.jpg)
PHILADELPHIA – Citing First Amendment grounds, a federal appellate court has ruled that Newsweek did not defame a then-12 year-old supporter of President Donald Trump featured in one of its magazine articles in 2018 and that the previous dismissal of such counts against the publication was correct.
On Tuesday, U.S. Court of Appeals for the Third Circuit Judge Stephanos M. Bibas authored an opinion on behalf of the court which upheld the dismissal of the case filed by Brian and Melissa McCafferty on behalf of their son, listed in the litigation as “C.M.”
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, 2018, versus Newsweek Media Group, Ltd., of New York, N.Y.
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.
The McCaffertys alleged their son C.M. was unfairly characterized in an article titled “Trump’s Mini-Mes,” published in a January 2018 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.
“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. 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.
On March 3, 2019, U.S. District Court Judge Juan R. Sanchez dismissed an amended complaint from the McCaffertys, ruling their claims for defamation and false light associated with a published article about their son did not meet the legal standards for their assertion.
“The McCaffertys’ defamation and false light claims on behalf of C.M. will be dismissed because the challenged statements in the article are incapable of defamatory meaning or placing C.M. in a false light,” Sanchez said.
“The McCaffertys’ own defamation and false light claims will also be dismissed because the article fails to mention them and cannot reasonably be understood to be about them. Accordingly, Newsweek’s motion to dismiss will be granted.”
Five days later, the McCaffertys announced intentions to appeal the decision to the Third Circuit.
President Trump’s sister, former federal appellate judge Maryanne Trump Barry, once sat on the Third Circuit bench, but took inactive senior status shortly after the president’s inauguration in 2017. In February 2019, she retired amid a reported probe into Trump family finances.
On appeal, Bibas explained that just as the First Amendment protected C.M.’s right to his political views, it also protected Newsweek’s right to publish the article that it did.
“Political discourse can be bruising. People often express opinions that offend others. But the First Amendment protects virtually all of those opinions, even offensive and hurtful ones, to promote a greater good: robust political discourse. The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric,” Bibas said.
“C.M. is a politically vocal boy. He claims that a Newsweek article tarred him, at age 12, by accusing him of ‘defending raw racism and sexual abuse.’ But the article contained derogatory opinions based only on disclosed facts, which are not enough to show defamation or false light. Even if they could, C.M. does not plead facts showing actual malice, which the First Amendment requires of those who step into the political spotlight. So the District Court dismissed his claims, finding that no reasonable reader would think the article defamed him. We agree and will affirm.”
Bibas added Gitlin’s characterizations from the Newsweek article made no factual claims specifically about C.M. and standing merely on their own, derogatory characterizations are not grounds for defamation.
“The article does not say that C.M. is a racist or sexual abuser. Nor does it accuse C.M. of having made any specific statements defending ‘raw racism and sexual abuse.’ Instead, it quotes Gitlin’s opinion about how the ‘hard right’ is using C.M.’s and M.M.’s opinions. His opinions may seem harsh, but that does not strip them of their absolute privilege,” Bibas said.
“Professor Gitlin alleged no specific, unlawful wrongdoing. While saying that someone committed a crime may be defamatory, publicly defending those accused of racism or sexual abuse is not unlawful. We see no evidence that Pennsylvania would let defenders of those accused of bigotry or crime bring defamation actions whenever a publication mentions their defense.”
Based on this rationale, Bibas ruled to dismiss the lawsuit on appeal.
“In the rough-and-tumble of politics, C.M. must endure offensive opinions and heated rhetoric. The First Amendment protects even the most derogatory opinions, because suppressing them would chill robust political discourse. As long as an opinion relies on disclosed facts, it is privileged. That is what happened here. And C.M. did not plead that Newsweek knew the facts were false or recklessly disregarded the truth. We will thus affirm,” Bibas concluded.
The plaintiffs were represented by Dion G. Rassias of The Beasley Law Firm, in Philadelphia.
The defendant was represented by Jeremy D. Mishkin of Montgomery McCracken Walker & Rhoads, also in Philadelphia.
U.S. Court of Appeals for the Third Circuit case 19-1545
U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-01276
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com