Mark Jacoby v. Cable News Network, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 10, 2021
• Docket: 21-12030
• Status: Unpublished

Opinion

USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-12030 Non-Argument Calendar ____________________

MARK JACOBY, individually, Plaintiff-Appellant, versus CABLE NEWS NETWORK, INC., a Delaware corporation, SARA MURRAY, individually,

Defendants-Appellees. USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 2 of 13

2 Opinion of the Court 21-12030

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:20-cv-01871-PGB-GJK ____________________

Before WILSON, LUCK, and BRASHER, Circuit Judges. PER CURIAM: Plaintiff Mark Jacoby appeals the district court order dismiss- ing his claims of defamation and defamation by implication against Cable News Network (CNN) and Sara Murray (collectively, De- fendants) for failure to state a claim. After careful review, we find that the district court did not err in dismissing Jacoby’s claims. Ac- cordingly, we affirm. I. Jacoby is the owner of Let the Voters Decide, a political pe- tition circulation business. The business provides voter registra- tion services as well as signature gathering services to secure ballot access for candidates and initiative petitions. Jacoby has stated that Let the Voters Decide is the largest network of professional peti- tion circulators in the country. In 2006 and 2007, Jacoby registered to vote at the address of his childhood home in Los Angeles, California, where he no longer resided at the time. During this period, Jacoby owned and oper- ated a petition signature-collection and voter registration business USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 3 of 13

21-12030 Opinion of the Court 3

called Young Political Majors. At that time, California law required petition signature-gatherers to sign a declaration that they were ei- ther registered to vote in California or were eligible to do so. In 2008, the Los Angeles County District Attorney’s office charged Jacoby with four felonies for registering to vote at an address where he did not live. Jacoby pled guilty to a misdemeanor related to his registration at his childhood home instead of his actual home. The other three charges were dismissed. In 2020, Kanye West’s presidential campaign hired Jacoby and his business to collect signatures on West’s behalf in several states, including Florida. In late 2020, CNN published two articles, both written by Murray, relevant to the present claim covering West’s campaign. On September 4, 2020, CNN published Murray’s first article, entitled “Kanye West isn’t going to be president, but his unconventional presidential bid forges on” (the First Article). The First Article contained the following statement, to which Jacoby took issue: Mark Jacoby, an executive at a company called Let The Voters Decide, is also helping the West campaign collect signatures in multiple states. Jacoby has previ- ously pleaded guilty to voter registration fraud re- lated to his work for the California Republican Party. A representative for the company said, “This years- old misdemeanor charge had nothing to do with any political campaign or voter, Let the Voters Decide, voter registrations, elections or any other matter and USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 4 of 13

4 Opinion of the Court 21-12030

any ongoing focus on it is misplaced and irresponsi- ble.” Following the publication of the First Article, Jacoby con- tacted CNN to inform them that the First Article contained incor- rect information. In particular, the First Article stated, “Jacoby has previously pleaded guilty to voter registration fraud related to his work for the California Republican Party.” Jacoby challenges this statement because he had in actuality pled guilty to the misde- meanor of registering himself to vote at his California childhood rather than his current address. Jacoby’s legal counsel subsequently demanded a correction. In its response to the demand letter, CNN identified three LA Times articles and a press release from the California Secretary of State to support its claims that Jacoby’s plea was related to his work for the California Republican Party. Following this exchange, CNN published a second article (the Second Article) on September 22, 2020, this time entitled “Kanye West’s campaign has hired GOP operative with history of controversial work.” The Second Article mostly detailed allega- tions of fraud associated with another organization with which West’s campaign contracted for assistance in its ballot access effort. In relevant part, the Second Article mentioned again Jacoby’s past felony criminal charges related to voter registration and his subse- quent plea to a lesser misdemeanor charge but further expanded on how the authorities investigated Jacoby and his then-company, Young Political Majors. Despite Jacoby’s representatives USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 5 of 13

