EDITOR'S NOTE: After publication, we were contacted by a PR firm representing Planet Aid. They took issue with our characterization of Reveal’s reporting on “abuse of US Foreign Aid by the charity and its subcontractors.” Although the Reveal series reported on Planet Aid’s use of grant money, following a two-year investigation, and the judge dismissed Planet Aid’s lawsuit with prejudice under California’s anti-SLAPP statute, we acknowledge, at the request of Planet Aid, that the judge also held in the recent ruling (full decision available on our website) that Planet Aid had demonstrated that a number of specific factual assertions made by the Center of Investigative Reporting were false. Planet Aid also reached out to the Center of Investigative Reporting prior to filing its lawsuit asking for a retraction and correction.
Bob: In 2016, The Reveal Podcast of the Center for Investigative Reporting produced a multi-part expose on the Maryland-based charity Planet Aid and its connection to a Danish cult called Tvind. The series documented abuse of US Foreign Aid by the charity and its subcontractors. The diversion of charity donations to the cult, the shakedown of its own employees to kickback chunks of their salaries and elaborate efforts to disguise the schemes from government auditors on the ground in East Africa. Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel.
A week ago, a federal judge in California ruled in favor of the Center for Investigative Reporting. It was a victory at the expense of millions of dollars in legal fees and thousands of man hours. For those who are savoring defamation suits against Fox News for its voter fraud lies and incitements, the Planet Aid case is a sobering object lesson in the dangers posed by libel cases to even the most scrupulous and rigorous journalism. Victoria Baranetsky is general counsel at the Center for Investigative Reporting. Victoria, welcome to OTM.
Victoria: So nice to meet you, Bob.
Bob: Congratulations, I guess. What did it cost you guys to be proven non-liars?
Victoria: [chuckles] It cost us quite a heavy final number, upwards of several millions dollars. Moreover, it cost a lot of time, resources, and sleepless nights for myself and everyone else involved with this case.
Bob: More on the implications of this litigation to follow, I promise. First, please just give me a capsule version of the reporting that you did that led to the lawsuit and the story's revelations.
Victoria: Sure. This investigation was almost a two-year long investigation and that two of our most esteemed reporters at that time took on to look into how government funds and grants were meted out to different organizations, in particular Planet Aid, and how those resources were then used. They published a series of stories both in radio and in print which lead, ultimately, to the lawsuit at issue.
Bob: Let's talk about SLAPP laws. The Planet Aid litigation, I think to any fair observer, is a classic SLAPP suit. One filed with probably little expectation of success in court, but to harass or bankrupt or silence the defendant. After some wrangling, the case was heard in California which has a pretty robust anti-SLAPP statute for the very purpose of discouraging frivolous litigation, wars of legal attrition. Why didn't that statute help you at the very beginning?
Victoria: This case, all the things that could have gone wrong did, in many ways. The whole purpose of an anti-SLAPP law is to truncate litigation, to say to the court, "Hey, there's nothing with merit here to see." Despite that, there are now various procedures and tricks that parties can pull that doesn't let anti-SLAPP do its job. First off, there is no federal anti-SLAPP legislation. They are passed state by state, which allowed for plaintiffs to first bring this case in Maryland and then took a really long time to even get it to California, the proper jurisdiction. One of the reasons that happens is because different states have different types of anti-SLAPP measures with different protections.
Some anti-SLAPP laws have attorneys fees afforded at the end, some permit for there to be no discovery. For those who don't know what discovery entails, that includes document requests, fulfilling them, answering questions for the other side and even depositions, which we had in this case multiple. California, like you mentioned, has one of the most robust anti-SLAPP laws but even in this case, we found that wasn't quite enough. One of the quirks of federal law in California is even though discovery is not permitted on the state level, if the case is brought into federal court, California federal district courts have begun to permit for discovery in those cases.
For example, in California, as I mentioned, discovery was granted to plaintiffs. That, in and of itself, after we finally won the battle of jurisdiction, took almost two full years to get through.
Bob: I've read your writing on this five-year nightmare and maybe this is overstating the case, but you seem to have a grudging respect for opposing counsel who seem to design their suit in such a way as to be the most destructive, win or lose. Can you tell me their secrets for inflicting pain on the Center for Investigative Reporting? You mentioned the discovery burden, but there was also just the sheer length of their complaint.
Victoria: Right. Their complaint was about 66 pages almost 70 pages long. While, in some cases, length may show the robust nature of the claim, here it was simply a burden that the district court had to attend to by going through and swatting down and ensuring that everything that they ruled on was, in fact, scrupulously determined. Defamation cases often deal with a stray remark said about someone and it just ends up being one line and is that one line defamatory, but because our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles.
Bob: You already mentioned that the case began in Maryland, which from the outset was another tactic by the plaintiffs. Forum shopping, trying to find the most favorable venue for the case where the anti-SLAPP laws are weaker.
Victoria: Yes, that's right. Anti-SLAPP laws really vary around the country. Texas and Virginia, for example, and Maryland, are all new news states where there are not as robust anti-SLAPP laws in comparison to a place like California. That often permits for parties to try to find a place that will help them along in their anti-SLAPP litigation. That's what we seem to have here, a case where the parties brought the claim in Maryland even though no reporting was done in Maryland. We had one editor who had some contacts with the state but for the most part, the Center for Investigative Reporting is based in California.
