From the Florida Court of Appeal’s decision yesterday in CNN, Inc. v. Young, written by Judge Clayton Roberts and joined by Judges Thomas Winokur and Robert Long:
Young is a U.S. Navy Veteran and former U.S. government operative who operates a private security consulting practice through his company, Nemex Enterprises, Inc. (collectively, “Young”). Part of Young’s work involved evacuating Afghan citizens during the United States withdrawal from Afghanistan.
On November 11, 2021, CNN’s “The Lead with Jake Tapper” aired a video segment by reporter Alex Marquardt about Afghans attempting to flee the Taliban via private evacuation operators like Young. Over the next few days, Marquardt’s reporting was republished on another CNN program, disseminated on Facebook and Twitter, and repackaged into a digital article on CNN’s website….
Young sued for libel and related torts, and sought punitive damages; the appellate court held that he had offered sufficient evidence to support that request:
Section 768.72, Florida Statutes, and Florida Rule of Civil Procedure 1.190 require court approval before a claimant may plead entitlement to punitive damages. Before granting leave to amend, the trial court must determine the claimant has made “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” The trial court acts as a “gatekeeper,” both to ensure the claimant has shown a reasonable evidentiary basis to recover punitive damages and to protect the other party from unfounded punitive damage claims…. Young had to proffer evidence providing a reasonable basis that CNN published with actual malice, that is with knowledge of the falsity of its reporting or with reckless disregard for its probable falsity.
The totality of Young’s proffered evidence met this burden. CNN chose to use language like “black market,” “exploit,” “exorbitant,” and “desperate Afghans” on television and online. When introducing Alex Marquardt’s segment, Jake Tapper stated:
In our world today, the U.S. government, the Biden administration says that as of last week it had assisted in the departure of at least 377 U.S. citizens and 279 lawful permanent residents of the U.S. from Afghanistan since August 31st. Still, many Afghans, Afghans who desperately want to flee Taliban rule and Afghans who say their lives are at stake, they remain behind. As CNN’s Alex Marquardt has discovered, Afghans trying to get out of the country, face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.
Marquardt’s segment continued in the same tone and tenor, with visual emphasis from a conspicuous chyron that read: “CNN Investigation: Afghans trying to flee Taliban face black markets, exorbitant fees, no guarantee of safety or success” (“the Black Market Chyron”). The overall gist of CNN’s reporting was that of an investigative report to uncover bad actors preying upon desperate people at a chaotic time. While language like “exorbitant” could, perhaps, be a matter of opinion, we agree with Young that there is no doubt the term “black market” implies illegality.
Young proffered CNN messages and emails that showed internal concern about the completeness and veracity of the reporting—the story is “a mess,” “incomplete,” not “fleshed out for digital,” “the story is 80% emotion, 20% obscured fact,” and “full of holes like Swiss cheese.” Yet, the Triad {three independent CNN departments (legal, standards & practice, and editorial) that provide pre-publication review of certain reporting} approved publication. Young also proffered a message exchange he had with Marquardt just hours before publication where he advised there were factual inaccuracies in the reporting. CNN published anyway.
After setting the scene of “a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success,” CNN chose to display only Young’s name and picture onscreen above the Black Market Chyron. Young was the only operator profiled on television and online.
Young proffered internal communication showing, at minimum, CNN employees had little regard for him. In those messages, CNN employees called him a “shitbag” and “a-hole” and remarked they were “going to nail this Zachary Young mfucker.” Marquardt referred to him as “fucking Young” and quipped, “it’s your funeral bucko.”
On appeal, CNN argues it did not intend to harm; its language was either opinion or ambiguous; and the internal communications were journalistic bravado that reflected a sincere belief in the reporting. These arguments are for the fact finder in determining entitlement. The issue on appeal involves proper pleading, not ultimate proof.
We must consider whether Young made a reasonable evidentiary proffer to provide a reasonable basis for recovery of punitive damages at this stage. After reviewing the totality of the proffered evidence in the light most favorable to Young, we conclude that he did. Young sufficiently proffered evidence of actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages. Whether Young can ultimately prevail is not the issue before us. The trial court properly exercised its gatekeeping role and granted Young’s motion to amend….
Devin Freedman of Freedman Normand Friedland LLP represents Young. Thanks to Griffin Klema (Klema Law) for the pointer
