FBI Director Kash Patel Loses Defamation Lawsuit Over Morning Joe Statements

From today’s by Judge George C. Hanks, Jr. (S.D. Tex.) in Patel v. Figliuzzi, which stemmed from his exchange on MSNC’s Morning Joe with defendant Cesare Frank Figliuzzi, Jr., “the former assistant director for counterintelligence at the FBI”:

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.”

Patel claimed the “been visible at nightclubs far more than he has been on the seventh floor of the Hoover building” was actionable defamation, but the court found that it was nonactionable rhetorical hyperbole instead:

“Rhetorical hyperbole” is a subset of opinion, which Texas courts have “defined as extravagant exaggeration that is employed for rhetorical effect.” “Statements that would be perceived by the audience as ‘rhetorical hyperbole’ do not constitute defamation.” In this way, Texas law protects “statements that cannot reasonably be interpreted as stating actual facts about an individual.” “Whether an utterance is … rhetorical hyperbole turns not on what the speaker intended but what a reasonable person would believe and presents as a question of law for the court to decide.”

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.

For the quintessential Texas defamation opinion that discusses hyperbole—alongside parody—see New Times, Inc. v. Isaacks (Tex. 2004), the “Where the Wild Things Are”https://reason.com/”Do they make handcuffs this small? Be afraid of this little girl” case.