Kash Patel’s Implausible Lawsuit Against The Atlantic

But a plaintiff can’t simply assert, without any backup, that the publisher lied. Courts have held that a complaint must also point to specific plausible facts demonstrating that the publisher knew the article was false. Knowing this, Patel’s lawyers have taken pains to show that in the case of The Atlantic. Patel’s lawyers, however, seem to misunderstand how the law (or logic) works. They assert that The Atlantic must have known that the allegations in the article were false for a host of reasons: because Patel had denied the allegations; because Patel had taken fewer vacation days than other directors; because The Atlantic had published negative pieces about Patel in the past, allegedly showing that they were biased against him; and because some sources were likely politically opposed to Patel. Of course, none of those claims plausibly establish that either The Atlantic or Fitzpatrick had reason to doubt the dozens of sources cited in the piece.

Most embarrassingly, Patel claims that The Atlantic should have known that the article was false because he had already sued someone who had made a similar claim on MSNBC about his spending time in night clubs. In May of last year, Frank Figliuzzi, a former assistant director for counterintelligence at the F.B.I., was a guest on “Morning Joe.” In response to a question about Patel’s lack of visibility, Figliuzzi said, “Yeah, well, reportedly, he’s been visible at night clubs far more than he has been on the seventh floor of the Hoover Building.” Patel promptly sued Figliuzzi in federal court in Texas, and Patel’s lawyers hammered this fact in their complaint against The Atlantic. As a matter of logic, it’s less than airtight. Worse, however, was that on Tuesday, a day after the suit against The Atlantic was filed, the Texas court dismissed the case against Figliuzzi, stating that Patel hadn’t met the standard for a defamation claim. As we lawyers say, ouch.

Coincidentally, earlier this month, a federal court in Florida dismissed Donald Trump’s defamation lawsuit against the Wall Street Journal in a ruling whose logic would seem to apply to Patel’s suit against The Atlantic and Fitzpatrick. Trump sued over an article that described a drawing of a naked woman, apparently signed by Trump, included in a birthday book for Jeffrey Epstein, along with the note, “Happy Birthday—and may every day be another wonderful secret.” When asked for comment prior to publication, Trump denied either making or signing the drawing and threatened to sue the Journal if it published the piece. It did, and the next day, he did. Later, a congressional committee subpoenaed the birthday book from the Epstein estate, and publicly released the precise drawing and note described in the Journal article.

The Florida court held that Trump’s denial to the newspaper before publication did not mean that its editors knew the article was false, or that they even seriously doubted the truth of the article. That is, the President had failed to show actual malice. “The Complaint comes nowhere close to this standard,” the court said. Double ouch. Unfortunately, the judge went on to decide that Trump should have a chance at a do-over, so he will be able to file an amended complaint, notwithstanding that the congressional release of the birthday note should have conclusively established the truth of the article.

The point is not, of course, that denials from government officials should be ignored. Careful journalists consider denials and include them in reported pieces about those officials’ actions. The point is that, for journalism to see the light of day, reporters have to be able to publish critical, rigorously reported pieces that they believe to be true in the face of those denials. If a mere denial (or even a denial plus a threat of a lawsuit plus a prior lawsuit) were sufficient to create a presumption of actual malice, no such pieces would be published. As a result, Americans would be less informed about the actions of government officials, and democracy would suffer.