Guest post by Larry Johnson
A big, old, giant Sequoia has been knocked down in the mainstream media forest of lies and none of the fake news media are commenting on this development. Ok. Got your attention? The anti-Trump media playbook is to smear anyone who dares deviate from the Trump hatred meme. Up to this point the media has not been punished or held to account for their reckless use of lies to besmirch good people. Now meet Ed Butowsky, a Texas financial advisor ruthlessly attacked by NPR reporter, David Folkenflik. A Texas Judge has ruled in a case Mr. Butowsky brought against Folkenflik and NPR:
This is an action for defamation, business disparagement, and civil conspiracy filed by Plaintiff Ed Butowsky (“Plaintiff” or “Butowsky”), a Dallas investment advisor, against National Public Radio, Inc. (“NPR”),1 its senior media correspondent, David Folkenflik (“Folkenflik”), and certain former and current executive editors at NPR.2 According to Plaintiff, the defendants published false and defamatory statements about Plaintiff online and via Twitter between August 2017 and March 2018 – statements Plaintiff alleges injured his business and reputation.
NPR and Folkenflik filed a motion to dismiss. The Judge said no. The case will go forward:
The Court, having carefully considered the relevant briefing and hearing arguments of counsel February 7, 2019, recommends the motion be DENIED.
Oh oh. NPR could be paying out some big dollar to Mr. Butowsky.
Here’s how the judge explained the critical facts:
[Ed Butowsky] resides with his family in Plano, Texas and is an “internationally recognized expert in the investment wealth management industry.” Docket Entry # 1 at 7. He has been in the financial services industry for over twenty-nine years and has made hundreds of appearances on national television and radio shows. Id. at 7-8. In early 2017, Plaintiff contacted the family of Seth Rich to help the family investigate their son’s unsolved murder.6 Id. at 39, ¶ 58. Plaintiff offered to pay for a private investigator.
Ed Butowsky has been described as a Republican party activist. Essentially, that means he has donated money to a bunch of Republican candidates and offered advice on economic policy matters, but is not an activist. Ed also is a bit of a noble crusader. When he sees wrong he sets out to do something about it. The murder of Seth Rich in the summer of 2016 was brought to Ed’s attention by someone close to Julian Assange. Turns out he was friends with a couple of people who knew Julian Assange (Ed had no knowledge or association with Assange) and had access to Assange. Through those contacts he learned that Seth Rich was the source of the DNC emails passed to Julian Assange and was asked to reach out to the family of Seth Rich. (This is the story Ed tells and I believe him.)
Ed is Jewish and has a son. He empathized with the depth of loss suffered by Seth’s parents and reached out to them. They took him up on his offer.
The Judge continued:
On February 23, 2017, Plaintiff contacted Rod Wheeler via text message to see if Wheeler would be interested in investigating the murder. Id. at 39, ¶ 59. Plaintiff did not know Wheeler, but he had seen him on television and Wheeler appeared to be a competent investigator. Id. Plaintiff alleges the family of Seth Rich engaged Wheeler to help solve Seth’s murder. Id. at 18, n. 5.
Wheeler entered into a contract with the Rich family (specifically with Aaron Rich, Joel Rich and Mary Rich) to investigate the murder. Id. at 39, ¶ 60. Plaintiff was not a party to the contract between Wheeler and the Rich family, and his role and involvement in the investigation of Seth’s murder were limited. Id. at 39-40, ¶¶ 57, 61. According to Plaintiff, Wheeler investigated the matter and came up with the theory that Seth’s murder was not the result of a botched robbery. Id. at 18, n. 5.
On March 31, 2017, Wheeler appeared on Fox 5 DC and claimed he had been investigating Seth’s murder over the “past three weeks.” Id. at 42, ¶¶ 67-69. After the interviewer pointed out to Wheeler that people were “hinting at the fact that perhaps Seth Rich may have given some documents [to WikiLeaks],” . . . .
According to the Complaint, after Wheeler appeared on Fox 5 DC, he updated Malia Zimmerman, an “award-winning investigative reporter” employed by FoxNews.com, concerning his investigation. Id. at 43, ¶¶ 71-72. Wheeler was actively and extensively in contact with Zimmerman. Id. at 43, ¶ 73. In one of his texts to Zimmerman, Wheeler stated, “I’m ready to say that Seth’s [sic] Death was not a botched robbery and there appears to be a coverup within the D.C. Govt related to his death.” Id. at 43, ¶ 74; see also id. at 18, n. 5. Zimmerman, who knew Wheeler worked for the Rich family, asked Wheeler if the family was letting him talk. Id. at 43, ¶ 75. Zimmerman expressed interest in doing a story on the murder investigation, if Wheeler was “up to it.” Id.
On May 15, 2017, Wheeler was in contact with Zimmerman multiple times about an article Zimmerman was writing. Id. at 51, ¶94. Zimmerman provided Wheeler several “drafts” containing quotes attributed to Wheeler. Id. at 51-57. At no point in time did Wheeler ever deny making the statements quoted by Zimmerman; instead he offered further quotations. Id. at 55, ¶¶ 114-117.