21-12030 Opinion of the Court 5

repeatedly insisting that Jacoby’s misdemeanor plea was not rele- vant to his political work, the Second Article insinuated the oppo- site. Jacoby demanded that Defendants retract or correct these crit- ical statements. Defendants again refused. On October 9, 2020, Jacoby sued Defendants in the Middle District of Florida. He filed his Amended Complaint on January 4, 2021. Defendants moved to dismiss on January 19, 2021. On May 6, 2021, the district court dismissed Jacoby’s claims for defamation and defamation by implication for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In relevant part, the dis- trict court found that Jacoby is a limited public figure and thus must sufficiently plead that Defendants engaged in actual malice. Thus, the district court granted Defendants’ motion because it conse- quently found that Jacoby failed to plead actual malice. The May 6, 2021 Order—a dismissal without prejudice—gave Jacoby two weeks to file a second amended complaint and stated that if Jacoby did not do so, the dismissal would become final and given prejudi- cial effect. Because Jacoby did not file a second amended complaint by May 20, 2021, the district court dismissed the case with prejudice on May 21, 2021. Jacoby timely appealed. On appeal, Jacoby chal- lenges the district court’s holding that Jacoby is a public figure and thus must sufficiently allege actual malice on the part of Defend- ants to validly state claims for defamation and defamation by im- plication, which the district court found that he failed to do. II. USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 6 of 13

6 Opinion of the Court 21-12030

We review de novo the district court’s grant of a mo- tion to dismiss for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most fa- vorable to the plaintiff. Pincus v. Am. Traffic Sols., Inc., 986 F.3d 1305, 1310 (11th Cir. 2021). To withstand a motion to dismiss un- der Federal Rule of Civil Procedure 12(b)(6), a complaint must in- clude “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because we agree with the district court that Jacoby does not include enough facts to state a claim that would plausibly warrant relief, we affirm. III. Defamation and defamation by implication are state causes of action. As such, we apply Florida law here. Under Florida law, “[d]efamation has the following five elements: “(1) publication; (2) falsity; (3) [the] actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) [the] statement must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Defamation by implication arises in instances in which “the defendant juxta- poses a series of facts so as to imply a defamatory connection be- tween them, or creates a defamatory implication by omitting facts, [the defendants] may be held responsible for the defamatory USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 7 of 13

21-12030 Opinion of the Court 7

implication unless it qualifies as an opinion, even though the par- ticular facts are correct.” Id. at 1108 (internal quotation marks omitted). Whether a statement is defamatory is a question of law. See Turner v. Wells, 879 F.3d 1254, 1262–63 (11th Cir. 2018). We may not hold a defendant liable for defaming a public figure about a matter of public concern unless he is shown to have acted with ac- tual malice. Berisha v. Lawson, 973 F.3d 1304, 1310 (11th Cir. 2020), cert. denied, 141 S. Ct. 2424 (2021); see generally N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270–83 (1964). We find that Jacoby is a limited public figure for the pur- poses of this analysis, and consequently must adequately plead that Defendants acted with the requisite actual malice. Jacoby did not meet this burden. Because “[a]ll of the protections of defamation law that are afforded to the media and private defendants are . . . extended to the tort of defamation by implication,” Jacoby’s failure to plead actual malice also dispenses with his defamation by implication claim. Rapp, 997 So. 2d at 1108. We provide analysis below. A. Determining whether a plaintiff is a public figure, who is subject to the actual malice analysis, “is a question of law for the court to decide.” Michel v. NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016). “An individual may qualify as a public figure ei- ther generally—that is one with such fame and notoriety that he USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 8 of 13

