Motion-Secondary: Deray Mckesson v. Jeanine Pirro, Fox News Network, Llc

On December 12, 2017 a Motion-Secondary was filed involving a dispute between Deray Mckesson, and Fox News Network, Llc, Jeanine Pirro, for Torts - Other (Defamation) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 04/20/2018 11:10 PM INDEX NO. 160992/2017
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 04/20/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

DERAY MCKESSON,

Plaintiff,

v. Index No. 160992-17
Motion 001
JEANINE PIRRO and FOX NEWS
NETWORK, LLC

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS'
MOTION TO DISMISS

THE BOUTIQUE FIRM PLC
Matthew D. Melewski
32 Fryer Lane

Altamont, NY 12009

(612) 999-8600
matthew@theboutiquefirm.com

Counsel for Plaintiff DeRay Mckesson

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TABLEOF CONTENTS
Page

INTRODUCTION...........................................................................................................................1
' ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

FACTUAL BACKGROUND .........................................................................................................1

LEGAL STANDARD .....................................................................................................................7

ARGUMENT ..................................................................................................................................8

I. MS. PIRRO'S STATEMENTS WERE REASONABLY SUSCEPTIBLE OF A
DEFAMATORY CONNOTATION...................................................................................9
...................................................................................

A. Pirro's Statements Conveyed Defamatory Facts About Mr. Mckesson .......................10

1. Ms. Pirro Used Precise Language Capable of Being Proven True or False ...........11

2. Ms. Pirro Signaled That Her Statements Were Not Opinions By Describing
the Statements as "The Facts."..............................................................................14

3. Pirro Implied the Existence of Undisclosed Facts ..................................................15

B. Numerous Reasonable Viewers Believed the Statements Conveyed Defamatory
Facts About the Plaintiff...............................................................................................15

II. MR. MCKESSON HAS ADEQUATELY ALLEGED THAT PIRRO'S
STATEMENTS WERE MADE WITH ACTUAL MALICE...........................................16
...........................................16

A. Defendants Have Not Demonstrated that Mr. Mckesson is a Limited Purpose
Public Figure.................................................................................................................16
.................................................................................................................16

B. Even If He Is a Public Figure, Pirro's Statements Were Clearly Made with
Reckless Disregard of Whether They Were False or Not.............................................17

"Report"
1. Ms. Pirro Was Appearing on Fox & Friends to Ostensibly A
Federal Court Decision That Refuted Her Claims..................................................17
..................................................17

2. Ms. Pirro Omitted That Judge Brian Jackson Had Found No Basis for
Allegations of Violence Against Mckesson............................................................18

III. NEW YORK CIVIL RIGHTS LAW § 74 PROVIDES NO PROTECTION AS A
MATTER OF LAW ..........................................................................................................19

A. Ms. Pirro's Statements Were Not Substantially Accurate Reports...............................19

B. Pirro's Statements Suggested More Serious Conduct Than That Actually
Suggested in the Judicial Proceeding............................................................................21

.
1

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C. Ms. Pirro's Statements Produced a Different Effect on the Mind of the Viewer
the Actual ..........................................................................................22
Proceeding..........................................................................................22

D. Section 74 of the New York Civil Rights Law Does Not Apply to Slander.................23

CONCLUSION.......................................................................................................................24
D~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

..
11

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TABLE OF AUTHORITIES

Page(s)

CASES

Armstrong v. Simon die Shuster, 85 N.Y.2d 373, 379 (N.Y. 9
1995)..............................................7,
..............................................7,

Celle v. Filipino Reporter Enterprises Inc.,,20.9
209 F.3d 163, 183 (2d Cir. 2000)............................17
............................17

Corp. Training Unlimited, Inc. v. Nat'l Broad. Co., 868 F. Supp. 501, 507 (E.D.N.Y. 1994) .......9

Daniel Goldreyer, Ltd. v. Van de Wetering, 630 N.Y.S.2d 18, 23 (1st Dep't 1995) ....................21

Davis v. Boeheim, 24 N.Y.3d 262, 268 (N.Y. 10
2014).............................................................7,
9,
.............................................................7,

Davis v. Ross, 754 F.2d 80, 83 (2d Cir. 1985) ................................................................................9

DeRay Mckesson et al.v. City of Baton Rouge et al., No. 3:16-cv-520-JWD-EWD......................2

Dibble v. WROC TV Channel 8, 530 N.Y.S.2d 388, 389 (4th Dep't 22
1988)............................19,
............................19,

