CNN Defamation Suit Hearing
October 30, 2024

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CHARLES D. TOBIN (CNN counsel): Because your honor under the doctrine of substantial truth, it does not – CNN does not need to act with legal precision. Journalists don't need to use words that have meaning in legal terminology, only in legal concepts, as long as this journalism supports the conclusion that is substantially true.

So the, the example that we cited in our reply brief is Dunn v. Airline Pilots Association. That's out of the 11th circuit or 93 of 3rd, 1185. Your honor, the plaintiff disputed there being called a scab in the context of a union dispute. Under union law, “strike” is a legal concept. It has to be declared by the union pursuant to its charter with a charter that's been approved by the National Labor Relations Board. It's a legal thing. Calling somebody a “scab” has a legal connotation that they violated the union edict to hold a strike.

In this case, there was no strike, there was no legal strike, there was a walkout but the, the strike had not been declared pursuant to the charter – again, pursuant to the law, the National Labor Relations law. The 11th circuit said that calling him a “scab” may have legal connotations, but in the context of this overall story of a union walkout, whether it was legal or not legal, the walkout itself, a reasonable person would understand that “scab” and – to be more pointed – under the doctrine of substantial truth, the Airline Pilots Association there and CNN here are protected for using terminology, even if we were to give him the point, plaintiff, the point that it could be interpreted as illegality because it was in violation – what Mr. Young was doing as he admits was in violation to the house rules of the brutal Taliban regime.

JUDGE WILLIAM SCOTT HENRY: Well, you want to revisit that whole issue of Sharia while Taliban law controls this whole thing and hence he was acting illegally. I find it kind of ironic the piece here is trying to be sympathetic to these Afghans that are trapped there.

TOBIN: Yes, sir.

HENRY: And you acknowledged that the Afghans wanted to leave?

TOBIN: Yes, sir.

HENRY: So, aren't they in fact wanting to be criminals by leaving when the Taliban wouldn't let them leave?

TOBIN: They are --

HENRY: You got a circular argument here. You, you wanna be – The story wants to be sympathetic and say, ‘you're exploiting these Afghans’ but those people wanted to leave and Mr. Young was trying to help them leave. So, he was an accessory to their crime.

TOBIN: He was, he would have been –

HENRY: That’s in essence kind of the argument when you look at the story in the context with the argument y'all are making.

TOBIN: Well, I –

HENRY: That Taliban law controlled and therefore he was acting illegally. So, it's substantially true.

TOBIN: He was acting in violation of Taliban law. I'm trying to persuade the court that the legality or the illegality is not the issue. Its was it in violation of some kind of a controlling authority’s rule, just like the union had staged a walkout, not a legal walkout, but a walkout.

HENRY: Isn’t there a legal distinction between calling somebody a scab versus calling somebody a criminal from a defamation standpoint?

TOBIN: There is, if there, there could be, if in the context, it doesn't allow for the broader substantial truth argument. If we had said Mr. Young is a criminal for allowing people to – helping people to leave Afghanistan period full stop. There's no context for that statement. There's no explanation, I would be making a very different argument here today.

In this context, your honor, where the parties agree that Mr. Young was trying to violate a brutal – help people violate brutal Taliban rules, just like Mr. Dunn in the Airline Pilots Association was violating union rules by walking out of work by going inside by being in a scab that the Airline Pilots Association case held that that was substantially true in the whole context of the facts.

And your honor. There is no, no genuine issue of fact. We all agree that the Taliban rules prevented people from leaving.

HENTRY: Right.

TOBIN: And if the Taliban rules prevented people from leaving, then assisting Taliban – Afghani, people in danger of their lives to leave was violating the Taliban rule. We're not standing up for the Taliban rule.

In fact, your honor, since I entered this case, I've had a hard time getting my brain around the fact that helping people escape Afghanistan is even defamatory that there's anything defamatory about this story. We're not making that argument today. I would, I would think that, you know, people who help people escape from Afghanistan in the minds of reasonable Bay County people would think that that's a good thing to do. And –

HENRY: I don't think there's necessarily a disagreement even from Mr. Young's side that what he was doing was a helpful service –

TOBIN: But the way they're doing it –

HENRY: Couching it as black market is the issue obviously that they're taking here.

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TOBIN: And I'll move on if I can't persuade the court and the court thinks that the order that you already rendered controls. But your honor, in our view and in our experience in defamation cases, when a journalist uses a term that has legal connotation to it. In this case, again, we're, we're gonna go with their interpretation it’s illegal.

