Before he filed his defamation lawsuit on Monday against The Atlantic, FBI Director Kash Patel said he had a claim that “some would call a legal lay up.”
It’s unclear who would call it that. But in any event, it’s unlikely that Patel will have as easy a time in court as he suggested.
His suit stems from a damning report published Friday that was written by Sarah Fitzpatrick. She is also named as a defendant in Patel’s complaint, which describes the report as a “sweeping, malicious, and defamatory hit piece.”
Citing unnamed current and former officials as sources, Fitzpatrick wrote, among other things, that Patel “is deeply concerned that his job is in jeopardy” and that he “has good reasons to think so — including some having to do with what witnesses described to me as bouts of excessive drinking.”
Commenting on a clip of the reporter defending her work in an interview with MS NOW’s Jen Psaki, Patel wrote Friday on social media: “see you and your entire entourage of false reporting in court. .. But do keep at it with the fake news, actual malice standard is now what some would call a legal lay up.”
The “actual malice” standard is a notoriously difficult one for public-figure plaintiffs to meet. They must show that defendants knowingly published falsities or recklessly disregarded the truth.
So, it’s more than simply showing any factual errors or mistakes, and it’s unclear the extent to which Patel can even do that. Claiming something is false isn’t proof of actual malice — indeed, claiming something is false isn’t even proof that it’s false. And if something turns out to be false, the plaintiff still needs to show that the defendants had knowledge of falsity or were reckless in their disregard for the truth.
Taking a step back, there has been a quest by conservatives to overturn the Supreme Court precedent that established the actual malice standard. The justices denied a petition from a Donald Trump donor who attempted to do so last year. A pending petition from Trump impeachment lawyer Alan Dershowitz against CNN asks the justices to consider whether the standard “should be discarded altogether or at least as to private citizens who are public figures.” We may find out later in the spring if the court is interested in taking up the issue, though it hasn’t seemed eager to do so.
Meanwhile, Trump himself has been losing a defamation case he filed against CNN over the network’s use of the phrase “big lie” regarding his claims about the 2020 election. He’s been losing in part due to his inability to prove actual malice.
Separately, a judge recently rejected Trump’s suit against The Wall Street Journal regarding its reporting on his relationship with Jeffrey Epstein, finding that he “has not plausibly alleged that Defendants published the Article with actual malice.” As will perhaps be also relevant to the Patel litigation, the judge wrote that Trump’s “conclusory allegation that Defendants had contradictory evidence and failed to investigate is rebutted by the Article and is insufficient to establish actual malice.”
When the president filed his Epstein suit against the Journal, I noted the tough legal standard as part of the reason he faced an uphill battle. The same is true for Patel.
The Atlantic will have an opportunity to respond in court with its legal argument for why the FBI director’s complaint should be dismissed. On Monday, the outlet issued a statement saying it stands by the reporting and calling Patel’s suit “meritless.”
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The post Kash Patel suggests his defamation case against The Atlantic is a ‘legal lay up.’ It’s not. appeared first on MS NOW.