Dimond v. Time Warner, Inc.,,989
989 N.Y.S.2d 727, 728 (4th Dep't 2014)......................................24
......................................24

Y'
Farrell v. N.Y. Evening Post,
.Post, 3 N.Y.S.2d 1018, 1022 (Sup. Ct., N.Y. Cnty. 1938) .....................24

Fontanetta v. Doe, 898 N.Y.S.2d 569, 573 (2d Dep't 2010) ..........................................................8
8

Greenberg v. Spitzer, 62 N.Y.S.3d 372, 385 (2d Dep't 2017)........................................................7
........................................................7

Gross v. New York Times Co., 82 N.Y.2d 146, 152 (N.Y. 1993)..................................9,
10, 13, 15

GS Plasticos Limitada v. Bureau Veritas, 922 N.Y.S.2d 365, 367 (2011) ...................................19

Guerrero v. Carva, 779 N.Y.S.2d 12, 18 (1st Dep't 2004)...........................................................15
...........................................................15

Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9 (1979)...............................................................17
...............................................................17

Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 119 (2d Cir. 2005) 21
.........................................19,

Krauss v. Globe Int'l,Inc., 674 N.Y.S.2d 662, 664 (1st Dep't 1998) ...........................................16
16

Lasky v. American Broadcasting Companies, Inc., 631
,631 F.Supp. 962,
.962, 970 (S.D.N.Y.1986)...........9
...........9

Lee v. Brooklyn Union Publ'g Co., 209 N.Y. 245, 248 (1913) .....................................................24

Leon v. 84 N.Y.2d â€”
87-88 (N.Y. 8
Martinez, 83, ..................................................................7,
1994)..................................................................7,

Long v. Marubeni Am. Corp., 406 F.Supp.2d 285, 296-97 (S.D.N.Y. 2005) ...............................15

...
111

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NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982).....................................................3

New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)..........................................................16

November v. Time, Inc., 244 N.Y.S.2d 309, 311-312 (N.Y. 1963).................................................9
.................................................9

Obi v. Amoa, 63 N.Y.S.3d 208, 228 (N.Y. Sup. Ct. 2017)............................................................17

Ocean State Seafood, Inc. v. Capital Newspaper, Div. of Hearst Corp.,
492 N.Y.S.2d 175, 179 (3d Dep't 22
.............................................................................21,
1985).............................................................................21,

Officer John Doe Police Officer v. DeRay Mckesson et al.,
No. 3:16-cV-742 (M.D. ........................................................................................................2
La.)........................................................................................................2

Pisani v. Staten Island Univ. 440 F. Supp. 2d â€”
176-77 (E.D.N.Y. 21
Hosp., 168, 2006).............15,

Rebozo v. Washington Post Co., 637 F.2d 375, 382 (5th Cir. 1981).............................................18

Russo v. 446 N.Y.S.2d â€”
646-47 (4th Dep't 22
Padovano, 645, ....................................10,
1981)....................................10,
21,

Silsdorf v. Levine, 59 N.Y. 2d 8, 12 (N.Y. 9
........................................................................7,
1983)........................................................................7,

Smith v. Montefiore Med. Ctr., 984 N.Y.S.2d 50, 51 (1st Dep't 2014).........................................17

Stanwick v. Meloni, 551 N.Y.S.2d 106, 107 (4th Dep't 1990)......................................................17

Thomas H. v. Paul B., 18 N.Y.3d 580, 584 (N.Y. 12
2012).....................................................9,
10,

Vengroff v. Coyle, 647 .N.Y.S.2d
N.Y.S.2d 530 (2d Dep't 1996)................................................................19
................................................................19

Zervos v. Trump, No. 150522-17, 2018 WL 1404883, at *6
(N.Y. Sup. Ct. Mar. 20, 2018).....................................................................................................9
.....................................................................................................9

STATUTES

N.Y.
~ ~ C.P.L.R.
~ ~ ~ ~ 3026 .........................................................................................................................7

N.Y.
.Y. C.P.L.R. 3211(a)(1)................................................................................................................8
................................................................................................................8

N.Y.
.Y. C.P.L.R. 3211(a)(7)................................................................................................................7
................................................................................................................7

~ ~
N.Y.
.Y. Civil Rights Law § 24
74.........................................................................................19,
21, 23,

.
1V

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INTRODUCTION

On September 29, 2017, Defendant Pirro told approximately 1.7 million people that

Plaintiff Mckesson directed someone to hit a police officer in the face with a rock. Twice. She

facts,"
said these and other falsehoods were "the despite knowing that a federal judge had found

no basis for her claims. Ms. Pirro's statements were - to put it - susceptible
mildly reasonably

Defendants'
of a defamatory connotation, which is allMr. Mckesson needs to show to prevail on

motion to dismiss.

