Fox News, Judge Jeanine, Pirro, lawsuit, McKesson, Pirro

Did Judge Jeanine Defame Deray Mckesson?

By Grace Lidia Suarez

Jeanine Pirro (Judge Jeanine to her Fox fans) is being sued for defamation by Black Lives Matter activist Deray Mckesson. Mckesson had been sued by a police officer seriously injured at a demonstration at which Mckesson was present, and he alleged that Mckesson directed the violence against him. The judge dismissed the case.

In so doing, the judge held the complaint “utterly failed to state a plausible claim” and instead launched a “confused attack” against Black Lives Matter and others, including movement leader Mckesson. AP News reports the judge also found,

… the officer’s own claims demonstrated that Mckesson “solely engaged in protected speech” at the July 9, 2016, demonstration, which followed the fatal shooting of Alton Sterling, a black man, by a white Baton Rouge police officer.

Mckesson’s lawsuit against Pirro alleges that,

  • After the officer’s lawsuit was dismissed, Pirro “made a series of outrageously false and defamatory statements about Mr. McKesson, including that he directed someone to hit the police officer in the face with a rock.”
  • Pirro’s statements, which were made during an appearance on the Fox News show “Fox & Friends,” were extremely dangerous and continue to endanger McKesson, the lawsuit said.

Fox News said Pirro’s statements are protected speech.

“We informed Mr. McKesson’s counsel that our commentary was fully protected under the First Amendment and the privilege for reports of judicial proceedings. We will defend this case vigorously,” the statement said.

(Source: https://apnews.com/775c33034b314ce3a522f955b323c715.)

The Baltimore Sun reported that,

During the morning news show, Pirro allegedly defamed Mckesson, saying he incited violence, according to Mckesson’s lawsuit.

“And in this particular case, DeRay Mckesson, the organizer, actually was directing people, was directing the violence,” Pirro said, which was false, according to the complaint.

After the segment, Mckesson wrote a letter to Fox News, asking for a retraction, but the complaint said the network refused because it said Pirro was reading from the judge’s order dismissing the Black Lives Matter lawsuit. Pirro did not respond to the letter.

Pirro has said she was referring to court documents. In response to news reports, she said on Twitter, that “I quoted 2 paragraphs from court docs,” the complaint said.

But the complaint said she wasn’t quoting court documents and noted that the judge ruled against the officer.

Pirro then discussed money that was awarded to protesters who sued Baton Rouge officials after they were arrested during the same protests when the officer was injured, the complaint said. At the end of the “Fox and Friends” segment, Pirro noted that the police officer’s case was dismissed, and that the case, brought by McKesson and other protesters, was eligible for settlement, according to the complaint.

“The problem is when you have federal judges who make decisions on politics — activist judges — not on the facts,” Pirro said, according to the complaint. “You’ve got a police officer who was injured, he was injured at the direction of DeRay Mckesson, DeRay Mckesson walks away with a hundred thousand dollars, for an organization that is amorphous, we got a problem in this country,” she said, according to the complaint.

So the question posed by the lawsuit is: were Pirro’s statements defamatory, and if so, are they protected by the fair report privilege or the First Amendment?

Defamation, which includes both libel (written) and slander (spoken) is the making of a false statement that injures another person’s good reputation and causes harm.

New York protects people who rely on an official public document or a statement by a public official on a matter of public concern, the person reporting identifies the source, and accurately and fairly portrays the information in the document. Statements made by a judge in a trial fall within the privilege.

So if Pirro accurately described the contents of the judge’s order, her statements may be protected. But did she? As far as I’ve been able to determine, the answer is no.

It seems obvious that if the judge had ruled as Pirro said, he would not have dismissed the lawsuit.

I don’t think the “fair reporting” dog’s gonna hunt.

Fox News also said something about the First Amendment, by which I imagine they mean that in order to find liability when the defamed person is a public figure, which Mckesson undoubtedly is, he would have to show that Pirro either intentionally lied or made the statements with reckless disregard for the truth. (If you’re a law nerd, you can take the deep dive by reading New York Times Co. v. Sullivan, 376 US 254.)

The problem is, if she said something that was not in the judge’s ruling, it sure looks like a lie.

I think Pirro is in some trouble.

Needless to say, not everyone is terribly upset that Judge Jeanine is getting sued. As the inimitable Margo Howard (@margoandhow) put it:

 

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