Alan Dershowitz Files SLAPP Suit Against CNN; Says Not Airing More Of What He Said Is Defamation

from the not-how-it-works-dersh dept

Famed law professor Alan Dershowitz is at it again. He's now suing CNN for defamation in a SLAPP suit, because he's upset that CNN did not provide an entire quote he made during the impeachment trial before the US Senate, claiming that because he was quoted out of context, it resulted in people believing something different than what he actually meant with a quote. Reading the lawsuit, the argument is not all that different from the defamation claim made by another Harvard Law professor, Larry Lessig, earlier this year, in which he accused the NY Times and a reporter there of defamation for taking his comments out of context. Lessig later dropped that lawsuit.

In both cases, these law professors are effectively arguing that when they make convoluted arguments, you must include all of the nuances and context, or you might face defamation claims. That's incredibly chilling to free speech, and not how defamation law works. Dershowitz's complaint is that during the trial, he made the following claim:

“The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal. Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn’t been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."

Dershowitz is upset that CNN aired a segment that showed just that final sentence:

Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

But here's the thing: CNN also did air the full segment. And Dershowitz admits this. He's just upset that at other times they only aired part of it, and that some commentators don't paraphrase it the way he wanted them to. Here's where he admits that CNN did, in fact, air the entire clip:

Immediately after Professor Dershowitz presented his argument, CNN employees, Wolf Blitzer and Jake Tapper, played the entire clip properly, so CNN knew for certain that Professor Dershowitz had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act. That portion then disappeared in subsequent programming.

It disappeared because the longer quote is long, and people were focused on the key part -- that final sentence. Many people -- including some on CNN -- mocked Dershowitz for those remarks. Because they're ludicrous. Even with the full paragraph. But the mockable part is the final sentence, and that's why it's news. And the CNN commentators who mocked it were commentators -- people paid to give their opinion on what Dershowitz said.

But, as with Lessig's lawsuit, the complaint from Dershowitz is that commentator's opinions about what was said differs from what was meant. But opinions cannot be defamatory. And if people misinterpreted what Dershowitz said, that's on Dershowitz for not explaining it clearly enough. We're in a world of trouble if people get to sue for defamation every time someone misunderstands their poorly made argument.

I can understand why it's frustrating for people to completely misunderstand your argument. It happens all the time to lots of people -- including myself. It happens quite often when people try to make carefully nuanced arguments. But misunderstanding, or even misrepresenting, a more nuanced argument is not defamation. And nothing in Dershwotiz's lawsuit changes that.

Dershowitz's lawsuit hangs its hat on the Masson v. New Yorker Supreme Court ruling from 1991. Dershowitz's complaint describes that ruling as follows:

... the Court held that a media organization can be held liable for damages when it engages in conduct that changes the meaning of what a public figure has actually said. While Masson involved the use of quotation marks to falsely attribute words to Jeffrey Masson, the law that the case created is broad, and unequivocally denies first amendment protections to a media organization that takes deliberate and malicious steps to change the meaning of what a public figure has said. That is exactly what CNN did when it knowingly omitted the portion of Professor Dershowitz’s words that preceded the clip it played time and time again.

This is... not an accurate portrayal of the Masson case or ruling. And, yes, I recognize that there's some irony in Dershowitz claiming its defamation to misrepresent himself while his lawsuit then misrepresents a key Supreme Court case that it relies on. The Masson case is a fun one to read. In involves an article (and then a book made out of the article) about an academic where it appears that the author didn't just selectively quote the academic, but made up quotes. The ruling compares the quotes in the article to the tape recordings of interviews to note just how different the quotes in the story are from what was actually said. That's... not what is happening here. It is true that one of the quotes in the Masson case involved selectively excising some of a quote, but that was done in a truly egregious way. It wasn't that they left out context, it was that they excised a middle portion, to make a later portion appear that it was referring to something much earlier, rather than what was excised.

That is... not what happened to Dershowitz. Indeed, the Masson ruling works against Dershowitz in many ways. It actually says that you have to expect the press to take your long rambling comments and tighten them up, because that's part of journalism:

Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker's perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker's meaning, for example, where that meaning turns upon a speaker's emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker's words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word.

In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff's reputation by a statement that is defamatory and false.

In the Masson case, the Court did find that many of the changes to the text, including that one section, involved a "material" difference in meaning, and therefore could be found defamatory by a jury. But this case is very, very different than what Dershowitz is claiming about CNN. They didn't quote his whole line, but there is no requirement they quote his entire argument.

Then there's the whole damages bit. According to Dershowitz, his reputation was damaged to the tune of $300 million because some people made fun of him on CNN, and it's all their fault that they didn't understand his poorly made argument. The fucking entitlement of this guy.