Defendants'
arguments are unavailing and must fail as a matter of law. On the one hand,

facts"
they assert that any reasonable viewer would conclude that "the Pirro recited were actually

opinions."
her "pure On the other hand, Defendants incongruously assert that any reasonable

facts" true"
viewer would conclude that "the were actually a "fair and report of a judicial

proceeding. Finally, Defendants assert that there is no reason to think Ms. Pirro knew the claims

"reporting"
were false, despite arguing that Ms. Pirro was a judicial decision that refuted those

very claims. In effect, Defendants argue that false and defamatory statements are permissible so

long as they are contradicted by a contemporaneous federal judicial decision.

The question for the Court is simply whether a reasonable juror could conclude that the

statements were defamatory. Because a reasonable juror could so conclude, the Court must deny

the Motion to Dismiss.

FACTUALBACKGROUND

After Alton Sterling was shot and killed by Baton Rouge Police Officers on July 5, 2016

- the act captured on video a bystander - the U.S. Department of Justice
harrowing by

immediately opened a civil rights investigation. See Alton Sterling Shooting in Baton Rouge

Prompts Justice Dept. Investigation, N.Y. Times (July 6, 2016), https://goo.gl/9a3xUP (a copy of

the article is attached as Exhibit A to the Affirmation of Matthew D. Melewski in Support of

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Ex.").1
Motion to Dismiss) (hereinafter "Melewski Aff. Ex."). At the same time, hundreds of people

began protesting what they perceived as the Baton Rouge Police Department's unnecessary and

inappropriate use of force. See Complaint, Mckesson v. Pirro, et al., Index No. 160992-17 ¶ 16

(N.Y. Sup. Ct. Aug. 20, 2015) (Doc. 1). Mr. Mckesson was among them. Id.

On July 9, 2016, Mr. Mckesson was arrested while peaceably protesting and was briefly

incarcerated. Compl. ¶ 17. The East Baton Rouge District Attorney subsequently dismissed all

charges against him. Id. At some point during the otherwise peaceable protests, a police officer

was hit in the face with a rock, causing significant injuries. Id. ¶ 19. Two lawsuits followed.

First, along with approximately 185 other persons arrested during the protest, Mr.

Mckesson sued the Baton Rouge Police Department and responsible government officials for

their wrongful arrest. See Mckesson et al. v. Baton Rouge et No. 3:16-cv-520-
DeRay City of al.,

JWD-EWD; Exhibit C to Affirmation of Dori Hanswirth ("Hanswirth Aff. Ex.") (Doc. 9). In

August 2017, the Police Department and other Defendants agreed to settle the case, expunge the

charges, and pay $500 to $1,000 to each class member who was in custody. See Memorandum

in Support or Motion for Final Approval of Class Action Settlement, DeRay Mckesson et al. v.

City of Baton Rouge et al., No. 3:16-cv-520 (M.D. La. August 22, 2017), at 9-10; Hanswirth Aff

Ex. D (Doc. 10). The parties estimated that total payments to the class members, including the

$46,600."
return of cash bonds and reimbursement of bonds fees "will be about Id. at 10.

Second, the injured police officer anonymously sued Mr. Mckesson and the social

Matter"
movement "Black Lives for negligence. See Officer John Doe Police Officer v. DeRay

Mckesson et al., No. 3:16-cv-742 (M.D. La.); Hanswirth Aff Ex. F (Doc. 12). The officer later

"#blacklivesmatter"
attempted to add the hashtag and Black Lives Matter, Inc. as named

1 publications."
"The Court may take judicial notice of newspaper Grebow v. City of
New York, 661 N.Y.S.2d 441, 479 (Sup. Ct., N.Y. Cty 1997) (citing N.Y. C.P.L.R. 4511(d)).

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Defendants. See Amended Complaint for Damages for Officer Hit in the Face with Rock,

Officer John Doe Police Officer v. DeRay Mckesson et al., No. 3:16-cv-742 (M.D. La. June 18,

2017); Hanswirth Aff Ex. G (Doc. 13). Mr. Mckesson moved to dismiss the complaint on

Matter"
multiple grounds, including that "Black Lives is not a juridical entity capable of being

sued. See Memorandum In Support Of Defendant DeRay Mckesson's Motion To Dismiss,

Officer John Doe Police Officer v. DeRay Mckesson et al., No. 3:16-cv-742 (M.D. La. Jan. 25,

2017) (Melewski Aff. Ex. B); Defendant DeRay Mckesson's Motion To Dismiss Pursuant To

Federal Rule of Civil Procedure 9(a), Officer John Doe Police Officer v. DeRay Mckesson et al.,

No. 3:16-cv-742 (M.D. La. April 7, 2017) (Melewski Aff. Ex. C).