8 Opinion of the Court 21-12030

will be a public figure in any case—or for only limited purposes, where the individual has thrust himself into a particular public con- troversy and thus must prove actual malice in regard to certain is- sues.” Berisha, 973 F.3d at 1310 (internal quotation marks omit- ted). The district court did not find, and Defendants do not argue, that Jacoby is a general public figure. However, the parties dispute on appeal whether Jacoby is a limited public figure. We agree with the district court that he is. Limited public figures “have thrust themselves forward in a particular public controversy and are therefore required to prove actual malice only in regard to certain issues.” Turner, 879 F.3d at 1272. We therefore first consider whether there exists here a public controversy. See Silvester v. Am. Broad. Cos. Inc., 839 F.2d 1491, 1494 (11th Cir. 1988). A public controversy concerns an issue that “had foreseeable and substantial ramifications for nonparticipants.” Id. at 1495 (internal quotation mark omitted). Jacoby does not dis- pute that a public controversy exists in this case. There are two relevant public controversies here: (1) West’s presidential cam- paign and related controversies, which include the efforts and le- gitimacy of the subcontractors with which it worked, and (2) alle- gations concerning the ethics with which Jacoby and his businesses, given the widespread nature of their work, have operated over time. Jacoby’s brief acknowledges the public nature of both con- troversies. Both controversies undoubtedly have far-reaching im- pact on the public. We thus agree with the district court that this case involves matters of public concern. USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 9 of 13

21-12030 Opinion of the Court 9

Given that the existence of a public controversy is estab- lished, we now consider the two elements to determine whether Jacoby is a limited public figure: (1) whether Jacoby played a central role in the controversy, and (2) whether the challenged statements were germane to Jacoby’s role in the controversy. Berisha, 973 F.3d at 1310. Jacoby has a central role in both controversies. With respect to West’s campaign, the record contains articles from several ma- jor networks reporting on his race and on issues related to West’s effort to qualify for ballots, including the work of signature-gather- ing companies that West contracted with. Jacoby’s work in the campaign has been covered or otherwise referenced by national outlets such as ABC News, The New York Times, and, central to this case, CNN. Jacoby himself has publicly weighed in on the cam- paign. The record contains articles from major news outlets in which he is quoted discussing topics related to West’s 2020 presi- dential run. With respect to the ethical allegations against Jacoby and his businesses, Jacoby has described the allegations—including his 2008 arrest—as part of a “long pattern of harassment against [him] for an entirely valid voter registration effort.” As a result, Jacoby acknowledges that he has often been the subject of report- ing on his “politically-motivated public arrest.” Jacoby’s Amended Complaint indicates his active and voluntary participation in the relevant controversies as the head of “the largest network of pro- fessional petition circulators in the country.” This role frequently places him and his business in the employ of politicians, whose very USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 10 of 13

10 Opinion of the Court 21-12030

jobs are to build and maintain a public presence. As evidenced by the record, Jacoby has been offered and has accepted at least occa- sional opportunity to comment on public matters, has been the subject of public comment and coverage, and has proximity to those in power, including the politicians for whom he has worked and the media personnel with whom he has interacted. Further, the statements at issue are germane to the contro- versies. The Articles at issue concern West’s campaign and Jacoby’s involvement. The statements that Jacoby identifies as de- famatory concern Jacoby’s 2008 California arrest for voter registra- tion fraud. We thus agree that Jacoby is a limited public figure for the same reasons that we found the plaintiff to be one in Berisha: “he was widely known to the public, he had been publicly linked to a number of high-profile scandals of public interest, he availed him- self of privileged access to the . . . media in an effort to present his own side of the story, and he was in close proximity to those in power.” Id. at 1311. B. Because Jacoby is a public figure and the defamatory mate- rial involves issues of legitimate public concern, Jacoby must prove that Defendants acted with actual malice to establish liability. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 659 (1989). To plead actual malice, Jacoby must allege facts that, taken as true, would show that Defendants published the defamatory USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 11 of 13

