Gen. Michael Flynn’s Brother v. CNN Lawsuit Over Allegations of Being a “QAnon Follower”

Blogged about today’s Magistrate Judge decision. It would have ended the case entirely on the ground that all the allegations were substantially true.Flynn v. CNN) by District Judge Gregory H. Woods (S.D.N.Y.However, this is a very different approach.

“CNN Goes Within A Gathering Of QAnon Subscribers” was aired by the Defendant Cable News Network (“CNN”) on February 3, 2021. It also featured a short clip featuring Lieutenant General Michael Flynn declaring that “wherever we go one, it will all.” In the clip, plaintiffs John P. (or Jack) and Leslie A. Flynn are seen standing beside General Flynn who is Jack’s younger brother. They claimed that the Flynns aren’t QAnon followers and brought defamation claims against CNN. CNN attempted to discredit the Flynns claim, arguing that Twitter activity by the Flynns established that they were QAnon fans.

On October 22, 2021, Magistrate Judge Sarah L. Cave issued a Report and Recommendation (the “R&R”) granting CNN’s motion to dismiss the Flynns’ claims with prejudice. The Court adopts the R&R in part and rejects it in part. Flynns and CNN have not plausibly pleaded for special damages. Per seThe Flynns’ claim for defamation is therefore dismissed. The Flynns have not sufficiently alleged a false-light claim. For those, and the other reasons set forth below, CNN’s motion to dismiss is GRANTED in part and DENIED in part….

Judge Cave concluded that Flynns tweets proved they were QAnon fans. The inquiry into whether the Flynns had been QAnon supporters, or specifically, whether they were “followers”, as the term is used in context of CNN’s publication is extremely fact-intensive. Here, the Flynns specifically allege that they are not QAnon followers and allege that Jack’s tweets show that he “embraced the Constitution and equal justice under the law … not the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon” and that he has “denied basic tenets of the QAnon movement.”

The Court must not discredit the Flynns factual claims at the motion-to-dismiss stage and draw any reasonable inferences for their favor. Additionally, “[t]”The truth of factual allegations that are not supported by proper documents on a motion for dismissal need not to be accepted,” Flynns tweets don’t contradict their factsual claims. Despite their support of QAnon in tweets, which are also evidence that Flynns were QAnon fans, the Court is unable to weigh all evidence for a motion not to dismiss. The Court is instead charged with assessing the legal viability of the complaint.

Since the Court accepts Flynns’ claim that they don’t QAnon followers as true, Flynns also plausibly asserted that CNN’s statement wasn’t truthful. Consequently, the Flynns have also plausibly alleged that CNN’s statement was defamatory…. “[F]Defamatory statements that suggest a link to violent extremist groups can also be implied. …

[But t]You can properly plead your defamation claim [under Rhode Island law]Flynns have to either file a claim for special damages or assert that CNN’s statements can be taken as defamation. Per se. “[D]efamation Per se This is different from defamation, because the plaintiff may establish liability in defamation without showing any special or pecuniary damage. This presumption is based on the fact defamation can be used against someone. Per se Situation, defamatory statements can cause reputation damage and egregiousness.

It fails to provide sufficient evidence to prove that Flynns sustained special damages. Flynns need to allege economic damage in order to establish special damages.

Although Jack claims that he is “afraid that he will be terminated,” the complaint does not contain any facts to support that the Flynns have suffered any actual economic harm….

Also, the Flynns fail to properly plead CNN’s defamatory statements. Per se….  “To be actionable [defamation] Per se—without proof of special damages—the false statement must impute to the other: (1) a ‘criminal offense,’ (2) a ‘loathsome disease,’ (3) a ‘matter incompatible with his business, trade, profession, or office,’ or (4) a ‘serious sexual misconduct.'” For defamation affecting a business, “a statement is defamatory Per se If the charge is for improper conduct or lack of skill in one,[‘]It is a profession or business that is so dangerous as to be harmful to the individual in it.” “[T]The plaintiff must be affected by the disparaging words in a way that is particularlly harmful in the course of his profession or trade. Discrediting a broad character is equally damaging to everyone.

The complaint claims that CNN’s comments “accuse or impute Plaintiffs an inability to perform the duties o an office for profit including being members of dangerous, violent, terrorist, and domestic organizations.” Flynns argue, “[b]CNN has portrayed the Flynns as being violent, immoral, and lacking good judgement. They haven’t alleged that Jack, a general manager of seafood processing businesses, and Leslie, a stay at home mother are unique examples of these attributes. Flynns accuse of defamation generalizations that are equally damaging to everyone. Per se Rhode Island law. Flynns didn’t claim they were the victims of special damages, nor that CNN’s comments were defamatory. Per se, CNN’s motion to dismiss the Flynns’ defamation claim is granted….

[But f]or the reasons described above, the Flynns have plausibly alleged that CNN published a false fact which implies an association which does not exist—that the Flynns were QAnon followers. CNN doesn’t dispute the fact that the Flynns adequately pleaded all elements of the false light claim. The Flynns therefore have properly pleaded the false light claim. Check out 9 R.I. Gen. Laws § 9-1-28.1(a)(4). CNN is refusing to deny the Flynns false light claim.

In the end, the court quotes the Rhode Island false-light statute as follows:

It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include … [t]He has the right to be protected from any publicity that unfairly portrays another person before the public [which covers situations where] …

(A) A publication has been made of false or fictitious facts that implies an association that does not exist.

(B). The publication or implicit association would be unacceptable for the average reasonable man in these circumstances.