From today's decision by Chief Judge Colm Connolly (D. Del.) in Jankowicz v. Fox News Network:
According to the Complaint, [Nina] Jankowicz is "an internationally recognized expert in disinformation" who served as the Executive Director of the now-defunct Disinformation Governance Board (the Board) housed within the Department of Homeland Security (DHS)…. The Complaint alleges that Jankowicz resigned from the Board's Executive Director position "as a result of Fox's false statements and the ensuing harassment." In the Complaint's words:
Fox made three categories of repeated false claims about Jankowicz. First, over the course of over a year, Fox built a narrative calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech.
Anyone consuming Fox starting in April 2022 understood that Fox was telling them that Jankowicz and the Board were out to censor them and that they should be afraid of her.
Second, Fox hosts, guests, and/or commentators said that Jankowicz was fired from DHS. In fact, as Fox knew, Jankowicz had resigned due to harassment arising from Fox's defamation.
Third, Fox hosts, guests, and/or commentators said that Jankowicz wanted to give verified Twitter users the power to edit others' tweets. They relied extensively on an obviously manipulated video—the full version of which was publicly available—to transform her description (and indeed, skepticism) of a developing beta feature on Twitter into a false declaration that she would supposedly police online speech on the platform.
Jankowicz sued Fox for defamation, but the court granted Fox's motion to dismiss:
Fox argues first that Jankowicz's defamation claim should be dismissed insofar as it is based on 37 alleged statements in the Complaint that "are not even about" Jankowicz but "[i]nstead … address the Disinformation Board, DHS, or the Administration." … In response to this argument, Jankowicz says that "[m]any of Fox's statements about the Board were about Jankowicz," and that "Jankowicz has identified statements concerning the Board that defame her in context and by implication." Jankowicz, however, identifies only one such statement: a statement alleged in paragraph 100 of the Complaint to have been made by Fox host Sean Hannity in November 2022. Accordingly, I will dismiss the Complaint insofar as Jankowicz's defamation claim is based on the other 36 challenged statements, as it is not disputed that those statements are not "of and concerning the plaintiff."
With respect to the remaining statement, the Complaint alleges in paragraph 100 that Jankowicz's image was used during [a] segment" of a show when Hannity stated that "the Board was a 'department … dedicated to working with the special media giants for the purpose of policing information.'" Jankowicz says that "[i]t is plausible that viewers understood th[is] statement[] to be about Jankowicz." But even if that were the case, the statement is not defamatory because it is not false. On the contrary, according to the Disinformation Governance Board's own charter, the "[p]urpose" of the Board was to "guide and support the [DHS's] efforts to address mis-, dis-, and mal information that threatens homeland security ('MDM')," and the "focus" of the Board was on the following four cross-functional lines of effort to counter MDM, many of which are already underway ('lines of effort'): (1) identifying MDM 'Identification'); (2) assessing and analyzing the risk that such MDM poses to homeland security ('Risk Assessment'); (3) responding to these MDM threats ('Response'); and (4) building resilience to MDM ('Building Resilience').
The charter—which Jankowicz says in her briefing is "the most reliable information source as to the Board and Jankowicz's powers and limits"—further provided that the Board was to "serv[e] as [DHS's] internal and external point of contact for coordination with … the private sector[] and non-governmental actors regarding MDM." In other words, the Board was formed precisely to police information and to work with nongovernmental actors (such as "media giants") to accomplish that purpose. See Police, Merriam-Webster Online Dictionary (defining "police" as "one attempting to regulate or censor a specified field or activity"); id. (defining "police" as "to control, regulate, or keep in order by use of police").
Jankowicz insists in her briefing that "[t]hrough media appearances, public remarks, and testimony under oath, current and former officials made clear that the Board had no operational authority and no role in speaking with social media companies." But whatever Jankowicz may mean or the "current and former" officials may have meant by the phrase "operational authority," the Board's charter expressly provided that the Board would "coordinate[], deconflict[], and harmonize[]" the "operational responses" undertaken by DHS's "[c]omponents." See D.I. 31-1 at 10 ("Whereas [DHS] Components will lead on operational responses to MDM in their relevant mission spaces, the Board will ensure DHS efforts are coordinated, deconflicted, and harmonized, both within DHS and across the interagency, to ensure efficiency, unity of effort, and promotion of applicable compliance and best practices."). And, as noted above, the charter also expressly provided that the Board would "serv[e] as [DHS's] internal and external point of contact for coordination with … the private sector[] and non-governmental actors regarding MDM." …
[T]he alleged defamatory statements that fall within Jankowicz's first "category"—described by Jankowicz as statements "calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech"—are opinion. First, the language used in these challenged statements lacks readily understood precise meaning. "To censor" can mean various things, including "to scrutinize and revise, to suppress or edit selectively." Bryan A. Garner, Garner's Modern English Usage (4th ed. 2016). Censorship can also be understood as the actual removal of text or video from the public realm. See Censor, Merriam-Webster Online Dictionary (defining "censor" in relevant part to mean "delete anything considered objectionable"). Jankowicz impliedly adopts this definition of censorship with her repeated assertions in the Complaint and her briefing that the Board lacked "operational authority." But censorship can also be understood to encompass efforts to restrain or suppress certain kinds of speech. See id. (defining "censor" in relevant part to mean "to examine in order to suppress"). "To suppress" means not only "to stop or prohibit the publication or revelation of' but also "to restrain" and "to inhibit." See Suppress, MerriamWebster Online Dictionary. For many if not most American citizens, the identification of their speech as "misinformation," "disinformation," or "malinformation" by a government entity authorized to "coordinat[e]" with "the private sector" "regarding" that labeling would be viewed as an effort to discourage people from engaging in that speech. Jankowicz herself seems to concede as much in her briefing. See D.I. 32 at 27 (Jankowicz responding "[p]erhaps" to "Fox['s] claim[] [that] 'average citizens would surely feel censored by the government labeling their posts "disinformation."'").