The damage to Professor Dershowitz’s reputation does not have to be imagined. He was openly mocked by most of the top national talk show hosts and the comments below CNN’s videos show a general public that has concluded that Professor Dershowitz had lost his mind.

Being mocked on TV is proof of damages? Really, now? How fragile is Dersh's ego here? Multiple times in the lawsuit, Dershowitz's lawyer (yes, he found an actual Florida man lawyer to file this lawsuit) talks about how only playing part of his long silly answer would lead people to believe that Dersh had "lost his mind":

The very notion of that was preposterous and foolish on its face, and that was the point: to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind. With that branding, Professor Dershowitz’s sound and meritorious arguments would then be drowned under a sea of repeated lies.

If only airing one sentence of your preposterous argument makes you look like you've lost your mind, perhaps the problem is in how you frame your arguments.

This is yet another SLAPP suit. Florida has an anti-SLAPP law, but it's a mixed bag in terms of how strong it is. Of course, as with many SLAPP suits, the real goal is likely to just be intimidation, rather than to actually win a vexatious nonsense lawsuit.

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Filed Under: 1st amendment, alan dershowitz, anti-slapp, context, defamation, florida, free speech, slapp, slapp suit
Companies: cnn


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  • icon
    Koby (profile), 18 Sep 2020 @ 11:26am

    Celebrity

    I bet celebrity lawyers probably treasure their image above most else. It's their image that allows them to be paid for TV appearances to comment on controversial topics, or score high profile court cases. It looks to me like the $300 mil represents his ego, and not any actual damages.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Sep 2020 @ 11:41am

    More context isn't helping you there...

    Whether in short form or full if people are thinking that he's lost his mind that's probably because his argument was insane, suggesting that so long as they don't break the law any president has almost free reign in what they can do to influence their election without crossing into impeachment territory.

    If anyone is to pay for his 'ruined' reputation he needs only look in a mirror to see the responsible party, all this is doing is dragging his reputation through the mud even more.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Sep 2020 @ 11:48am

      Re: More context isn't helping you there...

      I didn't even realize who this was until I saw the end quote. The weirdest part is the additional context doesn't help with his ending statement at ALL. How can this man think that he can sue for defamation for this at all? I really wish for situations like this, vexatious lawsuits would be easier to prove to smash the accuser with punitive damages and fee shifting for doing things like this.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 18 Sep 2020 @ 11:52am

        Re: Re: More context isn't helping you there...

        Lawsuits like this highlight how badly a strong federal anti-SLAPP law is needed. Performative and/or punitive lawsuits become a lot less tempting when you know there's a chance it will cost you more than just some relatively minor legal costs.

        reply to this | link to this | view in chronology ]

    • icon
      DB (profile), 18 Sep 2020 @ 12:06pm

      Re: More context isn't helping you there...

      The Dershowitz argument is even more extreme than you are suggesting.

      He was arguing that the president was entirely above the law.
      Impeachment is the sole recourse.
      Yet the president can't be impeached because it's not a prosecutable crime for the president to break the law.

      It was a redux of the Nixon "When the President does it..." that was roundly rejected by the public a half century ago. Nixon resigned and was pardoned before that theory could be tested in court.

      Dershowitz basically argued that the president could break any law if he believed that it was in his/her best interest. (With a few intermediate steps e.g. that they believed they were the best president for the country.) And, since the president controlled the Department of Justice, that the president could legitimately stop any investigation or prosecution related to breaking the law in the prior election. While not stated, that implies that an incumbent president can do absolutely anything to stay in office.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 21 Sep 2020 @ 1:02am

      Re: More context isn't helping you there...

      "...if people are thinking that he's lost his mind that's probably because his argument was insane, suggesting that so long as they don't break the law any president has almost free reign in what they can do to influence their election without crossing into impeachment territory."

      His argument is insane and unethical, yes...but also correct. Strictly speaking as long as a sitting president doesn't break the law that president can indeed do anything at all to ensure their re-election.

      As Trump keeps proving.

      Admittedly, much of what Trump and his cohorts are doing would be illegal if you could prove intent. Which, of course, is the problem - because almost no matter what Trump does you can point to his history and state it's just "Donald acting on a hunch again, not a conspiracy or plan".

      reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 18 Sep 2020 @ 1:39pm

    Does he explain anywhere how he was misunderstood and what he supposedly meant to say instead because it doesn't seem like it's taken out of context the rest of the paragraph is just more along the same lines

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 18 Sep 2020 @ 1:44pm

    mostly you are right

    I understand what he's saying for the most part, even though it's just a longwinded excuse for corruption.. except this part "mostly you are right, your election is in the public interest".. There is always going to be at least a couple of them competing how can they all be mostly right that their winning will be in the public interest?

    reply to this | link to this | view in chronology ]

  • icon
    Tim R (profile), 18 Sep 2020 @ 1:50pm

    Dershowitz's lawyer (yes, he found an actual Florida man lawyer to file this lawsuit) talks about how only playing part of his long silly answer would lead people to believe that Dersh had "lost his mind"...

