OP-ED: Here's what a costly lawsuit against investigative reporting looks like
While disinformation spreads, one defamation lawsuit stands out for its case against investigative reporting.
By D. Victoria Baranetsky and Alexandra Gutierrez
When Smartmatic brought a $2.7 billion libel lawsuit against Fox News last month, some hailed defamation law as a possible panacea to disinformation. After Fox competitor Newsmax reacted to the suit by cutting off a guest’s baseless histrionics on air, Ben Smith, the New York Times media columnist and former editor-in-chief of BuzzFeed News, praised the suit as a model for discouraging the news media’s amplification of falsehoods, and its plaintiff as “an unlikely figure with the power to put the genie back in the bottle.”
However, even in today’s climate of misinformation, we should remain wary of defamation lawsuits. (As Smith might remember, BuzzFeed News successfully defended itself against a potentially devastating defamation lawsuit just three years ago, after the outlet published the infamous Steele Dossier.) While defamation has a rightful place in American law and serves a function in discouraging the spread of lies, advocates for a free press should be cautious against embracing it as a cure for our media ecosystem’s current problems. As Harvard Law professor Yochai Benkler recently noted, the Smartmatic lawsuit may be a “useful corrective…[but] we have to be very cautious in our celebration of these lawsuits, because the history of defamation is certainly one in which people in power try to slap down critics” and silence the truth. An ongoing libel lawsuit against Reveal, our non-profit newsroom, which is run by The Center for Investigative Reporting, is a case in point.
Since 2016, Reveal has fought a libel case brought by Planet Aid, an international charity that received US government funds for aid programs. Planet Aid’s suit focuses on an almost two-year-long Reveal investigation that concluded that the charity had ties to a cult-like group and raised questions about the charity’s spending. The investigation attracted the attention of the British government, which cut off funding to Planet Aid’s subcontractor and launched a probe into suspected foreign-aid fraud. Over the course of this lawsuit (and despite numerous depositions of editors and journalists and millions spent on attorney fees) Planet Aid has been unable to cast doubt on the veracity of Reveal’s findings or identify a single error in Reveal’s reporting. This lawsuit is not an outlier: for every Smartmatic-type case lauded as a corrective to misinformation, there are multiple ones like Planet Aid’s against Reveal that attack rigorous and truthful reporting.
A federal judge will soon decide whether Planet Aid’s lawsuit should be thrown out as frivolous. But even if Reveal wins, the victory will be pyrrhic, as Planet Aid has already extracted millions of dollars and years of resources from Reveal that could have been spent on producing journalism.
Planet Aid’s suit is part of a trend in bank-breaking cases against the US press that has become pronounced over the past decade. The bellwether was Hulk Hogan’s 2013 lawsuit against Gawker, which sought more than $100 million in damages for the blog’s publication of a sex tape featuring the wrestler. Although this case concerned a privacy claim and involved some unsympathetic facts, press advocates worried that aggrieved subjects might use defamation law to the same ends—and against more traditional public interest journalism. Writing for CJR, Trevor Timm, executive director of the Freedom of the Press Foundation, described the case as “structured...to do maximum damage to Gawker,” and called the case a “blueprint for destroying a news organization.” These fears were not unfounded. Not long after a jury returned a bankruptcy-inducing verdict against Gawker in 2016, ABC News settled a billion-dollar defamation lawsuit brought by a South Dakota-based beef production company—over the news outlet’s brief description of beef by-product as “pink slime”—at a cost of $177 million, even though ABC maintained that its reporting was factually accurate.
In such costly lawsuits, litigants have a multitude of procedural tricks that enable them to get payback for stories they don’t like, wreak havoc on newsrooms and potentially scare off other outlets from similar reporting. What started as a blueprint has now turned into a thick playbook, whose moves are evident in the case against Reveal. Here are a few of the procedural tactics that a hostile plaintiff can employ:
File a really long complaint with copious other documents. The 276-page complaint filed by Smartmatic against Fox News may present some strong claims. But length isn’t necessarily a sign of overall merit. Many other defamation complaints tend to be bloated with improper arguments, which can create the appearance of grievous wrongdoing and sloppy reporting committed by the media entity being sued. In our case, Planet Aid listed 80 objections to Reveal’s reporting in its nearly 70-page complaint, but was unable to identify a single false statement in the reporting itself. This approach was repeated in other filings in the case against Reveal, creating a hefty task for the district court and discovery judges, who are duty-bound to investigate every claim to mitigate the risk of reversal on appeal. It also necessarily required Reveal to expend time and money defending against these flimsy claims and arguments, or risk conceding them to the plaintiff.