21-12030 Opinion of the Court 11

material with a “high degree of awareness of [its] probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). This is not an objec- tive test. Instead, our inquiry is whether Defendants entertained serious doubts about the truth of the published account or were otherwise “highly aware” that the account was likely false. Michel, 816 F.3d at 703. Even an “extreme departure from professional [publishing] standards” does not necessarily rise to the level of ac- tual malice. Harte-Hanks Commc’ns, Inc., 491 U.S. at 665. Actual malice demands factual allegations that allege more than a mere failure to investigate. Id. at 692. Instead, the factual allegations must show “that the defendant purposefully avoided further investigation with the intent to avoid the truth.” Michel, 816 F.3d at 703. Further, where the publisher includes information that “gives readers sufficient information to weigh for themselves the likelihood of an article’s veracity,” this showing tends to under- mine claims of actual malice. Id. Thus, the question here is whether Jacoby has plausibly alleged sufficient facts giving rise to a reasonable inference that Defendants published the statements with actual malice. We find that Jacoby does not. Jacoby’s brief is filled with conclusory allegations that De- fendants “published the defamatory statements with actual malice and common law malice,” including an allegation that Defendants “either knew that the statement [at issue] was false or recklessly disregarded the truth or falsity of the statement at the time it was made.” Much of Jacoby’s Amended Complaint makes similar con- clusory allegations that Defendants reserved an intention to USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 12 of 13

12 Opinion of the Court 21-12030

fabricate or otherwise misrepresent facts concerning Jacoby and his business so that he would suffer resulting reputational harm. We do not credit such allegations. See Turner, 879 F.3d at 1273. Taking only Jacoby’s factual allegations, his claim rests simply on his allegations that Defendants failed to consider “the public records created during the course of [Jacoby’s] California le- gal proceeding” or to heed “the admonitions of Plaintiff and Plain- tiff’s counsel” that the information upon which CNN relied in its publications concerning Jacoby was allegedly erroneous. He also claims that the Articles did not properly frame the statements from Jacoby’s representatives denying the relevance of his 2008 misde- meanor to his political work in the Articles. But Jacoby is not enti- tled to having Defendants credit his preferred sources of infor- mation or structure its articles in the manner that he desires. Again, even taking these facts as true, Jacoby must suffi- ciently plead facts tending to show that Defendants entertained se- rious doubts about the truth of the published account upon which their publications relied or were otherwise “highly aware” that the relevant account was likely false. Michel, 816 F.3d at 703. Not only does Jacoby not show this, but the facts that he does allege tend to demonstrate the contrary. In one example, Jacoby acknowledges that, with respect to CNN’s reference of Jacoby’s previous 2008 criminal charges, “Defendants did investigate . . . [and] tracked down three LA Times articles . . . and even uncovered an archived press release on the California Secretary of State’s website.” Jacoby does not allege any facts demonstrating that Defendants held USCA11 Case: 21-12030 Date Filed: 12/10/2021 Page: 13 of 13

21-12030 Opinion of the Court 13

serious doubts about the truth of these sources or even about whether the sources actually supported the position that Defend- ants utilized them for, even if Defendants were ultimately incor- rect. In another example, Jacoby cites sections of the Articles in which CNN shares statements from Jacoby’s representatives rebut- ting the implication that his 2008 misdemeanor was related to his political work or that Jacoby’s firm was linked to allegations of fraud against West’s campaign. Further, the Second Article di- rectly explains that “none of the allegations of fraud surrounding the West campaign have been directly tied to Jacoby or his firm.” Indeed, these statements, “where the publisher include[d] infor- mation contrary to the general conclusions reached in [the] article . . . tend[] to undermine the claims of malice” that Jacoby makes. See Michel, 816 F.3d at 703. Because Jacoby does not otherwise allege facts that plausibly state a claim that Defendants acted with actual malice, we affirm the district court’s finding here. IV. In short, Jacoby alleges no facts upon which we could find that he has “state[d] a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The judgment of the district court is thus affirmed. AFFIRMED.