Second, the challenged statements are not readily capable of being proven true or false because, to use Jankowicz's words, the statements were "calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech. "[S]ubjective evaluations of intent and state of mind … are matters not readily verifiable and intrinsically unsuitable as a foundation for defamation" under New York law. Predictions about what Jankowicz would do in the future, see, e.g., D.I. 26 ¶ 72 (alleging that guest on Fox show stated that Jankowicz was "going to actually be taking things off [of the internet]") (brackets in the original), are similarly not readily verifiable statements that are actionable under New York's libel laws…. "Speculations as to the motivations and potential future consequences of proposed conduct generally are not readily verifiable, and are therefore intrinsically unsuited as a foundation for libel." …. Jankowicz says that "referring to [her] as a 'censor' or the 'Minister of Truth,' implies verifiable facts." But she does not identify those facts, and neither "censor" nor "Minister of Truth" makes apparent what those facts could be….
[T]he broader context in which the challenged statements were made confirms that viewers would likely have understood the challenged statements to be opinion. It is undisputed that from the time its existence was announced by DHS, the Disinformation Governance Board was a hypercharged subject of political debate. Within two weeks of the announcement, twenty state Attorneys General called upon DHS's Secretary to disband the Board. In a public letter addressed to the Secretary, the Attorneys General stated that "[t]he Disinformation Governance Board, by its very existence, and almost certainly by design, threatens to 'enforce silence' when Americans wish to express views disfavored by the Administration." On the same day that letter was published, two states sued the Biden Administration to prevent the implementation of what they described as a "campaign of censorship [that] culminated in … the creation of a 'Disinformation Governance Board." "In the charged context of a debate over a matter of public concern, the [viewer] will expect a certain amount of hyperbole and loose characterization—in short, a certain amount of opinion." ….
The parties' briefing with respect to whether Jankowicz's second category of alleged defamatory statements are opinion is wanting. Neither party bothered even to identify the universe of allegations in the Complaint that a Fox employee or agent stated that Jankowicz "was fired from DHS." (Based on my own review of the Complaint, it appears that there are five alleged defamatory statements that could fall within this category.) Fox specifically addresses in its briefing three alleged statements that fall in this category—that Jankowicz "got booted" from her position as Executive Director (alleged in paragraph 122 of the Complaint), that DHS's secretary "had to yank" Jankowicz from her job (alleged in paragraph 123 of the Complaint), and that "Jankowicz was so absurd that she had to go away" (alleged in paragraph 124 of the Complaint). Fox argues that these statements are "inherently imprecise" and "reflect opinions about the situation that played out as the Disinformation Board imploded." Jankowicz does not dispute this contention in her briefing. Accordingly, I will dismiss her defamation claim insofar as it is based on these three alleged statements….
Fox argues, and I agree, that Jankowicz's third category of alleged defamatory statements—i.e., statements "that Jankowicz wanted to give verified Twitter users the power to edit others' tweets"—are assertions about Jankowicz's motivations and intentions that are not actionable under New York defamation law….
Fox [also] contends, and I agree, that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true. On the contrary, as noted above, censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications. The Disinformation Governance Board was formed precisely to examine citizens' speech and, in coordination with the private sector, identify "misinformation," "disinformation," and "malinformation." For the reasons discussed above, that objective is fairly characterized as a form of censorship.
The alleged statements to the effect that Jankowicz had been fired are similarly not sufficiently pleaded as not substantially true. According to the Complaint, on May 17, 2022, "after Jankowicz had drafted a resignation letter, DHS officials offered Jankowicz the opportunity to stay on with the agency as a policy advisor while the Board's future was under review." The next day, "DHS officials announced that the Board was being 'paused,"' and Jankowicz "chose to officially resign from the Board." Saying that DHS officials fired or dismissed Jankowicz from her position as the Board's Executive Director while the Board was put on pause so that DHS could determine the Board's future would not cause a different effect in the mind of a viewer than saying that DHS officials offered Jankowicz "the opportunity to stay on" in a lesser position while the Board's future was under review. Being offered the opportunity to stay on as a mere "policy advisor" is tantamount to being demoted or dismissed from the position of Executive Director. Being dismissed from a position is fairly described as being fired from that position.
Jankowicz faults Fox because, in her words, "Fox knew [she] had resigned when DHS would have continued to employ her." But she alleges in the Complaint that she did not submit her resignation until the day after DHS officials told her DHS would continue to employer in a lesser position. Moreover, given that Jankowicz "chose to officially resign" from her position as Executive Director on the same day that DHS publicly announced that the Board was being "paused," whether she resigned or was fired as the leader of the Board would have amounted to an immaterial technicality to the ears of a reasonable viewer because such a viewer would have expected the dismissal of the person in charge of an enterprise that had been "paused" and whose very future was in question.
Finally, the alleged defamatory statements that Jankowicz wanted to give verified Twitter users the power to edits others' tweets also are not plausibly pleaded as not substantially true. To the contrary, the Complaint itself quotes Jankowicz confirming in a Zoom session that she endorsed the notion of having "verified" individuals edit the content of others' tweets. Specifically, the Complaint alleges that Jankowicz stated "during a Zoom meeting" that she "like[d] the idea" of "verified people" "edit[ing]" Twitter and that she "like[d] the idea of adding more context to claims and tweets and other content online, rather than removing it." …
Fox is represented by Eric M. George, Patrick F. Philbin & Katherine A. Petti (Ellis George Cipollone O'brien LLP), and John L. Reed and Peter Kyle (DLA Piper LLP).
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