The Satanic Temple Loses Libel Suit Against Newsweek Over “Accounts of Sexual Abuse Being Covered up” Allegation

From Thursday’s decision in The Satanic Temple, Inc. v. Newsweek Digital LLC, written by Judge Alison Nathan and joined by Judges José Cabranes and Sarah Merriam:

In October 2021, Newsweek Digital LLC (Newsweek) published an article entitled “Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit.” The article, written by Washington-based journalist Julia Duin, details several internal disputes between members of The Satanic Temple (the Temple) and its leadership. The Satanic Temple responded by suing Newsweek for libel, claiming that many statements in the article were false and defamatory. By the time the case reached summary judgment, only one statement remained at issue: A quote from a former Satanic Temple member describing “[a]ccounts of sexual abuse being covered up in ways that were more than anecdotal” (the cover-up quote) within the organization.

On summary judgment, the district court concluded that no rational juror could find Newsweek either knew or entertained serious doubts that this quote was false prior to publication, and therefore it granted summary judgment in favor of the magazine…. [I]n recognition of New York’s choice to offer greater protection to defamation defendants than the First Amendment requires, we affirm ….

New York’s anti-SLAPP statute requires libel plaintiffs to show “actual malice” (i.e., knowing or reckless falsehood) when they sue over publicly made statements on matters of “public interest,” whether or not the statements are about public figures. In this respect, it protects libel defendants more strongly than First Amendment law does. The court held that this provision of the anti-SLAPP statute is substantive rather than procedural, and thus applies in federal court. And it reasoned,

[New York] state’s anti-SLAPP protections apply to, as relevant here, “any communication in a place open to the public or a public forum in connection with an issue of public interest[.]” … [T]he allegedly defamatory statement was printed on Newsweek’s website, which is indisputably a “public forum.” … [And] the article statement addresses “an issue of public interest[.]”Read in its allegedly defamatory manner, the statement suggests that The Satanic Temple—a nationwide organization with over 500,000 members—habitually concealed or failed to address internal complaints of sexual abuse. New York courts have concluded that the amended anti-SLAPP statute applies in similar cases, as well as in cases where the public interest is far less clear, see Aristocrat Plastic Surgery, P.C. v. Silva (N.Y. App. Div. 2022) (concluding that plaintiff’s online reviews of plastic surgeon addressed an issue of public interest because they “provide[d] information to potential patients”). We are mindful, too, that we must construe “[p]ublic interest … broadly,” to include “any subject other than a purely private matter.” N.Y. Civ. Rights Law § 76-a(1)(d)….

[T]o the extent The Satanic Temple argues that the anti-SLAPP statute cannot apply when the plaintiff is not a public figure, that argument is belied by the plain text of the statute, which does not contain a “public figure” requirement. {The district court was not presented with the question of The Satanic Temple’s status as a public figure on summary judgment and thus did not resolve it. On appeal, neither party has briefed the issue. Accordingly, we express no opinion about whether The Satanic Temple is a public figure for First Amendment purposes.}

Finally, the Temple’s appeal to general First Amendment principles is unhelpful. The Satanic Temple claims that we must “delineate those charges which deserve First Amendment protection from those that don’t”—and the instant statement, it claims, is one that does not deserve such protection. But that is not our job. “[T]he States may define for themselves the appropriate standard of liability for a publisher … of defamatory falsehood injurious to a private individual,” and they “are free to offer greater protection to individual rights than federal law affords” if they so choose. New York has made its choice: In cases concerning statements made in “a public forum in connection with an issue of public interest,” New York has chosen to impose a higher standard of fault than the Constitution otherwise requires. It is not our job to second-guess that choice; it is our job to apply it….

The court then concluded that The Satanic Temple hadn’t offered enough evidence to show “actual malice”:

To show actual malice, The Satanic Temple must demonstrate “that the author in fact entertained serious doubts as to the truth of his publication or acted with a high degree of awareness of probable falsity” prior to publication. The Satanic Temple claims that it established a triable issue of fact as to Newsweek’s “serious doubts” about the cover-up quote’s truth, and offers several arguments as support: (1) Newsweek’s failure to follow its own editorial standards, (2) Duin and Cooper’s bias against the organization, (3) Newsweek’s use of a hostile and pseudonymous source, and (4) Newsweek’s shortcomings in its fact-checking. Even construing the record in the light most favorable to The Satanic Temple, actual malice is a “decidedly high standard of culpability,” and we conclude that none of the above, taken alone or in combination, is enough to raise a triable issue of fact as to Newsweek’s actual malice.