Sue in far-away courts that have plaintiff-friendly laws. Defamation plaintiffs sue newsrooms in faraway jurisdictions to benefit from more favorable laws and friendly courts, all while draining newsroom resources in the process. This practice is known as forum shopping, and it’s as old as the seminal New York Times v. Sullivan case. In that case, the Times was hauled more than a thousand miles to Alabama to defend its publication of an advertisement supporting the Civil Rights Movement. More recently, the tactic was used in both the Gawker case, which was tried in Florida, and the ABC “pink slime” case, which was tried in South Dakota.
In Reveal’s case, Planet Aid tried at least five times to bring the case to Maryland instead of California, where Reveal is located. Although Maryland does have an anti-SLAPP statute—a state law designed to quickly bat down defamation suits—it is far weaker than California’s own anti-SLAPP statute. (Despite many attempts in Congress, no federal anti-SLAPP law has ever been enacted.) Maryland’s law does not provide an automatic right of appeal, nor does it permit a winning party to receive attorneys’ fees. And even though both the Maryland and California courts concluded that California was the proper place for trial, Planet Aid still continued to ask for the case to be returned to Maryland.
Employ costly discovery. Some anti-SLAPP statutes allow defendants of meritless libel cases to escape discovery and, in turn, minimize costs of protracted litigation. Sadly for defendants, federal judges have rejected the application of these state procedural rules in their courtrooms, permitting discovery to proceed against defendants in defamation suits. In our case, the discovery process took nearly two years and involved the disclosure of hundreds of thousands of documents related to Reveal’s reporting, as well as 500 audio recordings based on 200 interviews conducted in distant places including Denmark and Malawi. On top of being costly and time-consuming, this discovery was invasive in that it gave Planet Aid access to journalists’ source material.
While Planet Aid was able to scour most of our reporters’ notes, Reveal was fortunately able to assert a legal doctrine known as the “reporter’s privilege,” which allows journalists to protect their confidential sources to some extent. This was good in terms of the integrity of our reporting but crushing in terms of resource costs, as lawyers needed to be meticulous in combing through mountains of notes, e-mails, whistleblower reports, and audio tape to redact identifying information. This took thousands of hours, amounting to millions in legal fees on discovery alone. This also took Reveal staff away from the newsroom and hampered their ability to do their jobs; as one of Reveal’s attorneys bemoaned at a hearing, the discovery process was “so burdensome that we ha[d] two reporters and one editor working full time on this.” All of the time Reveal had to spend defending their prior work could have been spent conducting new investigations. None of this time is recoverable.
Limit discovery by defendants. When a state law anti-SLAPP motion is filed in federal court, judges may allow plaintiffs to dig into defendants’ newsgathering records without allowing defendants to do the same to the plaintiffs. In our case, discovery didn’t go both ways. Although Planet Aid was permitted to gather copious and detailed information about Reveal’s reporting, Reveal was not permitted to do the same. This asymmetry meant that Planet Aid could make it as difficult and as expensive as possible for Reveal to continue its defense without experiencing a similar drain on resources.
All four of these tactics inflict damage on newsrooms that can’t be undone, especially for nonprofit and local news organizations. Planet Aid has succeeded in injuring Reveal, even if it ultimately loses its case. While generous pro-bono assistance from attorneys at Davis Wright Tremaine and Covington & Burling has so far saved the organization from financial ruin, Reveal will never be able to recover the time that could have been spent on reporting or forget the stress that a multi-million-dollar lawsuit inflicts on its employees. To make matters worse, other news organizations might look at this lawsuit and decide that reporting on powerful or deep-pocketed organizations isn’t worth the risk.
Victoria Baranetsky is a Knight News Innovation Fellow at the Tow Center and serves as General Counsel at Reveal from The Center for Investigative Reporting; Alexandra Gutierrez is a First Amendment Fellow at The Center for Investigative Reporting.