PHILADELPHIA – Counsel for Newsweek Magazine claim a defamation suit filed against it earlier this year by the parents of a child supporter of President Donald Trump should be dismissed with prejudice, saying the plaintiffs haven’t met the higher standard of defamation associated with a public figure.
On May 21, attorneys for Newsweek filed a motion to dismiss Brian and Melissa McCafferty’s lawsuit with prejudice for failure to state a claim – alleging their personable absence from the article in question leaves them unable to argue defamation, that the article is not actionable due to its content being opinion-based and not fact-based, and that they have not have met the burden of the proof required for defamation of a public figure, their son.
The McCaffertys (individually and on behalf of their minor son, “C.M.”) of Philadelphia initially filed suit in the Philadelphia County Court of Common Pleas on Feb. 21 versus Newsweek Media Group, Ltd.
The plaintiffs launched a defamation lawsuit against Newsweek, for labeling their son as a “Trump Mini-Me” and as a part of a sinister plot by the political alt-right in “defending raw racism and sexual abuse.”
The litigation was later removed to the U.S. District Court for the Eastern District of Pennsylvania on March 27. In response to an initial motion to dismiss filed April 16, the plaintiffs filed an amended complaint on May 7, one which is the subject of the pending motion to dismiss.
The McCaffertys alleged their son, referred to in the litigation as C.M., was unfairly characterized in an article titled “Trump’s Mini-Mes," published in a January print edition of Newsweek and which displayed his full name and photograph.
“As set forth in the offending article, the defendant characterizes C.M. as part of a ‘weird little army’ of ‘mini-mes’ that has been ‘weaponized’ – by the ‘alt-right’ and/or his parents – as part of a greater scheme to defend ‘racism and sexual abuse,' and, even more offensively, all under a picture of C.M. In fact, nothing could be further from the truth, and the defendant knew or should have known this,” the suit stated.
A copy of the print version of the article is included an exhibit in the complaint.
The McCaffertys argued Newsweek claimed the “voices behind C.M. are hiding behind children as part of yet another sinister plot to weaponize children through the seduction of becoming ‘a celebrity'” and that the magazine feels “no child has the right to organically develop a conservative point of view…it must be part of a bigger, sinister plot to exploit or hide behind children.”
“In reality, it is Newsweek itself that is disgracefully ‘weaponizing’ children, as the reckless article brands and punishes a child simply because he chooses to exercise a First Amendment right to be conservative,” the plaintiffs alleged.
The McCaffertys claimed a Newsweek editor recently admitted that “the sexual abuse of children will always exist” and “sometimes, it leads to great art," leading them to harshly criticize the publication throughout the lawsuit.
“Thus, Newsweek condones an editorial belief that pedophilia potentially ‘great art,' and now, this article deliberately weaponizes children to promote racism and sexual abuse, all for a desperate Newsweek to sell magazines. The truth behind Newsweek’s sloppy, poor and sensationalist journalism reveals that Newsweek is doing to children exactly what it falsely claims others are doing, but to an unprecedented manner by improperly crying that C.M. has been ‘weaponized’ by the alt-right to promote racism and sexual abuse,” the plaintiffs stated.
“To forever link C.M. and his parents to a scheme designed to defend racism and/or sexual abuse in any manner whatsoever is false, defamatory and outrageous, and no reasonable journalist or editor would ever have permitted such a reckless and malicious publication.”
According to the McCaffertys, Newsweek never attempted to contact them to discuss the article in question, which remains available on the publication’s website. They claim the article was a “heinous, horrendous, demonstrably false and malicious message” which has left their child under “a highly-offensive, national attack.”
The online version of the article is instead titled “Trump’s Child Crusaders” and does not feature a sub-headline referring to the political alt-right’s “weird little army” of child supporters.
However, counsel for Newsweek have written that the McCaffertys have no standing upon which to argue defamation, citing Supreme of Court Pennsylvania precedent in Schonek v. WJAC, Inc. which states, “Defamatory words, in order to be actionable, must refer to some ascertained or ascertainable person, and that person must be the plaintiff.”
“Brian and Melissa McCafferty’s claims must be dismissed with prejudice for the simple reason that the article is not about them. They are neither mentioned by name nor referred to in any manner. The adults Prof. Gitlin criticizes are those such as Alex Jones and Jennifer Lawrence who put children on their media platforms to soften their own images. No reasonable reader would interpret the article as conveying anything at all about C.M.’s parents, let alone anything defamatory or highly offensive,” defense counsel Michael Berry stated.
Furthermore, Berry argued C.M. made himself a limited-purpose public figure through his published online videos, and therefore, is the subject of a higher standard in which to prove defamation and false light than if he were a private individual.
“Because C.M. has voluntarily injected himself into the rough-and-tumble political discourse about President Trump and other political issues, he is considered a public figure who must establish that Newsweek published the article mentioning his media appearances with actual malice – i.e., knowing it was false or seriously entertaining doubts about its truth,” Berry said.
“The First Amendment requires these ‘limited purpose’ public figures to meet the higher actual malice standard because they ‘voluntarily put themselves in a position of greater public scrutiny and thus assume the risk that disparaging remarks will be negligently made about them.”
Berry added the McCaffertys’ complaint falls “far short” of what is required to sufficiently plead actual malice.
“The bare allegation that the article was a ‘knowing or reckless portrayal’ that was false, is just the sort of ‘rote recital of the elements’ and ‘actual-malice buzzwords’ the Court should disregard. The remainder of plaintiffs’ allegations are textbook examples of what does not constitute evidence of actual malice. A defendant’s desire to improve its ‘anemic sales and online hits,’ is not evidence of actual malice. Actual malice also is not established by allegations of ‘substandard journalism,’ such as an alleged failure to ‘contact the parents, or C.M.’ or to investigate or research,” Berry said.
Furthermore, Berry said the alleged implications that C.M. “supported or defended racism”, sexual abuse or a “crime” and is a “spokesperson for…racism” or sexual abuse were “wholly unreasonable.”
“Nothing in the article suggests C.M. supports or defends racism or sexual abuse – let alone any crime. Rather, the article quotes Prof. Gitlin’s criticism of the adults with whom C.M. and M.M. have appeared,” Berry said.
“Specifically, the article notes C.M.’s appearance on Alex Jones’s show (and the Anti-Defamation League’s critique of Jones’s language as anti-Semitic) and M.M.’s interview with candidate Roy Moore (who was accused of sexual abuse), and quotes Prof. Gitlin as saying that those “interviews ‘camouflage’ positions of the hard right ‘as feel-good sweetness and light, when, in fact, they are defending raw racism and sexual abuse.’ This statement says nothing about the children’s views of racism and sexual abuse. It is explicitly lodged at the adults with whom they appeared.”
Apart from their motion to dismiss the litigation, Berry and Newsweek offered no further comment.
For counts of false light and defamation, the plaintiffs are seeking compensatory and punitive damages substantially in excess of the arbitration limits, plus costs, pre- and post-judgment delay damages, interest and any further relief the Court deems just and appropriate, along with demands of the defendant for preservation of documents, communications and other relevant evidence, and a trial by jury.
The plaintiffs are represented by Dion G. Rassias of The Beasley Law Firm, in Philadelphia.
The defendant is represented by Berry and Matthew E. Kelley of Ballard Spahr, also in Philadelphia and Washington, D.C.
U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-01276
Philadelphia County Court of Common Pleas case 180202035
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com