According to today's decision by Judge Arun Subramanian (SDNY). Flynn v. CNN, Inc.:
Plaintiffs Jack and Leslie Flynn sued defendant Cable News Network under Rhode Island's false light statute. The Flynns are seeking $75 million in damages. The entire controversy stems from the six-minute segment's use, specifically the segment's use of a two-second clip featuring the Flynn family. The Flynns said the segment incorrectly portrayed them as “QAnon followers.”
The parties agree that QAnon is “an American conspiracy movement that began in 2017.” The conspiracy is centered around ‘Q’, who is presumed to be a ‘high-ranking public official’.[s] “Top Secret Information About the Deep State”. There have been about 5,000 such leaks (or “Q Drops”). “From these Q Drops,” the Flynns say, “a series of bizarre beliefs have sprung up.” But exactly what is that belief is It's unclear (which is one of the main topics of this comment). Before this lawsuit was filed, Jack referred to QAnon as “[j]These are people who do their own research and learn independence of thought to find the truth.”
The CNN report in question aired in February 2021. It was organized around an event called ‘Q Con Live!’ in October 2020. The report begins with a series of short clips from the event, followed by a voiceover from a reporter explaining that the footage came from a “gathering of QAnon followers in Arizona two weeks before the November election.” The following video features a so-called QAnon Shaman wrapped in a flag that reads “WHERE WE GO ONE WE GO ALL.” “He’s a known QAnon shaman, and he’s going to storm the Capitol in January,” the voiceover explains. The video then cuts to someone at the event singing, “There's one place we go, we all go there.” The voiceover then says, “'Where we go, we go': the infamous QAnon slogan promoted by Trump's first national security adviser, Michael Flynn.”
At that point the video is cut to a key clip. We see six people lined up, raising their right hands. “Where we go is where everyone goes,” says Michael Flynn, standing in the center of the group. There's Jack and Leslie with Michael Flynn, but they don't say anything. The video then cuts back to Q Con, and the voiceover continues: “This was played as a chant at this gathering of Trump supporters.” The remainder discusses President Trump's refusal to deny QAnon, the January 6 attack on the Capitol, and the QAnon movement more generally. Neither Jack nor Leslie are seen or mentioned again. Finally, almost the entire segment has a headline-style chiron: “CNN GOES INSIDE A GATHERING OF QANON FOLLOWERS.”
The Flynns originally brought two claims: defamation per se and false light. Before the case was reassigned to me, the court dismissed the defamation claim but not the falsehood claim. CNN has now asked for summary judgment on the false claims…
“To recover under § 9-1-28.1(a)(4) [the Rhode Island] false lighting statute]; [a] The plaintiff must prove that false or false information was disclosed that implied a connection that did not exist. and the published or implied connection may be objectionable to an ordinary reasonable person under the circumstances.” {In interpreting the statute, the Rhode Island Supreme Court struck down many of the defamation principles, noting that the plaintiff “must not be able to avoid them.” introduced.[e] Limitations of Successful Defamation Litigation Using the Substitution Theory of False Claims.”}
The court assumes, without deciding, that the video may imply that the Flynn family is QAnon followers… [But c] Flynn's “QAnon followers” were all just an opinion under libel law. And comments “are actionable only if they imply allegations of undisclosed defamatory facts as a basis for the comment.” Put another way, “the dispositional question here is…whether the statement in question can reasonably be interpreted as a statement or an implication.” [defamatory] facts about [Flynns].”
Here, the statement does not specify or imply defamation, so it is an opinion that cannot be sued. This conclusion is based on two independent but mutually reinforcing grounds. First, the statement cannot be verified. Second, it was a comment on published facts, not defamation. Both characteristics ensure that a reasonable viewer understands that the statement is the speaker's opinion (rather than a statement of fact) and that the speaker is not withholding additional undisclosed facts to justify the statement. Therefore, Rhode Island law and the First Amendment require it to be protected…
Please see the full comment for further details. For previous defamatory comments, see this post.