Right-Wing Commentator Dan Bongino Runs Into Florida Anti-SLAPP Law, Now Owes Daily Beast $32,000 In Legal Fees

Free Speech

from the pretty-expensive-way-to-get-laughed-out-of-court dept

Venue selection matters, as right-wing political commentator/defamation lawsuit loser Dan Bongino is now discovering. He sued the Daily Beast over an article about his apparent expulsion from the National Rifle Association’s video channel, NRATV. After trying (and failing) to get a comment from Bongino about this ouster, reporter Lachlan Markay published his article, updating it later when Bongino decided he did actually want to talk about it.

An NRA spokesman did not respond to a request for comment. Bongino initially did not respond to numerous inquiries, but after publication he tweeted that news of his show’s demise was “fake news,” and promised to elaborate on his podcast.

He subsequently confirmed that “We Stand” is, in fact, ending, but suggested that the decision not to renew the show was his, not the network’s—a characterization questioned by one source familiar with the organization’s decision.

A day later, NRATV released a statement saying the network “made every attempt to retain [Bongino] in 2019,” but did not elaborate on the negotiations.

Despite this update about the alleged voluntariness of the separation, Bongino sued The Daily Beast for defamation, commercial disparagement, and violation of Florida’s Deceptive and Unfair Trade Practices Act. The local law likely explains Bongino’s decision to sue in Florida, but it didn’t help him here. In fact, it made things worse. The court dismissed [PDF] his lawsuit last August, declaring nothing about the article (and its insinuation Bongino was fired by the NRA) was defamatory.

Plaintiff “cherry picks [one word] in the [article] out of context.” To Plaintiff, “dropped” expresses that NRATV fired him. But the inquiry turns on “all the words used, not merely a particular phrase or sentence.” Not only does the article in its entirety convey that Plaintiff’s departure stemmed from corporate downsizing, it also cautions readers against accepting that NRATV initiated Plaintiff’s departure. For example, the article reflects that Plaintiff “suggested that the decision not to renew the show was his” and includes that NRATV did not “elaborate on the negotiations.” In effect, those words call to an average reader’s attention that negotiations were opaque. Those “cautionary terms” warrant more attention than the single word to which Plaintiff objects.

In short, even if the Court were to agree with Plaintiff that the “gist” of the article states that he was fired, the Court agrees with the reasoning set forth in the foregoing authority that the mere statement that an individual was terminated, without an insinuation of misconduct, does not constitute defamation. Because no reasonable interpretation of the article could be construed to suggest that Plaintiff was “dropped” for any reason other than fiscal decision-making, Plaintiff fails to establish that the article amounts to defamation.

And the federal court applied the state’s anti-SLAPP law, which Bongino managed to trigger by filing a bullshit lawsuit targeting members of the press.

Because Plaintiff’s suit fails to state a claim for defamation, it was without merit under Florida Statute §768.295(3). And because Plaintiff’s suit “arose out of” Defendant’s news report, the second element—free speech in connection with a public issue—is also satisfied.

This means Bongino is going to pay for trying to silence unfavorable press coverage by suing about it. And the amount being charged back to Bongino’s vexatious litigation account is large enough even someone making NRATV money (I mean, until 2019 anyway…) is going to feel it.

Bongino voluntarily dismissed the lawsuit after the initial ruling against him, even though the court gave him a chance to amend his complaint. But that’s not going to keep him from having to pay the Daily Beast’s legal fees, as the court points out in its fee-shifting order [PDF].

Defendant is the prevailing party within the meaning contemplated by Florida’s antiSLAPP statute. As previously discussed, the Court has already found as much. As Judge Maynard explains, the Court found that Plaintiff’s Complaint satisfied both prongs of the anti-SLAPP statute’s fee provision. See Fla. Stat. § 768.295(3). Furthermore, Florida law provides that a defendant can be—and often is—considered a prevailing party where a plaintiff voluntarily dismisses an action.

[…]

This is not a situation where Plaintiff voluntarily dismissed his Complaint with little to no litigation beforehand. The Court clearly ruled on the merits of Plaintiff’s claims, dismissed them— albeit, without prejudice, and found that the Complaint violated Florida’s anti-SLAPP provision. Plaintiff cannot create a run-around the anti-SLAPP statute’s mandatory fee provision by engaging in procedural gamesmanship.

The court also slaps Bongino for trying to raise jurisdiction issues once it was apparent he had lost in order to avoid being hit with a fee shift. If Bongino wanted the advantages of local laws to buttress his complaint, he’s also subject to their downside when the laws he cherry-picked failed to pay out.

Lastly, for the first time in his Objections, Plaintiff asserts that the Court—or the Report and Recommendation—should not have applied Florida law in this diversity case based on Florida’s “most significant relationship test.” Objections to a Report and Recommendation are generally an improper avenue to raise arguments for the first time—especially where the entirety of this case was based on Florida’s defamation law and the Florida Deceptive and Unfair Trade Practice Act.

Here’s the total Bongino now owes the Daily Beast.

Defendant is awarded its attorneys’ fees in the amount of $31,835.00, for which sum let execution issue.

Anti-SLAPP laws work. And Bongino’s last-minute legal gamesmanship shows why a federal anti-SLAPP law is needed to create the deterrence only enjoyed in select areas of the country. When cases go federal, there’s always a chance a federal court will decide a state law doesn’t apply to the proceedings, which invites the sort of venue shopping seen here. That it didn’t work out for Bongino is a hearty endorsement of the strength of the state’s anti-SLAPP law, but a federal law would discourage Bongino-esque legal tactics elsewhere in the nation.

Filed Under: 1st amendment, anti-slapp, dan bongino, defamation, florida, free speech, journalism
Companies: daily beast, nra