First, assuming arguendo that Newsweek violated its own editorial guidelines by, for example, failing to be “specific and complete” when writing about criminal allegations, that failure does not constitute actual malice. Even “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” cannot alone establish actual malice…. “[W]hether [the reporter] complied with journalistic standards is of little evidentiary value” in an actual malice dispute …. The Satanic Temple contends that, even if compliance with industry-wide journalistic standards is not enough to establish actual malice, compliance with one’s own standards is more probative of a news outlet’s reckless disregard for the truth. We disagree. Whether the newsgathering standards were industry-wide norms or Newsweek’s own, The Satanic Temple’s argument sounds in negligence, and “proof of mere negligence does not suffice to establish actual malice.”

Likewise, Cooper and Duin’s alleged bias against The Satanic Temple—… assuming arguendo that they possessed such a bias—is not enough to establish that Newsweek acted with actual malice as to the cover-up quote. “Actual malice” as a standard of fault “should not be confused with … a motive arising from spite or ill will.” Therefore, the standard “is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.” While we have said that “[e]vidence of ill will combined with other circumstantial evidence indicating that the defendant acted with reckless disregard of the truth” may support a finding of actual malice, “[s]tanding alone, … evidence of ill will is not sufficient.” …

Third, Newsweek’s reliance on Strange as a source does not support a finding of actual malice. A journalist’s use of an anonymous—or, in this case, pseudonymous—source does not establish actual malice unless the story is, for example, “based wholly on an unverified anonymous” report from that source, or where “there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Here, Strange’s report of “accounts of sexual abuse being covered up in ways that were more than anecdotal” was corroborated by multiple other sources, such that Duin had no “obvious reason[ ]” to doubt him or the statement’s veracity. The Satanic Temple further argues that Newsweek demonstrated a reckless disregard for the truth by relying on a “hostile” source in Strange, who left the organization due to disagreements with its direction. But we rejected a similar argument in Church of Scientology Int’l v. Behar (2d Cir. 2001), in which the defendant reporter relied on “a former high-ranking” member of plaintiff’s organization who had previously “tried to frame the [organization] … by staging a phony death threat.” Even in the face of that overt bias, we held that the reporter’s reliance on the source could not establish actual malice sufficient to elude summary judgment in light of the reporter’s “considerable corroboration” of the source’s account. Similarly, Newsweek’s use of the “considerabl[y] corroborat[ed]” quote from Strange cannot support a finding of actual malice here.

Fourth, and finally, neither Newsweek’s failure to independently fact check the cover-up quote nor its failure to ask Greaves for his response to it is sufficient to create a triable issue of fact on actual malice. It is uncontroverted that Cooper relied on Duin to fact-check her own article, and that Duin did not specifically ask Greaves about Strange’s cover-up quote during their interview. Perhaps those actions were negligent, but neither demonstrates a reckless disregard for the truth of the cover-up quote. A news outlet’s insufficient investigation alone is not enough to demonstrate actual malice; we have said that “a publisher who does not already have obvious reasons to doubt the accuracy of a story is not required to initiate an investigation that might plant such doubt.” The Satanic Temple points to no such “obvious reasons” that ought to have prompted Newsweek to investigate further.

In sum, it may well be the case that Newsweek was unaware whether Strange’s cover-up quote was indeed true prior to publication. But “there is a critical difference between not knowing whether something is true and being highly aware that it is probably false,” and “[o]nly the latter establishes reckless disregard in a defamation action.” Nothing on this record supports an inference that Newsweek was highly aware that the coverup quote was false—if indeed it was—before hitting publish.

We therefore agree with the district court: No reasonable jury could find that Newsweek either knew or entertained serious doubts that the cover-up quote was false prior to publication….

Cameron Stracher and Sara Tesoriero (Cameron Stracher, PLLC) represent Newsweek.