Judge greenlights libel suit against NPR over Seth Rich reports
A federal judge has rejected National Public Radio’s bid to dismiss a Texas investment adviser’s libel suit over news reports about conspiracy theories surrounding the death of a Democratic National Committee staffer during the 2016 campaign.
Judge Amos Mazzant of U.S. District Court for the Eastern District of Texas ruled Wednesday that the $57 million suit brought by Ed Butowsky makes plausible claims that the network may be liable for defamation for a series of online stories about Butowsky’s role in publicizing assertions that the murdered DNC staffer, Seth Rich, may have been involved in leaking Democratic emails.
NPR’s attorneys argued that the reports by NPR media correspondent David Folkenflik accurately described a separate, prior lawsuit filed by Rod Wheeler, a private investigator and former Washington, D.C., homicide detective whom Butowsky hired to explore the Rich case and who wound up suing Fox News and Butowsky for defamation after accusing Fox of fabricating quotations in a story about Rich’s murder.
Fox eventually retracted the online story it published, although Fox News prime-time host Sean Hannity publicly declared that he was not retracting his statements about Rich’s murder, including unproven claims that Rich might have been killed because of some role in leaking Democratic National Committee emails that U.S. officials say Russia hacked into and handed off to WikiLeaks.
Rich's parents also sued Fox News and Butowsky for defamation over their roles in the Fox reports. A federal judge in New York dismissed that case, but the ruling is on appeal.
In his 37-page ruling Wednesday, Mazzant said Butowsky’s suit against NPR, Folkenflik and top NPR editors met the legal standard to proceed.
“Plaintiff has alleged sufficient facts which plausibly show the Reports were not fair, true, and impartial accounts of the Wheeler complaint,” Mazzant wrote. “Additionally, even if the statements are considered a true report of the Wheeler complaint, as Defendants argue, the organization of the comments combined with the speculative commentary imply wrongdoing.”
Most worrisome for NPR may be the judge’s conclusion that Butowsky did not appear to qualify as a public figure as a result of his financial support for Wheeler’s probe and various actions taken to publicize it. If the judge persists in that view, the network could lose the protections that normally shield news outlets from liability when reporting on matters of public concern.
“At this stage of the proceedings, the facts do not show Plaintiff had anything more than a tangential role in the controversy surrounding the Seth Rich investigation,” the judge wrote.
The ruling means the lawsuit will proceed to the discovery process, including demands for documents and depositions from the journalists involved, Butowsky and others. Both sides in the case filed a motion Wednesday to facilitate that fact-gathering.
NPR spokeswoman Isabel Lara downplayed the significance of the judge’s decision and said the network remained confident in the stories.
“This is an early ruling,” Lara said in a statement. “NPR stands behind its reporting and will continue to defend the lawsuit vigorously. NPR is a public service news organization. We are a trusted source of information for millions of Americans and we take this responsibility very seriously, as we did in this coverage.”
An attorney for Butowsky, Ty Clevenger, said he hoped the decision would prompt NPR to resolve the case.
“If NPR and Folkenflik are smart, they will try to settle quickly,” the attorney said.
NPR argued that many of the claims in its reports, like assertions that Fox’s reporting on the Rich murder was “baseless” and “fake news,” amounted to opinion and not the kind of factual claims that can be the basis for a libel suit.
But Mazzant disagreed.
“The statements made by Folkenflik were made as verifiable statements of fact,” the judge wrote. “The statements at issue were not merely expressing a subjective view. Looking at the context of the verifiable facts, nothing shows the statements expressed Folkenflik’s opinion or merely offer Folkenflik’s personal perspective on disputed facts.”
Clevenger said he thinks the ruling “bodes well” for several other libel suits Butowsky is pursuing, including against CNN, Vox and The New York Times, as well as Wheeler and his attorneys.
The cases are all pending before Mazzant, who is an appointee of President Barack Obama. The judge was nominated in 2014 as part of a compromise with Texas’ Republican senators. Mazzant has repeatedly been sought out by conservative litigants seeking to challenge Obama policies.
