In the US District Court for the District of Delaware earlier this month, Judge Bibas dismissed Michael Avenatti’s defamation claims against Fox News, which stemmed from Fox News’  coverage of Avenatti’s 2018 arrest for suspected domestic violence.  For Judge Bibas, this case fell squarely into the longstanding rule that “[n]ews outlets are not liable for minor mistakes, especially when reporting on public figures and matters of public concern.”  

Applying California law, the Court held that Avenatti’s claims failed on just about every element required to show defamation by a news outlet against a public figure.  The decision serves as a good refresher for media law practitioners on the ways in which defamation claims may be thrown out even on a preliminary motion.   

To recap the sordid facts, attorney Michael Avenatti rose to national prominence in early 2018 when he became a vocal critic of then-President Trump and represented Stormy Daniels in suits against the U.S. government seeking to invalidate a non-disclosure agreement regarding her alleged affair with Trump.  In November 2018, however, Avenatti fell out of public favor when news outlets widely reported that he had been arrested by the Los Angeles Police Department for suspected domestic violence. Avenatti's bail was set at $50,000 but prosecutors never formally charged him.  Fox News covered the arrest in multiple segments, and Avenatti claimed that many such statements defamed him.

Many statements cannot be proven true or false, so they cannot defame.  For starters, the Court held, the majority of the statements that Fox News reported could not be proven true or false, and therefore could not be defamatory.  For example, the Court held, Avenatti can’t prove the falsity of statements asserting that he was an “arrest waiting to happen” or was familiar with “bull___,” and therefore cannot meet his burden to show defamatory speech as a public figure.  Moreover, the Court held, opinions based on disclosed facts are protected, and listeners are free to “accept or reject” the opinions that were espoused by Fox commentators.

Minor mistakes are not defamatory.  The Court rejected Avenatti’s theory that parsed the distinction between a criminal arrest and formal charges.  According to Avenatti, Fox News reported that he was “charged” with felony domestic violence, when in reality formal charges were never brought by the city attorney’s office.  The Court said that while there may be a “difference to lawyers” between an arrest and a formal charge, Fox’s reporting captured the gist of the facts, and such a minor error does not rise to the standard of “materially false” speech that would be required to make out a defamation claim. 

No malice, no claim.  Given that Avenatti is a public figure, he must plead actual malice: that Defendants either knew their statements were false or made them with reckless disregard for their truth.  According to the Court, Avenatti failed to meet this burden, instead only providing “conclusory statements and implausible assertions.”  The Court flatly rejected Avenatti’s argument that Fox’s commentators should have conducted additional investigation before making claims, noting that even an “extreme departure from professional standards, without more, will not support a finding of actual malice.”

No special damages.  In California, a plaintiff seeking damages for the publication of libel or slander in news or radio publications must seek a correction within twenty days of learning about the publication.  A failure to do so will bar all recovery aside from limited special damages.  Since Avenatti never asked for a retraction, his recovery would be limited to special damages, which must be specifically alleged and proven, and which Avenatti failed to allege.

The Court dismissed Avenatti’s claims without prejudice, noting that perhaps Avenatti can cure the defects for some of his claims.  But given his recent felony conviction for attempting to extort millions from Nike, Avenatti’s focus may now be on other matters.