On September 28, 2017, U.S. District Court Judge Brian Jackson dismissed the suit

Matter."
against Mr. Mckesson and "Black Lives See Ruling and Order, Officer John Doe

Police Officer v. DeRay Mckesson et al., No. 3:16-cv-742 (M.D. La. Sept. 28, 2017); Hanswirth

Aff. Ex. H (Doc. 19). The Court's discussion began: "The Court finds that Plaintiffs

Complaint suffers from numerous deficiencies; namely, the Complaint fails to state a plausible

claim for relief against Mckesson and itnames as a Defendant a social movement that lacks the

sued."
capacity to be Id. at 5. The Court later explained the complaint's inadequate negligence

claim against Mr. Mckesson:

"In order to state a claim against Mckesson to hold him liable for the tortious act
of another with whom he was associating during the demonstration, Plaintiff

would have to allege facts that tend to demonstrate that Mckesson 'authorized,
activity.'"
directed or ratified specific tortious

Id. at 8 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982)). The Court

concluded that the Plaintiff had not pled such facts and thus had failed to state a cause of action

against Mr. Mckesson. Id. at 8-9.

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Numerous news outlets covered the judges decision. National Public Radio wrote that

"As for Mckesson, Jackson writes that he was exercising his constitutional right to association

violence."
and protected speech in the protest and there is no evidence that he incited See

Melewski Aff. Ex. D. CNN summarized the case as follows:

"The injured officer said Mckesson and Black Lives Matter were liable for his
injuries because they were negligent and should have known the protests would
turn to riots and become violent. Mckesson was exercising his constitutional right
to demonstrate, the judge ruled, and he cannot be held liable for the conduct of
protesters."
other

hadn'
See Melewski Aff. Ex. E. The Washington Post wrote "The judge added that the officer hadn't

speech.'
cited any evidence showing that Mckesson 'exceeded the bounds of protected Beyond

others' wrote."
that, Mckesson couldn't be held liable for actions, he See Melewski Aff. Ex. F.

Friends"
The following day, September 29, 2017, the Fox News talk show "Fox &

brought Defendant Pirro on to address the dismissal of the suit. One of the hosts of "Fox &

Friends,"
Steve Doocy, introduced Defendant Pirro and the topic:

STEVE DOOCY: Joining us right now, host of Justice, Judge Jeanine Pirro.
Judge lets talk a littlebit about how a police officer anonymously sued Black
Lives Matter because he was at a demonstration where he was injured by
somebody threw a rock or a bottle or something like that, and now a judge has
come out and made itvery clear you can't sue Black Lives Matter. Why?

JEANINE PIRRO: Right. The Judge says you can't sue Black Lives Matter
because it's an organization like the Civil Rights Movement; like the Tea Party, it
doesn't have a itdoesn't have bylaws - -
governing body,

STEVE DOOCY: Too general?

JEANINE PIRRO: - - itdoesn't have - - it's too it'stoo amorphous.
yeah, much,
And yet the Plaintiff in this case said look, these people have meetings, they, it's
an unincorporated association; they have national chapters, they solicit money.

Hanswirth Aff. Ex. J at 2:7-25.

At this point, Defendant Pirro changed the tone of her voice, changed the topic from the

discussion of capacity to be sued, and began repeatedly slandering Mr. Mckesson,

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mischaracterizing the lawsuits at issue, and impugning the integrity of federal judge Brian

Jackson:

JEANINE PIRRO: And in this particular case, DeRay Mckesson, the organizer,
was was the - -
actually directing people, directing violence, directing

STEVE DOOCY: So can you sue him?

JEANINE PIRRO: Yeah, you can sue him. But guess what, the judge said, you
know what, he was engaging in protected free speech. Now I want you to guess
who appointed this federal judge.

BRIAN KILMAEDE: Ronald Reagan?

