domestic
terrorist
organization,”
and
stating
that
“trusting
the
plan
[is]
an
important
part
of
QAnon
belief”
(internal
quotation
marks
omitted)).

Perhaps
one
could
argue
(though
the
Flynns
don’t)
that
the
report
itself
gives
“QAnon
follower”
some
fixed
meaning.
But
it
doesn’t.
At
one
point
in
the
video,
a
commentator
says
QAnon
is
about
“community”:
“One
of
my
big
takeaways
from
attending
the
Q
conference
is
that
the
QAnon
movement
is
about
so
much
more
than
just
the
predictions
…
it’s
about
the
community.
The
people
there
felt
like
they
were
part
of
something
big
and
revolutionary
and
that
they
were
opposing
absolute
evil.”

The
court
notes
that
even
the
term
“follower”
is
ambiguous
and
not
something
capable
of
being
true
or
false
(and
thus,
an
opinion):

At
its
root,
whether
someone
is
a
“follower”
is
deep
in
the
political
thicket:
“When
used
in
political
discourse,
terms
of
relation
and
association
often
have
meanings
that
are
debatable,
loose,
and
varying,
rendering
the
relationships
they
describe
insusceptible
of
proof
of
truth
or
falsity.”
Egiazaryan
v.
Zalmayev,
880
F.
Supp.
2d
494,
512
(S.D.N.Y.
2012)
(internal
quotation
marks
omitted)
(applying
Buckley
to
the
statement
that
someone
was
a
“leader”
of
a
political
party).
Similarly,
the
Flynns
tried
to
show
that
QAnon
has
a
belief
system
by
quoting
the
reporter’s
testimony
that
“QAnon
ha[s]
become[]
like
a
religion.”
Dkt.
197
at
4
(citation
omitted).
But
that
comparison
precisely
illustrates
the
problem.
All
the
difficulties
discussed
above
show
why
courts
are
loath
to
decide
who
is
a
true
believer.
Cf.
Hernandez
v.
Comm’r,
490
U.S.
680,
699
(1989)
(“It
is
not
within
the
judicial
ken
to
question
the
centrality
of
particular
beliefs
or
practices
to
a
faith,
or
the
validity
of
particular
litigants’
interpretations
of
those
creeds.”).

Also,
to
make
this
even
crazier,
the
court
notes
that
adherents
to
QAnon
are
told
to
deny
that
they
follow
QAnon:

Finally,
there
is
also
a
unique
twist
to
QAnon
followership.
It
is
undisputed
that
“Q
instructed
his
followers
to
deny
being
QAnon
followers.”
Dkt.
212
¶
7.
If
a
QAnon
follower
is
asked
under
oath
whether
she
is
a
QAnon
follower,
what
is
the
honest
response?
And
how
should
the
jury
interpret
it?
This
problem
feels
a
bit
like
trying
to
hold
a
trial
on
opposite
day:
Saying
yes
violates
a
supposed
tenet
of
followership.
Does
that
mean
she’s
not
a
true
believer,
making
her
answer
untrue?
If
she
answers
no,
is
she
really
lying?
After
all,
Q
told
her
that
“[t]here
is
no
‘Q[A]non.’”
Id.
Exactly
how
one
untangles
this
brain
teaser
isn’t
dispositive;
it’s
just
another
point
of
ambiguity.

Then
the
court
notes
that
even
if
one
could
“verify”
whether
or
not
someone
was
a
QAnon
follower,
it
still
wouldn’t
be
defamatory.
This
is
because
it’s
a
conclusion
based
on
disclosed
facts.

Calling
the
Flynns
“QAnon
followers”
was
a
conclusion
based
on
the
following
disclosed,
nondefamatory
facts:
(1)
the
Flynns
stood
with
Michael
Flynn,
their
right
hands
raised,
as
he
recited
the
phrase
“where
we
go
one,
we
go
all,”
and
(2)
the
phrase
was
a
QAnon
slogan.
The
Flynns
don’t
fight
these
facts.
On
the
first
part,
they
haven’t
challenged
the
clip’s
authenticity.
As
to
the
second,
they
say
they
didn’t
know
that
the
phrase
was
a
QAnon
slogan.
Dkt.
212
¶¶
9–12.
But
that’s
irrelevant.
They
don’t
contest
that
the
phrase
was
in
fact
a
QAnon
slogan,
and
true
statements
are
nondefamatory.
See
id.;
see
also
Dkt.
221
at
3
(the
Flynns’
submission
referring
to
“the
now-infamous
QAnon
slogan”);
Gross
v.
Pare,
185
A.3d
1242,
1247
(R.I.
2018)
(“[T]he
events
upon
which
[the
plaintiff’s
false-light]
claim
is
premised
actually
occurred;
therefore
we
cannot
logically
conclude
that
any
publication
regarding
the
dispute
at
issue
was
false
or
fictitious.”).

The
Flynns
disagree
that
the
video
included
a
factual
basis
for
their
being
QAnon
followers.
Dkt.
221
at
3.
Yet
this
argument
is
in
tension
with
the
most
basic
part
of
their
case:
that
a
reasonable
viewer
would
infer
from
the
video
that
they
were
QAnon
followers.
The
reasonable
viewer
must
have
some
factual
basis
to
draw
the
inference.
It
is
not
enough
that
they
merely
appeared
in
a
video
that
also
included
QAnon
followers.
Several
reporters
and
news
anchors
appear
in
the
video,
but
it’s
obvious
from
context
that
the
video
isn’t
calling
them
“QAnon
followers.”
And
as
noted
above,
the
Flynns
admit
that
they
were
“friendly”
and
partly
“aligned
with
QAnon,”
often
posting
or
reposting
QAnon-related
content…..

And
thus,
the
motion
for
summary
judgment
by
CNN
is
granted,
and
the
case
is
dismissed.
Another
SLAPP
case
tossed.
It’s
just
too
bad
it
didn’t
come
much
earlier
in
the
process.

Flynn
Family’s
SLAPP
Suit
Against
CNN
Slapped
Down
By
Judge

+263 242 744 677

4 Gunhill Avenue,

Flynn Family’s SLAPP Suit Against CNN Slapped Down By Judge – Above the Law