630 F.Supp.3d 568
S.D.N.Y.2022Background
- Plaintiff Majed Khalil, a Venezuelan businessman, sued Lou Dobbs, Fox News Network LLC and Fox Corporation for four counts of defamation per se arising from post-2020-election broadcasts and tweets.
- On December 10, 2020 the @LouDobbs account (run by Fox) posted a document naming Khalil among "four names" to know and alleging he was a Venezuelan "right hand/business front man of Jorge Rodriguez," "COO" of an election project and a "liaison with Hezbollah."
- That same day Dobbs hosted Sidney Powell on Lou Dobbs Tonight, displayed a graphic "Four Names You Need to Know According to Sidney Powell," and repeatedly promised or referred to "evidence" of a "cyber Pearl Harbor" election attack.
- Khalil alleges the statements were false, harmful to his reputation, and that neither Dobbs nor Fox sought his comment; Dominion and Smartmatic had informed Fox and the public that Powell’s theories were false.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6); the court denied the motion, finding the complaint plausibly pleads falsity, defamation, actionable mixed opinion, and actual malice sufficient to proceed to discovery, and that Fox may be liable for statements by its on-air talent and accounts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statements are false and defamatory | Khalil: statements (liaison with Hezbollah, election "COO," involvement in cyber-attack) are false and defamatory per se | Dobbs/Fox: framed as reporting/commentary, not actionable | Court: Complaint plausibly alleges falsity and that statements are defamatory per se; survives dismissal |
| Whether Fair Report or Neutral Report doctrines bar liability | Khalil: statements are not reports of official proceedings; Powell not a responsible source; Dobbs/Fox adopted the allegations | Dobbs/Fox: relied on fair-report and neutral-report constitutional protections | Court: Section 74/fair-report inapplicable (no official proceeding or attribution); neutral-report doctrine inapplicable because Powell was not a responsible source, defendants espoused the claims, and rhetoric was non-neutral |
| Whether statements are nonactionable opinion | Khalil: statements convey provable facts and implied undisclosed facts/evidence | Dobbs/Fox: asserted the material was opinion/reporting, protected speech | Court: Statements are capable of being proven true/false and at minimum are mixed opinions implying undisclosed factual support — actionable |
| Whether Khalil must plead actual malice and whether Fox is liable | Khalil: he is a private figure but pleads facts suggesting reckless disregard/actual malice; Fox controlled accounts and Dobbs acted within scope | Dobbs/Fox: Khalil is (limited) public figure; Anti‑SLAPP and public‑interest rules raise actual malice requirement; Fox disclaims liability for talent | Court: Khalil is not a public or limited public figure; New York Anti‑SLAPP applies (election = public interest) so actual malice required, but complaint sufficiently alleges facts (reckless avoidance of truth) to plausibly plead actual malice; Fox plausibly liable for employee/agent statements and for tweets from accounts it controlled |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility requirement)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard)
- Edwards v. Nat'l Audubon Soc., 556 F.2d 113 (2d Cir. 1977) (formulation of the Neutral Report doctrine)
- Harte‑Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657 (1989) (actual malice: reckless disregard and purposeful avoidance of truth)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (distinguishing public vs. private figures for defamation)
- Celle v. Filipino Reporter Enters., Inc., 209 F.3d 163 (2d Cir. 2000) (factors for determining opinion vs. fact)
- Gross v. New York Times Co., 82 N.Y.2d 146 (1993) (whether reasonable reader would view statement as conveying facts)
- L. Firm of Daniel P. Foster, P.C. v. Turner Broad. Sys., Inc., 844 F.2d 955 (2d Cir. 1988) (discussion of neutral report privilege and related First Amendment considerations)
- St. Amant v. Thompson, 390 U.S. 727 (1968) (factors for assessing recklessness as to falsity)