A federal judge on Friday dismissed a lawsuit Michael Avenatti filed against Fox News.
Avenatti, a frequent CNN guest who fell significantly from grace since representing porn star Stormy Daniels in her claims against Donald Trump, sued Fox News over the way it covered his arrest on “suspicion of domestic violence.” (That’s the verbiage used by the LAPD to describe the alleged incident.)
Avenatti recently was sentenced to prison after a jury agreed that he attempted to extort Nike. And he’s currently on trial over accusations he embezzled money from his former clients.
Avenatti’s legal fate in the Fox News defamation lawsuit was decided Friday afternoon by Circuit Judge Stephanos Bibas, a Donald Trump appointee to U.S. Court of Appeals for the Third Circuit. Judge Bibas heard the case while sitting by designation in U.S. District Court for the District of Delaware.
The judge issued a pointed introductory paragraph trashing the litigation in general terms:
News outlets are not liable for minor mistakes, especially when reporting on public figures and matters of public concern. Michael Avenatti, a famous lawyer, was arrested on suspicion of domestic violence. Fox News covered his arrest. He sued, claiming that its reporting defamed him. But most of its statements were substantially true. And Avenatti does not plausibly plead that Fox or its employees knew that the statements were false or recklessly disregarded that possibility. He also fails to allege any recoverable damages. I will thus dismiss his complaint.
The Friday opinion recaps in succinct fashion a series of statements various Fox News personalities and opinion hosts made about Avenatti. He attempted to rubbish the coverage as follows, per the judge’s recap:
Avenatti complains that Defendants lied about the details of his arrest: He does not deny that he was taken into custody, nor that he got out on bail. But he was not “charged . . . with any crime relating to any alleged incident involving domestic violence or assault.” His estranged wife was not involved, nor did she file a complaint. There was no “incident or allegation involving any witness, victim or woman” being left with bruises or a black eye. And Avenatti did not run after a woman yelling, “She hit me first!”
The judge — while noting that he was legally required to accept Avenatti’s assertions as true at this stage in the legal proceedings — went on to say that the coverage was either “substantially true” or was “protected opinion.”
Arrested vs. Charged
The judge first rubbished Avenatti’s quip that there is a legal distinction between an “arrest” and the filing of a “charge” (quotes cleaned up):
Avenatti complains that Defendants said he was arrested on charges of domestic violence. He admits that he was arrested. And he does not deny that he was arrested due to suspected domestic violence. But he insists he was never formally charged. And to Avenatti, there is a marked, material difference between being arrested [by police] on suspicion of having committed a crime and actually being charged with a crime in court.
There is a difference to lawyers. But I assess the statements in question from the perspective of the average reader, not a person trained in the technicalities of the law. And charge may be used in a popular sense as a synonym for accuse.
Plus, Avenatti was not merely accused—he was arrested and taken into custody. Police are supposed to good reason to arrest people. So to the average reader, the “gist” and the “sting” would be the same had Defendants reported only that he was arrested for suspected domestic violence.
In other words, any distinction for the purposes of defamation law was a “factual error was too small to count,” the judge said.
Judge Bibas then turned to Avenatti’s complaints about Fox’s assertions that “(1) the victim was his estranged wife; (2) she was bruised with a black eye; and (3) he ran after her, saying, ‘She hit me first.'”
Bibas dismissed Avenatti’s complaints herein by saying that he failed to plead “actual malice” as a public figure: “all he provides are conclusory statements and implausible assertions.”
“This is not enough,” Bibas said.
Specifically, Avenatti complained that it became public on the afternoon of his arrest that “his two ex-wives publicly stated that he had not assaulted them.” And yet Fox continued to connect those ex-wives to the arrest that evening. Walk-backs did not occur until the next day. Again, per the judge (and, again, the quotes are cleaned up):
According to Avenatti, that means that Defendants knew that the victim was not his ex-wife but reported it anyway. But he has not claimed that Defendants learned of the ex-wives’ denials before the initial broadcast. Indeed, they reported their denials the next morning. That makes it unlikely that Defendants had ever purposefully avoided the truth.
As to Avenatti’s claim that Fox learned its coverage was incorrect from watching “legitimate” news outlets, the judge said Avenatti’s claim was “too vague to plausibly show that Defendants acted recklessly.”
Under defamation law, “actual malice,” the standard which must be plead by public figures before proceeding in a case, requires a court to examine whether reporters published information with actual knowledge that it was false or with “reckless disregard” for whether it was true or false. And Judge Bibas construed the bar for recklessness as a very high bar for recovery.
Judge Bibas construed California law as controlling, since Avenatti is a resident of that state. And California law requires plaintiffs to seek a correction within twenty days of an alleged false report. Avenatti provided no such notice.
(Interestingly, just two days earlier, another Trump-appointed federal judge ruled that congressman Devin Nunes, a Republican from California, could skirt the protections California law afforded to the press in a separate lawsuit Nunes filed against the Washington Post. That judge agreed with Nunes that he suffered harms in the Washington, D.C., and Virginia areas because he works and maintains offices in those locations.)
“Avenatti dislikes how Fox News covered his arrest,” Judge Bibas wrote in conclusion surrounding the instant case. “But he cannot overcome the truthfulness of the gist of Fox’s coverage — he was, after all, arrested for suspected domestic violence. Plus, he has not shown that Defendants knew, or deliberately ignored, any inaccuracies in their reporting. And he expressly disclaims the need to allege special damages, as he must under California law.”
“We are pleased with the Court’s swift decision in favor of FOX News,” a FOX News Media spokesperson told Law&Crime in a statement. “Today’s ruling is a victory for journalists everywhere, who should not be intimidated into silence when bullies like Michael Avenatti file baseless multimillion-dollar lawsuits.”
Bibas did give Avenatti the chance to cure his case by re-alleging his actual malice arguments and other defects with the way he argued damages. So, he dismissed the case without prejudice — meaning Avenatti could, in theory, file it again. Such re-filings are generally rare.
Read the opinion below:
[Image via Drew Angerer/Getty Images]
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