Yesterday’s decision from the Florida Court of Appeals CNN, Inc. v. Youngwritten by Justice Clayton Roberts, joined by Justices Thomas Winokur and Robert Long:
Young is a U.S. Navy veteran and former U.S. government agent who operates a private security consulting business through his company, Nemex Enterprises, Inc. (collectively, “Young”). Part of Young’s job involves evacuating Afghan citizens during the U.S. withdrawal from Afghanistan.
On November 11, 2021, CNN’s “The Lead with Jake Tapper” aired a video clip shot by reporter Alex Marquardt, which involved Afghans trying to escape the Taliban through private evacuation operators such as Young. Over the next few days, Marquardt’s report was republished on another CNN program, circulated on Facebook and Twitter, and repackaged into a digital article on CNN’s website…
Young sued for defamation and related torts and sought punitive damages; the appeals court found that he had provided sufficient evidence to support the request:
Florida Statutes 768.72 and Florida Rules of Civil Procedure 1.190 require a claimant to obtain court approval before asserting the right to punitive damages. Before granting a modification, the trial court must determine that the plaintiff has “reasonably demonstrated, by evidence in the record or by evidence presented by the plaintiff, that would provide a reasonable basis for the recovery of such damages.” The trial court acts as a “gatekeeper” both to ensure that the claimant provides a reasonable evidentiary basis to recover punitive damages and to protect the other party from baseless punitive damages claims…. Yang must provide evidence and provide a reasonable basis to prove that CNN’s report was with actual malice, that is, it knew that its report was false, or was reckless that its report might be false.
The entirety of the evidence presented by Young satisfied this requirement. CNN has chosen to use language such as “black market,” “exploitation,” “excessive” and “desperate Afghans” on television and online. Introducing Alex Marquardt’s segment, Jake Tapper said:
In today’s world, the U.S. government, the Biden administration, says that since August 31, as of last week, it has assisted at least 377 U.S. citizens and 279 U.S. legal permanent residents to leave Afghanistan. Still, many Afghans, both those desperate to escape Taliban rule and those who say their lives are under threat, remain behind. As CNN’s Alex Marquardt found, Afghans trying to leave the country face a black market filled with promises, hefty fee demands and no security or a guarantee of success.
Marquardt’s clip continues in the same tone and tone, visually emphasized by a prominent chyron that reads: “CNN Investigation: Afghans trying to escape Taliban face black market, high fees, no guarantee of safety or success ” (“Black Market Chyron”)). The overall thrust of CNN’s coverage was an investigative report aimed at exposing the bad actors who prey on desperate people during chaotic times. While wording like “excessive” may be a matter of perspective, we agree with Young that the term “black market” unquestionably implies illegal.
Information and emails Yang provided to CNN revealed internal concerns about the integrity and veracity of the reporting – that the story was “a mess,” “incomplete,” rather than “digitally fleshed out,” and that “this story is 80 percent emotional.” , 20% are vague “facts” and “full of holes like Swiss cheese,” however, the Triad {three separate CNN divisions (Legal, Standards & Practices, and Editorial) provide pre-publication review of some stories}. Approved for publication. Yang also provided an exchange of information he had with Marquardt in the hours before publication, saying there were factual inaccuracies in the report that CNN published anyway.
After setting the scene of “a black market filled with promises, exorbitant fees, and no guarantee of safety or success,” CNN chose to display only Yang’s name and photo on the screen above the black market, Chyron. Yang is the only operator to appear on television and online.
The internal communications provided by Yang suggest at least that CNN employees have little respect for him. In the messages, CNN employees called him a “jerk” and a “jerk” and said they were “going to nail this Zachary Young asshole.” Marquardt called him a “fucking young man” and quipped: “Here’s your funeral asshole.”
In its appeal, CNN argued that it did not intend to cause harm; that its language was either opinionated or ambiguous; and that its internal communications were journalistic fluff and reflected a sincere belief in the reporting. These arguments are used by the fact finder to determine entitlement. The issue on appeal concerns the proper defence, not the final evidence.
We must consider whether Young has presented reasonable evidence at this stage that provides a reasonable basis for the recovery of punitive damages. After reviewing all of the evidence presented in the light most favorable to Young, we conclude that he did so. Young presented ample evidence of actual malice, manifest malice, and outrageous conduct that would open the door to his pursuit of punitive damages. Whether Young ultimately wins is not the question before us. The court of first instance appropriately played its gatekeeping role and granted Yang’s motion to amend…
Devin Freedman of Freedman Normand Friedland LLP represents Young. Thanks to Griffin Klema (Klema Law) for the tip