JEANINE PIRRO: No

BRIAN KILMAEDE: Didn't think so

JEANINE PIRRO: Barack Obama. And you know what the amazing part of this
is that Mckesson and several - - I think itsabout 90 of the people who
DeRay
were - -
protesting

Hanswirth Aff. Ex. J at 2:25-3:15; Hanswirth Aff. Ex. K. at 1:01. As Pirro was speaking,

Defendant Fox News Network displayed a picture of federal judge Brian Jackson. Hanswirth

Aff. Ex. K. at 1:34.

JEANINE PIRRO: There is the federal judge right there - - got a hundred
actually
thousand dollars from the City of Baton Rouge because Baton Rouge they said
was offensive to them and - - the police were militarized and although
very they
no one was injured,

STEVE DOOCY: Uh â€”
huh
-huh

JEANINE PIRRO: they feltthat their civil rights were violated.

What is wrong with this country today?

The problem is when you have federal judges who make decisions - -

Activist?2
STEVE DOOCY: Activist?

2 "Activists,"
The transcript attached as Hanswirth Aff. Ex. J reads but the word appears
"Activist,"
to be singular.

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- - - - facts.3
JEANINE PIRRO: based on politics activist judges and not on the facts.
You'
You've got a police officer who was injured, he was injured at the direction of

DeRay Mckesson, DeRay Mckesson walks away with a hundred thousand dollars,
for an organization that is amorphous, we got a problem in this country.

Hanswirth Aff. Ex. J at 3:15-4:7.

Pirro's statements about Mr. Mckesson were the subject of numerous articles in a variety

of publications, many of which understood Ms. Pirro's statements as defamatory. The

Friends,'
WashingtonPost published an articletitled "On 'Fox & Jeanine Pirro slanders Black

Mckesson."
Lives Matter's DeRay See Melewski Aff. Ex. G. Rawstory, an online news

organization, introduced an article on the matter: "Judge Jeanine Pirro, took to Fox & Friends on

violence'
Friday to defame anti-racist activist DeRay McKesson for 'directing at protests in the

year."
wake of the police-involved death of Alton Sterling last See Melewski Aff. Ex. H.

Another online news source,VerifiedPolitics, ran an article with the headline: "Judge Jeanine

Lie."
Just Got Caught In A Racist See Melewski Aff. Ex. I. CounterCurrentNews started their

story: "Judge Jeanine Pirro went on Fox & Friends Friday to defame anti-racist activist DeRay

violence'
McKesson for 'directing at protests in the wake of the police-involved death of Alton

year."
Sterling last See Melewski Aff. Ex. J. The news websiteUpprox wrote that Pirro "falsely

protest."
claimed on air that Mckesson was directing the violence at the See Melewski Aff. Ex.

In response to inquiries, Defendants Pirro and Fox News released the following statement

to multiple news outlets: "Based on 32 years in law enforcement, you can only be found not

guilty after a trial.McKesson was not tried. I was quoting paragraph 17 and 19 from court

documents."
See,e.g., Melewski Aff. Ex. G.

3 fact,"
The transcript attached as Hanswirth Aff. Ex. J reads "the but the phrase appears
facts,"
to be "the plural. Defendants refuse to repeat this section of Ms. Pirro's statement

anywhere in their pleading. See Def. Mem.passim.

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On October 27, 2017, counsel for Mr. Mckesson sent a letter to Defendants Pirro and Fox

News, demanding the Pirro formally retract her statements about Mr. Mckesson and cease

making defamatory statements about Mr. Mckesson. See Melewski Aff. Ex. L. The letter

explained that if a retraction was not forthcoming, Mr. Mckesson would bring a lawsuit seeking

monetary damages. Id. The same day, the class action settlement between the protestors and the

Baton Rouge defendants was approved by the Court. See Hanswirth Aff Ex. E (Doc. 11).

On November 10, 2017, counsel for Fox News responded to the from Mr. Mckesson's

counsel, refusing to issue a retraction on the grounds that Ms. Pirro was both reporting the case

and offering her opinion. See Melewski Aff. Ex. M. Mr. Mckesson brought suit against

2017.4
Defendants Pirro and Fox News on December 12, 2017.

LEGAL STANDARD

On a motion to dismiss pursuant to N.Y. C.P.L.R. 3211(a)(7), the Court must accept the

facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable

inference, and limit the inquiry to the legal sufficiency of plaintiff s claim. Davis v. Boeheim, 24

N.Y.3d 262, 268 (N.Y. 2014); Silsdorf v. Levine, 59 N.Y. 2d 8, 12 (N.Y.

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December 12, 2017

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Motion-Secondary: Deray Mckesson v. Jeanine Pirro, Fox News Network, Llc

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