With all the discussion of “fake news” in recent years, it is important to remember that a free press is critical not only to the functioning of our government but also in holding businesses and other private entities–such as hospitals–accountable to the public. Indeed, good reporting often exposes private abuses and negligent acts that enable victims to pursue personal injury claims.
Carbone v. Cable News Network, Inc.
With that in mind, the U.S. 11th Circuit Court of Appeals in Atlanta recently issued a major decision in a case involving the use of Georgia law to stop a defamation lawsuit against CNN. The plaintiff in this case previously served as CEO of a hospital in Florida. During his tenure, CNN published a report that claimed the hospital’s mortality rate for pediatric, open-heart surgery was more than three times the national average.
The plaintiff maintains that CNN intentionally misrepresented its statistics. In fact, he alleged there was “no statistically significant difference” between the mortality rate at his hospital and the national average with respect to pediatric, open-heart surgeries. Nevertheless, the plaintiff said CNN’s reporting–and its subsequent spread via social media–did sufficient damage to the hospital’s reputation. Indeed, the plaintiff alleged the scandal forced him to resign as CEO, while the hospital ended up closing its entire pediatric cardiology program.
The plaintiff then sued CNN for defamation. CNN moved to dismiss the lawsuit under Georgia’s anti-SLAPP law. SLAPP stands for “strategic lawsuits against public policy.” Basically, the anti-SLAPP law allows a judge to strike a claim against a person or corporate entity based on an act “in furtherance” of their First Amendment rights.
The plaintiff brought his lawsuit in federal court, and the federal judge overseeing the case ruled the anti-SLAPP law did apply here. Instead, the judge applied federal civil procedure rules, under which the plaintiff presented a “plausible” defamation claim.
CNN appealed the judge’s ruling to the 11th Circuit, but the appeals court upheld the trial judge’s order. First, the 11th Circuit explained that Georgia’s anti-SLAPP provisions conflict with multiple federal court rules. The Georgia law creates a “special” provision to dismiss a lawsuit before there is even pre-trial discovery. This rule requires the plaintiff to establish “a probability” that he “will prevail on the claim” if it proceeds to trial. In contrast, federal court rules only require the plaintiff to present a “plausible” claim to survive a motion to dismiss. As the 11th Circuit observed, a federal court will allow a claim to proceed “even if it strikes a savvy judge that actual proof of those facts is improbable.”
The upshot of this is that CNN is not entitled to dismissal under the Georgia anti-SLAPP rule, but this is not the same thing as a ruling against it on the merits. Rather, the plaintiff is entitled to conduct discovery, i.e. depose witnesses and demand CNN turn over relevant documents. CNN could still prevail in a motion for summary judgment following discovery or at a future trial.