If in the context of the story, a reasonable person, your honor, just said it right, can understand just like in scab, it didn't have to be a legal walkout, a strike in the connotation in the context of that, if it's, if a reasonable person can find it substantially true, the court is supposed to the tie, if you will, if there is one – and I don't think there that there is one – but the court is supposed to give the substantial truth of breathing room to the journalists.

Your honor, on summary judgement we cited a number of cases, Carp v. Miami Herald, Newton in the 1st DCA. On summary judgment, you're applying constitutional principles and substantial truth is a constitutionally-based doctrine. It comes from a case called Mason versus New Yorker. The altered quote case, if it's a substantially true publication, it’s protected under the Constitution.

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HENRY: So, what you’re saying though is you can do a half-assed job on investigating something, publish it thinking you’ve got the whole story, and you’re publishing it truthfully and accurately. But, in fact, you only got half the story and were completely wrong. But you’re protected because you can’t – you can’t be sued for defamation because you had a half-assed reporter only doing half their job?

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HENRY: Again, I'm not arguing that this is the outcome of the case. But if I'm looking at everything in the evidence light most favorable to the non-movement, the plaintiff in this case, what you're telling me is is that that newsroom thought he was a profiteer, thought he was doing things improperly, exploiting, taking advantage of these folks that are trapped in Afghanistan.

All right. So, if I look at that and ok, they've got a narrative in their mind of what they want to portray. And if the folks that worked on the segment just ‘full of holes like Swiss cheese,’ according to Mr. Lumley, got enough facts to support that narrative and stopped. Didn’t lift over the next stone, didn't do any more digging to see if maybe what he was charging was a fair price. Maybe if he was actually extracting people, maybe he was doing a good service and a whole bunch of other people were charging the exact same prices to get out of there other than the nonprofits obviously.

But, you know, I think there's some record evidence here that nonprofits were using folks like Mr. Young to help extract people where they were paying the individual. So, there was payment being made by to somebody.

But if they had that narrative in their mind, because they developed some information and they said this is what we're gonna do. I don't remember which individual said ‘it's your funeral, bucko.’ You know, I mean, you had Marquardt's statement about ‘nail him.’ But are you saying that I cannot find actual malice because the people stopped doing their investigation when they got enough facts to back up that narrative to put something out even though it was ‘full of holes like Swiss cheese?’

TOBIN: Yeah. First of all, Ms. Shullman just kicked me under the table. I made a –

HENRY: Do I need to get her arrested for a battery?

TOBIN: That's [inaudible]

Your honor. I made a mistake on the record, Mr. Lumley – and I'm sure they'll acknowledge this – Mr. Lumley was commenting on a draft of the article when he said it was holes full of Swiss cheese. He was not commenting on the broad –

HENRY: The segment.

TOBIN: - itself, the segment itself. So, his state of mind, what we're talking about is as an article that was not published, a draft article before it was published. First of all.

Second of all, to go to your honor's question. Anytime I can use the phrase “half ass” in court, I'm going to do it. Your honor, you know, the paradigm argument from plaintiffs is always you didn't do enough investigating. And that's why this legion case law out there under actual malice that says, failure to investigate is not evidence of actual malice. A pre-driven narrative is not evidence of actual malice. What's evidence of actual malice is either the journalists had a guilty state of mind knew it was false or substantively entertained doubts and we have none of that.

HENRY: But how do I get to that substantive thing or subjective thing that they didn't know it to be false? If I have a question as to whether they could even form that opinion because they only investigated half the story. You know what I'm saying? Because anybody could say, ‘well, I didn't know it to be false. So, you can never hold me to the actual malice standard.’

TOBIN: Well, here's –

HENRY: If I just read their response in this case, didn't read your motion, I just deny your motion. I think I did it properly. I don't think I was acting falsely by denying your emotion. Well, I never read your motion. I mean, how can I read, get to the point of determining there's no merit to your motion if I don't even read it? But I didn't believe it to be wrong, what I did.

TOBIN: And that's actually the Harte-Hanks–

HENRY: I bet you want me to do that.

[Laughter]

TOBIN: No, I'd rather not have a half ass.

[Laughter]

There is one half-assed case and that's where they get some of these arguments from. It's called Harte-Hanks V. Connaughton. It's a US Supreme Court case. In that case, the journalist actually had, on their desk and was told to listen repeatedly to an audiotape that would have undercut the story. And so there, the court said, well, you can't just testify that you had no doubts when you had obvious evidence in front of you that clearly and convincingly a jury could find would have gotten you there.

That's where the doctrine of failure to investigate is not actual malice meets the, which is subjective, meets the objective. Yeah, but you had the material in front of you and you chose to ignore it. Doctrine is called deliberate avoidance – deliberate avoidance of the truth. And yes, it can be proved by objective factors, but there's nothing like that in this case, your honor.

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