    Funny, filing this lawsuit lead me to believe he had lost his mind.

    Oh, and as a Floridian, I apologize for our state, for cranking out tripe like this. It's kinda what we do down here. I think it's the humidity, honestly.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Satoshi Chatani TENGA, 18 Sep 2020 @ 3:19pm

    Dershowitz was on Epstein's Lolita Island as well.

    Dershowitz was on Epstein's Lolita Island as well. This jew is just as guilty as his jewmates.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 18 Sep 2020 @ 6:15pm

      Donald Trump knew Epstein, too, so please shove your anti-Semitism back up your asshole.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 21 Sep 2020 @ 1:09am

      Re: Dershowitz was on Epstein's Lolita Island as well.

      Trump was Epstein's best friend for about 20 years up until Epstein got caught diddling an underaged girl on one of dear Donald's own parties, at which point Donnie made sure to take a step back. Up until that point, though, Here's what Trump had to say on Epstein in 2002;

      ""I've known Jeff for 15 years. Terrific guy. He's a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side.""

      • Donald Trump, 2002

      That relationship only soured two years afterwards, but if you're looking for someone who knew and hung out with his best pal Epstein all the time Epstein was screwing children then look no further than his best pal Donald Trump.

      But I guess the important part about Donald as far as you're concerned is that he isn't jewish, eh? Get your ass back to Stormfront. It's not welcome here.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Sep 2020 @ 3:42pm

    We don't get many of your kind of bigots here. Mind if we stuff you for posterity?

    reply to this | link to this | view in chronology ]

  • icon
    Simon Jester (profile), 18 Sep 2020 @ 6:59pm

    Reality Requires No Imiganation

    "The damage to Professor Dershowitz’s reputation does not have to be imagined."

    Factual reporting is like that. Sorry Prof...be less craptacular, and we'll mock you less.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2020 @ 6:24am

    He should know how free speech works , if someone quotes part of your speech accurately its not defamation.
    this is just a pointless lawsuit .
    being a famous lawyer you need to expect some people will be critical of you,
    its part of the job.
    like if you work in a coalmine you might get a bit dirty.

    reply to this | link to this | view in chronology ]

  • identicon
    Rocky, 19 Sep 2020 @ 3:18pm

    Hmm...

    Let's take a quote from Mikes post above:

    We're in a world of trouble

    Shit, now Mike is going to sue me for defamation...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2020 @ 4:42am

    Whilst the case is weird, what if CNN started taking words OUT of the middle of sentences? with current tech you can easily smooth words into each other so it sounds natural.

    I make sure that I'm always there for my family and I love to make stuff with my children.

    I make love with my children.

    Would that be defamation?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 20 Sep 2020 @ 8:04am

      Re:

      That would be defamation, because it would be deliberately changing what was said to imply that the speaker said something they did not say, but that's not what happened here so as hypotheticals it doesn't really mean much.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Sep 2020 @ 10:04am

      Re:

      what if CNN started taking words OUT of the middle of sentences?

      Sounds more like something Fox News would do.

      reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 21 Sep 2020 @ 12:18pm

    There is a lot to be said on the subject, but I'll object to any credentials Dershowitz has in the domain of law.

    The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal.

    Starting from there, he's already so very wrong. The quid and quo can both be perfectly legal, and the qui pro quo illegal. Quick example:

    • Giving money to someone is legal.
    • Voting for or against a specific law is legal.
    • Giving money in exchange for a vote on a given law is illegal. That's bribery, even in the US where most bribery (aka lobbying) is legal provided you don't make it specific. (You can bribe a politician as incentive to vote your way in general, but not for a specific vote. That's stupid, but you have the SCOTUS to thanks/blame for that.)

    Where did he go to law school?

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 21 Sep 2020 @ 5:29pm

    Florida Man Laughs at Dershowitz

    yes, he found an actual Florida man lawyer

    Not a problem. Hey, I would be willing to accept that file. Wait, what, you mean on the Plaintiff's side? That's different.

    A real Florida man would defend and have some fun laughing at the plaintiff. You will want to bring someone in from out of state to represent the Dersh.

    The plaintiff is revealed by his own words as a goof, probably the sort that is commonly produced in New York and environs. That is not going to encourage the native attys to represent him. But, like I said, you should be able to find someone from out of state that will take that side of the case.

    reply to this | link to this | view in chronology ]


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