Kash Patel Filed a Defamation Case Monday. His Other Defamation Case Got Dismissed Tuesday.

from the that’s-a-lot-of-defamation-cases-kash dept

To have one defamation case about public allegations of your drinking as FBI Director would be unfortunate. To have a second dismissed the very next day would be, well, perhaps a sign that something has gone wrong. Earlier this week we wrote about Kash Patel’s ridiculously weak defamation case against The Atlantic over its big, deeply sourced article with multiple sources claiming that there have been problems associated with Patel’s drinking.

His complaint was filed on Monday. In it, his lawyers mention that they already have an existing defamation lawsuit against MSNBC’s Frank Figliuzzi (a former FBI assistant director for counterintelligence). This is part of Patel’s argument for why the Atlantic should have known the reporting was false. From the Monday complaint:

The FBI further warned Defendants that these allegations echoed a similar fabrication previously aired by MSNBC’s Frank Figliuzzi on Morning Joe—anonymously sourced reporting that was later retracted by MSNBC and that is the subject of pending defamation litigation—yet Defendants published it anyway.

That was Monday. On Tuesday, that defamation lawsuit was dismissed. Judge George C. Hanks Jr. made quick work of it, noting that Figliuzzi’s statement was clearly rhetorical hyperbole — a form of opinion that cannot be defamatory.

The case was entirely about this exchange on MSNBC:

Host: “So, Frank, let’s turn to FBI Director Kash Patel, who has sort of taken a surprisingly backseat role—at least to this point, in the first 102 or 103 days, wherever we are right now. What do you make of that, that he’s just been a little less visible than I think a lot of people and Trump observers expected him to be?”

Figliuzzi: “Yeah, well, reportedly, he’s been visible at nightclubs far more than he has been on the seventh floor of the Hoover building. And there are reports that daily briefings to him have been changed from every day to maybe twice weekly. So this is both a blessing and a curse, because if he’s really trying to run things without any experience level, things could be bad. If he’s not plugged in, things could be bad, but he’s allowing agents to run things. So we don’t know where this is going.”

The court is not at all impressed by this lawsuit.

The Court finds that Figliuzzi’s statement, when taken in context, cannot have been perceived by a person of ordinary intelligence as stating actual facts about Patel. As alleged, Figliuzzi’s statement about Patel—again, made in response to a question about Patel’s decreased visibility as Director of the FBI—was that “he’s been visible at nightclubs far more than he has been on the seventh floor of the Hoover building.”…. A person of reasonable intelligence and learning would not have taken his statement literally: that Dir. Patel has actually spent more hours physically in a nightclub than he has spent physically in his office building. By saying that Patel spent “far more” time at nightclubs than his office, Figliuzzi delivered his answer “in an exaggerated, provocative and amusing way,” employing rhetorical hyperbole. …

The Court finds that Figliuzzi’s statement is rhetorical hyperbole that cannot constitute defamation. Accordingly, Dir. Patel has failed to state a claim against Figliuzzi, and his lawsuit must be dismissed.

If a person of reasonable intelligence and learning would not have taken this statement literally, what does that say about Patel and his lawyers?

Either way, that’s a point for The Atlantic’s legal team, which can now respond to Patel’s claim that the Figliuzzi suit was evidence of falsity with: “nope, not anymore.”

Separately, part of the case involved whether or not Figliuzzi could get attorney’s fees from Patel for filing a vexatious SLAPP suit. There was a dispute over which state’s anti-SLAPP law should apply — Texas, Nevada, or New York each had some claim — and the court (correctly, in my opinion) landed on Texas, since that’s where Figliuzzi resides. Speakers have a reasonable expectation that their home state’s anti-SLAPP law will shield them.

Unfortunately, though, because the Fifth Circuit a while back decided that you can’t use Texas’ anti-SLAPP law in federal court, it’s all for nothing, and he can’t get Patel to pay for his legal fees. This is yet another reminder of why we need a federal anti-SLAPP law — not just to protect free speech more broadly, but to protect SLAPP victims in federal courts in circuits where state anti-SLAPP statutes can’t reach.

The Court finds that Texas has the most significant relationship. Further, applying either Nevada’s or New York’s anti-SLAPP statute to a Texas Defendant would “impede on Texas’s interest in protecting its citizens and fulfilling the statute’s purpose.”…

The Fifth Circuit has found that, because Texas’s anti-SLAPP statute’s “burdenshifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court.” … Thus, while Figliuzzi prevails on the present motion to dismiss, the Court may not award him court costs and attorney’s fees under Texas’s anti-SLAPP law.

Still, even without the fee shifting, this is a good result, and underscores how these exceptionally weak defamation suits are little more than attacks on the press for reporting what multiple sources describe as problematic behavior from the FBI director.

Filed Under: 1st amendment, defamation, frank figliuzzi, free speech, jesse binnall, kash patel, rhetorical hyperbole

Companies: msnbc