OP-ED: What a costly lawsuit against investigative reporting looks like

Last week, a federal court in California issued a 44-page order throwing out a libel lawsuit filed in 2016 against Reveal, a non-profit newsroom run by The Center for Investigative Reporting, by Planet Aid, an international charity that received US government funds for aid programs. Planet Aid filed its lawsuit in August 2016 after Reveal published several stories based on almost two years of reporting which tied the charity to an alleged cult and raised questions about the charity’s spending. Reveal’s investigation attracted the attention of the British government, which cut off funding to Planet Aid’s subcontractor and launched a probe into suspected foreign-aid fraud. While the judge’s decision is an unequivocal legal win for Reveal, it took more than four-and-a-half years and millions of dollars to get there. 

The ruling comes at a time when defamation law is having an unexpected moment in the sun. Last month, when Smartmatic brought a $2.7-billion libel lawsuit against Fox News, some suggested that defamation suits are just what the marketplace of ideas needs; Ben Smith, the New York Times media columnist, praised the suit for discouraging the amplification of falsehoods. 

But such boosterism is short-sighted. Defamation cases such as the Smartmatic lawsuit may be a “useful corrective,” Yochai Benkler, a professor at Harvard Law School, recently told the Times. However, he added, “we have to be very cautious in our celebration of these lawsuits, because the history of defamation is certainly one in which people in power try to slap down critics.” 

On paper, Reveal achieved complete success. In the order to dismiss, a federal judge wrote of Reveal, “defendants were engaged in the typical editorial process of fact-checking and revising drafts of their articles prior to publication, after which they confirmed the reliability of that information.” In essence, our reporters did their job. 

But the victory is somewhat pyrrhic. Fighting Planet Aid’s complaint was exceptionally costly to Reveal—both in lost reporting time and in other employee resources. Still, the effort was necessary for a case where Planet Aid alleged an estimated $25 million in damages, a sum that is twice CIR’s annual budget. 

While seemingly stratospheric, such devastating damage claims are not out of the ordinary. Over the past decade, the press has suffered an increasing trend of costly cases, including but not limited to defamation cases. Hulk Hogan’s 2013 privacy lawsuit against Gawker sought more than $100 million in damages from the publication. Writing for CJR, Trevor Timm, executive director of the Freedom of the Press Foundation, described the case as “structured…to do maximum damage,” and called the case a “blueprint for destroying a news organization.” In 2016, ABC News settled a billion-dollar defamation lawsuit brought by a South Dakota-based beef production company at the cost of $177 million. ABC maintains that its reporting was factually accurate

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What was once a blueprint has now turned into a thick playbook, with the power to wreak havoc on newsrooms—particularly on nonprofits, such as Reveal, that focus on long-term investigations. Here are a few plays that plaintiffs might use against news outlets, and how they were used in our case:

File a really long complaint with copious other documents. The 276-page complaint filed by Smartmatic against Fox News may present some strong claims. But length isn’t necessarily a sign of overall merit. Many other defamation complaints tend to be bloated with improper arguments, which can create the false appearance of grievous wrongdoing and sloppy reporting committed by the media entity being sued. 

In our case, Planet Aid listed 80 objections to CIR’s reporting in its nearly 70-page complaint. This approach was repeated in other filings in the case against Reveal, creating a time-consuming workload for the district court judge, who is duty-bound to investigate every claim to mitigate the risk of reversal on appeal. The result was costly, protracted litigation.

Sue in far-away courts that have plaintiff-friendly laws. Defamation plaintiffs sue newsrooms in remote jurisdictions to benefit from more favorable laws and friendly courts, all while draining newsroom resources in the process. This practice is known as forum shopping, and it’s as old as the seminal New York Times v. Sullivan case. In that case, the Times was hauled more than a thousand miles to Alabama to defend its publication of an advertisement supporting the Civil Rights Movement. More recently, the tactic was used in the Gawker case, which was tried in Florida, and the ABC “pink slime” case, which was tried in South Dakota. 

In Reveal’s case, Planet Aid tried at least five times to bring the case to Maryland instead of California, where CIR is located. Although Maryland does have an anti-SLAPP statute, which is designed to quickly bat down defamation suits, it is far weaker than California’s own anti-SLAPP statute. Maryland’s law does not provide an automatic right of appeal, nor does it permit a winning party to get attorneys’ fees. And even though both the Maryland and California courts concluded that California was the proper place for trial, Planet Aid still continued to ask for the case to be returned to Maryland. 

Employ costly discovery.  Some anti-SLAPP statutes allow defendants of meritless libel cases to escape discovery and, in turn, minimize costs of protracted litigation. Sadly for media defendants, federal judges have rejected the application of these state procedural rules in their courtrooms, permitting discovery to proceed against defendants in defamation suits. In our case, the discovery process took nearly two years and involved the disclosure of  hundreds of thousands of documents related to CIR’s reporting, as well as 500 audio recordings based on 200 interviews conducted in distant places including Denmark and Malawi. On top of being costly and time-consuming, this discovery was invasive, in that it gave Planet Aid access to journalists’ source material.

While Planet Aid was able to scour many of our reporters’ notes, CIR was fortunately able to assert  the so-called “reporter’s privilege,” which can protect a reporter’s confidential sources. This was good in terms of the integrity of our reporting but crushing in terms of resource costs, as lawyers needed to be meticulous in combing through mountains of notes, e-mails, whistleblower reports, and audio tape to redact identifying information. This took thousands of hours, amounting to millions in legal fees on discovery alone. It also necessitated help from not one, but two law firms—Davis Wright Tremaine and Covington & Burling—as CIR’s own legal department couldn’t handle this work on its own. This taxing discovery also affected our newsroom, as it took CIR staff away from their reporting and hampered their ability to do their jobs; as one of CIR’s attorneys bemoaned at a hearing, the discovery process was “so burdensome that we ha[d] two reporters and one editor working full time on this.” All of the time CIR had to spend defending their prior work could have been spent conducting new investigations. None of this time is recoverable.

Limit discovery to defendants. When an anti-SLAPP motion is filed in federal court, judges may allow plaintiffs to dig into defendants’ records without allowing defendants to do the same to the plaintiffs. In our case, discovery didn’t go both ways. Although Planet Aid was permitted to gather copious and detailed information about CIR’s reporting, CIR was not permitted to do the same. This asymmetry meant that Planet Aid could make it as difficult and as expensive as possible for CIR to continue its defense without experiencing a similar drain on resources or confronting a comparable level of judicial review, skepticism, and inquiry. 

While generous pro-bono legal assistance helped to spare us from financial ruin, Reveal will never be able to recover the time that could have been spent on reporting, or forget the stress that a multi-million-dollar lawsuit inflicts on its employees. To make matters worse,  other news organizations might look at this lawsuit and decide that reporting on powerful or deep-pocketed organizations isn’t worth the risk. For every Smartmatic case lauded as a promising defense against disinformation, there are also outcomes like ours.

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D. Victoria Baranetsky and Alexandra Gutierrez D. Victoria Baranetsky serve as a Knight News Innovation Fellow at the Tow Center and General Counsel at Reveal from The Center for Investigative Reporting; Alexandra Gutierrez is a First Amendment Fellow at The Center for Investigative Reporting.

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