On May 16, 2017, in the early morning, Fox published Zimmerman’s story entitled, “Seth Rich, slain DNC staffer, had contact with WikiLeaks, say multiple sources.” Id. at 58, ¶ 131. The article included the statements Wheeler had made and approved. Id. On May 16, 2017, after publication of Zimmerman’s article, Wheeler appeared on Fox News and was interviewed by Sean Hannity, where Wheeler again confirmed Seth had communicated with WikiLeaks. Id. at 59, ¶¶ 133-135. On May 16, 2017, Wheeler appeared on Fox Business with Lou Dobbs to discuss the Seth Rich murder investigation. Id. at 62, ¶ 139.
On May 16 or May 17, 2017, one or more members of the Rich family, or a spokesman for the Rich family, threatened to sue Wheeler for violating the terms of his contract with the Rich family by speaking with Marraco, Zimmerman, Hannity, and Dobbs. Id. at 64, ¶ 141. According to Plaintiff, the threats from the Rich family provided Wheeler with a motive to lie, backtrack, and distance himself from the quotes and statements he had made to Marraco, Zimmerman, Hannity, and Dobbs. Id. at 65, ¶ 144. Wheeler then “flip-flopped on virtually all the essential facts.” Id. at 67, ¶ 149.
Folkenflik and his editors tried to hide under the First Amendment and claimed that they were just reporting facts and offering honest opinions. The Judge described Butowsky’s claim this way:
Plaintiff’s claim implicates five reports that he alleges contain defamatory statements, four of which Folkenflik authored and NPR published, and one interview, published on Mediaite.com, in which Folkenflik discussed his reporting on the Wheeler lawsuit. As previously noted, Plaintiff argues the “gist” of the publications is that Plaintiff, a “Dallas investment manager” and “financial talking head,” concocted, spearheaded and actively participated with Fox News and the White house in a concerted scheme to promote “fake news.”23 Id.
The Judge then proceeds to give Folkenflik and NPR an ass whooping:
Evaluating the August 1 Report as a whole, the Courtfinds because of material additions and misleading juxtapositions, an objectively reasonable reader could conclude the report mischaracterized Plaintiff’s role in the Seth Rich investigationand “thereby cast more suspicion on [Plaintiff’s] actions than an accurate account would have warranted.”24 Turner, 38 S.W. 3d at 119 (“But by omitting key facts and falsely juxtaposing others, the broadcast’s misleading account cast more suspicion on Turner’s conduct than a substantially true account would have done. Thus, it was both false and defamatory.”). The August 1 Report as a whole is reasonably capable of a defamatory meaning because it goes “beyond merely reporting materially true facts.” White, 909 F.2d at 521. . . .
Folkenflik implied Plaintiff fabricated the story about Seth Rich and WikiLeaks. The Court agrees, especially when read in context with the rest of the statements contained in the August 1 Report. . . .
The Court finds the August 1 Report, as a whole, can be reasonably understood as stating the meaning Plaintiff proposes and is capable of defamatory meaning. . . .
The Court finds Folkenflik’s statements in the Mediaite Interview, as a whole, can be reasonably understood as stating the meaning Plaintiff proposes and are capable of defamatory meaning.
The August 7 Report contains three alleged defamatory statements: (1) Fox News had a “role” in “concocting a baseless story” on the death of Seth Rich; (2) Fox was involved in a “journalistic scandal” over the story; and (3) Fox “concocted” the story “in order to help President Trump.” Unlike the other reports discussed above, Plaintiff is not mentioned in the August 7 Report. According to the Complaint, the August 7 Report, “[r]ead together with the [August 1 Report], the overall tenor and context of Folkenlik’s messages was that Butowsky lied, was dishonest, and aided, abetted and actively participated in a fraudulent journalistic scandal.” Docket Entry # 1 at 36, n. 12.
According to Plaintiff, the overall “gist” is that Fox News and Plaintiff worked together, each playing a “role,” to “concoct” a “baseless story” that resulted in a journalistic “scandal.” Docket Entry # 32 at 24. At this stage of the proceedings, accepting the allegations in the Complaint as true, the Court finds the August 7 Report can be reasonably understood as stating the meaning Plaintiff proposes.
. . . .According to Plaintiff, Folkenflik’s statement, explicitly or by implication, accuses him of engaging in “activities” that caused harm to the Rich Family and that Plaintiff lacked empathy and understanding that his actions “affected” the Riches. The Court finds the August 16 Report, considered as a whole, can be reasonably understood as stating the meaning Plaintiff proposes and is capable of defamatory meaning.
. . . . Plaintiff asserts the word “player” carries a very heavy negative connotation and “highlights Folkenflik’s malicious agenda and extreme bias.” Docket Entry # 32 at 26. The Court finds the September 15 Report, as a whole, can be reasonably understood as stating the meaning Plaintiff proposes and is capable of defamatory meaning.
In sum, the Court finds Plaintiff has alleged the gist of the reports can be reasonably understood as stating the meaning Plaintiff proposes. Because the reports are “reasonably capable” of communicating the meaning Plaintiff proposes, the next question is whether that meaning is “reasonably capable” of defaming Plaintiff. Tatum, 554 S.W.3d at 637. The Court concludes it is, as discussed further below on actual malice.28
Folks, this is a Shaquille O’Neal equivalent of a slam dunk. I am sure that the NPR lawyers will continue to try to escape this judgment. Odds are they will fail. When that happens, they will be ready to sit down and negotiate a settlement to make this case go away.
Folkenflick is a hack. A partisan hack. Karma is a wonderful thing and Folkenflik is likely to get a heaping serving of karma. He chose not to report the story straight up. Instead, he chose to play politics and opted for a propaganda hit job. He is unworthy of the title, journalist.
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