The reporting was done in California, the editing was done in California and the entire production was done in California, making California the appropriate jurisdiction and the Maryland Court determined that was the case, pushed it over to California. The California court agreed and even when plaintiffs asked one more time for the court to reconsider jurisdiction, the California court yet again determined the California was the right place. That might seem like a small factor, but actually just even making that determination took almost over a year of briefing before the courts to show that that was, in fact, the correct jurisdiction to ultimately have the right laws apply.
Bob: For all the good it did you, Victoria, because as you say, once the Federal Court got involved, they decided to give the plaintiffs the right of discovery, which was onerous to say the least and expensive, and they deprived you of the right for a counter-discovery. You were not free to go into Planet Aid or its affiliate organizations to demand documentation in the way that they were permitted to go into every nook and cranny of your operation.
Victoria: Listen, I'm not advocating for there to be discovery in SLAPP suits, but where it is granted for one side, especially in these kinds of cases where as a plaintiff you're just trying to show that it's a meritless case, that you'd be afforded the same opportunities that the opposing side is. For example, looking into questions about whether someone hypothetically is or isn't a public figure and being able to ask the opposing side, "Hey, do you have marketing materials that you can disclose to us? Do you have someone on your staff who is a marketer or is involved with public relations?" All those things would go to a public figure analysis that has a huge impact on how the actual malice standard is applied.
Bob: Now I'm going to be extremely cautious with my language here. For one thing, you ended up prevailing in court. The judge ultimately found in your favor, but what was she thinking when she awarded the right of discovery to the plaintiffs, even though they had produced essentially zero evidence of careless reporting?
Victoria: She wanted to have all the information before her. In most cases that makes sense, so that if the case is taken up on appeal, the district judge can say, "Listen, I did my job. I fished through all the material and I really made an informed decision here." In a lot of cases, that makes sense but SLAPP stands for strategic law against public participation, anti-SLAPP. It's supposed to essentially tamp down the amount of resources and time that go into a lawsuit like this one, and discovery really just prolongs that. You should be able to tell enough on the face of the complaint and what's available that there's no merit to the case and it's really being used as a tactic to weigh down defendants.
Bob: If you're a federal judge, it's perfectly understandable to not wish to be reversed upon appeal because you failed to do your due diligence. On the other hand, if you know pretty transparently that this was a suit meant to harass, you might consider that your caution about a potential appeal is giving the plaintiff exactly what they're looking for. You won, pending possible appeal, but it was so costly to your organization and to journalism. Tell me about Gawker.
Victoria: Gawker is an infamous case among media counsel. It's actually a privacy case, not a defamation case, but there the case was brought by Hulk Hogan and later found out that it was funded by Peter Thiel, the libertarian Silicon Valley multimillionaire. The lawsuit was brought by these parties because of a video, a sex tape, that Gawker published on its website involving Hulk Hogan. Multiple times, the federal district court said that Gawker was in the right and would likely be successful on the merits.
Bob: Because, while not necessarily the Pentagon Papers, the story was true on the facts. There was no question as to whether that tape existed and there was no defamation per se in publishing it.
Victoria: Correct. The Federal Court ultimately said that the case would be protected under First Amendment principles because it was truthfully reported.
Victoria: And that's a big but. The case first had to go through the state court and it was a really long drawn-out lawsuit and by the time the case ended up wrapping up, Gawker didn't have enough money to pay the legal bills or its own electric bills and ended up closing shop. There are a lot of opinions on that case and whether or not it was the right outcome despite the law, but one of the big takeaways is that, regardless of what the case is about, litigation is costly and not everyone can afford lawsuits like that. Especially nonprofit newsrooms like ourselves, Mother Jones, and other important news organizations that do intrepid reporting.
Bob: In the introduction, I referred to the defamation suits filed against Fox News and others by the companies who make voting machines and the software that were smeared by Donald Trump and his media allies with his stolen election big lie. I must say, when those cases were filed, half of me was pretty delighted because $1.6 billion, I imagined that judgment against Fox News Channel, I'm like, "Oh, yes." The other half of me remembered Gawker and how lawsuits can destroy a media organization, even one reporting truthfully. Knowing what you know and experiencing what you've just experienced, should I listen to the angel on my left shoulder or the devil on my right?
Victoria: I think ultimately, I don't want anyone coming away from hearing this and thinking that falsehoods have a beneficial place in our culture because we've learned over the past few years that in disinformation, misinformation economy, falsehoods can create real harms, so there have to be limits. There has to be breathing space, but there certainly has to be limits. On the other hand, there also needs to be protection for reporting of public figures in a way that allows for reporters to do their job accurately and appropriately and not being penalized for it.
I teach media law at Berkeley Law School and, frankly, it's older than the First Amendment, the reality that defamation law was often used by the British crown to penalize individuals who spoke out against it. We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread. The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line. That's the role of the anti-SLAPP law in this country and the problem is that, right now, anti-SLAPP laws have been weakened around the country and there is no consistent framework because there is no one federal anti-SLAPP law.
Bob: Well, Victoria, thank you very much.
Victoria: You're welcome.
Bob: Victoria Baranetsky is general counsel at the Center for Investigative Reporting.
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