From Friday's decision in Jankowicz v. Fox News Network, LLC, decided by Third Circuit Judge L. Felipe Restrepo, joined by Stephanos Bibas and Cindy Chung:
[A.] Appellant Nina Jankowicz [was the] Executive Director of the Department of Homeland Security's … Disinformation Governance Board … "from March 2, 2022, through May 18, 2022." The Board "had no operational capabilities" and "existed to study how other components of DHS with operational authority responded to disinformation, recommend best practices that complied with constitutional and other civil liberties, and coordinate operational DHS components' discussion of their work concerning disinformation threatening national security."
Jankowicz alleges that "immediately after DHS announced the creation of the Board in late April 2022," Fox became "obsess[ed]" with her, "ridicul[ing]" and "bullying Jankowicz day in and day out." Fox hosts and guests also frequently attacked the Board, sometimes displaying Jankowicz's image on screen while doing so, accusing it of being a "Ministry of Truth" that was trying to "take away your free speech." In response to these attacks, "DHS, Secretary Mayorkas, former officials, and even the White House Press Secretary" repeatedly sought to clarify the Board's limited operational capacity and dispel "the story Fox was telling about Jankowicz and the Board." Fox, however, "continued to level the same accusations about Jankowicz and the Board."
In May 2022, Fox programs repeatedly commented on a 2021 video in which Jankowicz had discussed a Twitter pilot program named "Birdwatch." Though Jankowicz asserts that her 2021 comments showed a "deep concern about allowing the government—or certain individuals—to control information," Fox's hosts and guests "repeatedly stated that Jankowicz had said she wanted to edit other Twitter user[s'] posts."
On May 18, 2022, in response to the backlash against the Board, "DHS officials announced that the Board was being 'paused.'" Though Jankowicz had been offered "the opportunity to stay on with the agency as a policy advisor while the Board's future was under review," she elected to resign instead. Fox programs celebrated Jankowicz's resignation, saying that she "got booted," that DHS "had to yank" her, and that a video parody posted by Jankowicz had been "so embarrassing that the Biden administration had to fire" her.
Jankowicz sued Fox for defamation. Jankowicz's … Complaint … detailed a litany of purportedly defamatory statements made by Fox, which she characterized as largely falling into "three categories": (1) "that Jankowicz intended to censor Americans' speech"; (2) "that Jankowicz was fired from DHS"; and (3) "that Jankowicz wanted to give verified Twitter users the power to edit others' tweets." …
[B.] The court concluded that the statements about the Board weren't sufficiently "of and concerning" Jankowicz to allow her to sue over them:
