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

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.