In a precedential decision issued on April 14, the U.S. Court of Appeals for the Third Circuit affirmed dismissal of defamation and false light invasion of privacy claims brought against Newsweek by a politically active minor who was the subject of an article in the magazine. The Third Circuit’s opinion reaffirms that “pure opinions” that are “based on disclosed facts are absolutely privileged, no matter how derogatory they are.” McCafferty v. Newsweek Media Grp., No. 19-1545, slip op. at 8 (3d Cir. Apr. 14, 2020) (quotation marks omitted).
C.M., “a politically vocal boy,” id. at 3, was 12 years old when he stepped into the public eye during the 2016 presidential campaign by publishing video clips to Facebook endorsing Donald Trump. After he amassed hundreds of thousands of views and garnered attention from other news outlets, Newsweek wrote about C.M. and other politically active minors in an early 2018 article titled “Trump’s Mini-Mes.” Id. at 4. A photo of C.M. holding a Trump campaign sign ran at the top of the article, and he was mentioned only in the first two paragraphs. Also discussed in the article was M.M., another 12-year-old who had conducted an interview with Alabama Senate candidate Roy Moore, who had been at that time accused of sexual assault.
The article included a quote from Todd Gitlin, a Columbia University journalism and sociology professor who criticized C.M. and others children’s participation in politics. “These kids are being weaponized,” Gitlin said, and were being used to “‘camouflage’ positions of the hard right ‘as feel-good sweetness and light, when, in fact, they are defending raw racism and sexual abuse.’” Id. at 5. Gitlin also criticized conspiracy theorist Alex Jones for using an “anti-Semitic dog whistle” when Jones referred to C.M. “as part of a new wave of resistance to the ‘globalists.’”
C.M. sued for defamation and false light invasion of privacy based on the article’s characterization of how C.M. was being “weaponized” by the “hard right” to promote racism and sexual abuse. Id. at 9. Affirming the district court’s dismissal, the Third Circuit reiterated that “pure opinions cannot be defamatory” under Pennsylvania law, and that opinions based on publicly disclosed facts are “absolutely privileged” under the First Amendment. Id. at 8. “When an article discloses the underlying facts, readers can easily judge the facts for themselves,” the court wrote. Id. Gitlin and the article did not accuse C.M. of defending “raw racism and sexual abuse,” but rather accused others of using C.M. to defend such things. Id. at 9. Moreover, the court explained, even if Gitlin and the article did suggest that C.M. was defending racism or sexual abuse, these “derogatory characterizations without more are not defamatory.” Id. at 10.
The Third Circuit also held that, even if the statements in the article were defamatory, C.M. failed to plead actual malice. C.M. was a limited-purpose public figure who voluntarily entered the public arena to support Trump’s candidacy and presidency. C.M.’s allegation that Newsweek departed from journalistic standards by not seeking his or his parents’ comment was not sufficient to allege actual malice. For that reason, the false light claim also failed.
The Third Circuit’s opinion reaffirms longstanding defamation and First Amendment principles in a particularly clear and well-written opinion. Pepper Hamilton’s First Amendment and Newsroom Practice will continue to monitor developments in this important area.
