Flynn v. Cable News Network, Inc., Civil Action 21 Civ. 2587 (GHW) (SLC)

• Decision Date: 22 October 2021
• Docket Number: Civil Action 21 Civ. 2587 (GHW) (SLC)
• Parties: JOHN P. “JACK” FLYNN and LESLIE A. FLYNN, Plaintiffs, v. CABLE NEWS NETWORK, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

JOHN P. “JACK” FLYNN and LESLIE A. FLYNN, Plaintiffs,
v.
CABLE NEWS NETWORK, INC., Defendant.

Civil Action No. 21 Civ. 2587 (GHW) (SLC)

United States District Court, S.D. New York

October 22, 2021

HONORABLE GREGORY H. WOODS, United States District Judge:s

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

Plaintiffs John P. (“Jack”) and Leslie A. (“Leslie”) Flynn (together, the “Flynns”), assert that Defendant Cable News Network, Inc. (“CNN”) defamed them when it displayed their image captioned with a chyron stating, “CNN Goes Inside a Gathering of QAnon Followers.” (ECF No. 7 ¶ 4). The Flynns allege that they are not “followers” of QAnon, and assert against CNN claims for defamation and false light under Rhode Island law. (Id. ¶¶ 3, 6). CNN has moved to dismiss the Flynns' claims for failure to state a claim and for attorneys' fees and costs. (ECF No. 17 (the “Motion”)). For the reasons set forth below, I respectfully recommend that the Motion be GRANTED insofar as the Flynns' claims be dismissed with prejudice, and DENIED as to CNN's request for attorneys' fees and costs.

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II. BACKGROUND

A. Factual Background

The Court summarizes the Flynns' factual allegations in the Amended Complaint (“AC”) (ECF No. 7), which the Court accepts as true for purposes of the Motion. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 3100256, at *1 n.1 (S.D.N.Y. June 11, 2000) (“Sanderson I”).

1. QAnon

The Flynns allege that, “[a]ccording to the Federal Bureau of Investigation (‘FBI') and the Department of Homeland Security (‘DHS'), ‘QAnon' is a ‘domestic violence extremist (‘DVE') group and a ‘domestic terrorism threat.'” (ECF No. 7 ¶ 1).^[1] The Flynns cite The Wall Street Journal's description of QAnon as a:

far right-wing, loosely organized network and community of believers who embrace a range of unsubstantiated beliefs [that] center on the idea that a cabal of Satan-worshipping pedophiles - mainly consisting of what they see as elitist Democrats, politicians, journalists, entertainment moguls and other institutional figures - have long controlled much of the so-called deep state government, which they say sought to undermine [former President] Trump, mostly with aid of media and entertainment outlets

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(Id. ¶ 1 (quoting Brett Forrest, What is QAnon? What We Know About the Conspiracy-Theory Group, THE WALL STREET JOURNAL (Feb. 4, 2021 8:38 PM), https://www.wsj.com/articles/what-is-qanon-what-we-know-about-the-conspiracy-theory-11597694801?mod=articleinline] (the “WSJ Article”)). The Flynns allege that, “[o]n January 6, 2021, adherents of QAnon were among the ‘most prominent members of the mob' [that] stormed the United States Capitol in Washington, D.C.” (the “January 6 Riot”). (Id. (quoting the WSJ Article)). The Flynns also cite a United States House of Representatives Resolution passed on October 2, 2020 (the “House Resolution”), which referenced the FBI Bulletin, stating that “QAnon is a movement promoting a collection of unfounded conspiracy theories that have spread widely on the internet since 2017, ” and “condemn[ed] QAnon and reject[ed] the conspiracy theories it promotes . . .” (ECF No. 19-5 at 3-4; see ECF No. 7 at 12 n.5 (alleging that “[t]he defamatory nature of CNN's false statements associating [the Flynns] with QAnon is evidenced by the wholesale condemnation of QAnon in the [House Resolution]”)).

The Flynns allege that, “[i]n the wake of the January 6, storming of the Capitol, a chorus of left-wing media outlets began to spread false narratives about QAnon.” (ECF No. 7 ¶ 2). Those “false narratives included the assertion that retired Lieutenant General Michael T. Flynn” (“General Flynn”), who previously served as National Security Advisor to former President Donald J. Trump, “was the ‘founder' of QAnon.” (Id. ¶¶ 2, 4).

2. The Flynns

The Flynns are citizens of Rhode Island. (ECF No. 7 ¶ 8). Jack is the General Manager of a seafood processing business, and Leslie is a stay-at-home mother. (Id.) The Flynns have been

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married for 23 years, during which they have raised four children and have three grandchildren. (Id.) They previously “enjoyed an untarnished reputation in the community.” (Id.)

General Flynn is Jack's brother. (ECF No. 7 ¶ 2). On July 4, 2020, General Flynn posted to Twitter a video taken during a Fourth of July barbeque at the Flynns' home in Rhode Island (the “Video”). (Id. ¶ 4). In the Video, General Flynn, the Flynns, and other members of their family stood with their right hands raised and repeated the oath to the United States Constitution (the “Oath”). (Id.)^[2] After repeating the Oath, General Flynn stated, “where we go one, we go all, ” which the Flynns and their family each repeated, and then stated, “God Bless America.” (Id.)

For several years, Jack maintained the Twitter account, @GoJackFlynn, and Leslie maintained the Twitter account, @lflynn1998. (ECF No. 7 ¶¶ 14, 23(a)). The AC features screenshots of several of Jack's tweets, and notes that all of his “tweets and retweets are preserved.” (Id. at 16 n.7). In an August 13, 2020 thread, Jack tweeted, “What's wrong with the statement: Where We Go 1 We Go All?? ANYONE?? #WWG1WGA, ” and invited another Twitter user to “repost the [O]ath we took on the 4th, ” i.e., the Video. (ECF No. 7 at 13 ¶ 23.a.). In an August 20, 2020 thread, Jack tweeted:

I was told today that QAnons are dangerous people to be aligned with. That there is actually “no plan”. True or not, most people seem pretty normal to me who support the idea of Q. I advocate for the Constitution and Bill of Rights. [American flag emoji] if Q does too~No harm no foul. #KAG2020. [Retweeting:] There is nothing wrong with QAnon. Just people doing their own research and learning independence of thought to find the truth . . .

(ECF No. 7 at 14 ¶ 23.a.). In an August 21, 2020 tweet, Jack replied to a tweet containing the American flag overlaid with a large “Q” and text reading “WHERE WE GO ONE WE GO ALL, ”

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stating “If this means you believe in the constitution and equal justice under the law then this works for me. [American flag emoji]” (ECF No. 7 at 15 ¶ 23.a.). In another tweet the same day, Jack stated, “I don't know who or what Q is so there's that. But no ones [sic] hurting each other its [sic] civilized encouraging people to learn independently supports [sic] trump and the constitution. So. WTF. #WWG1WGA”. (Id. ¶ 9).^[3] On January 7, 2021, the day after the January 6 Riot, “Jack left Twitter.” (Id. ¶ 14).^[4]

In the AC, the Flynns cite reports that the phrase, “where we go one, we go all, ” was engraved on a bell on a sailboat owned by former President John F. Kennedy, and also on the bell of a “1911 brigantine rigged sailing ship Eye of the Wind, ” which was referenced in a 1996 Ridley Scott film, White Squall. (ECF No. 7 at 4 n.1). The Flynns state that their recitation of “where we go one, we go all” in the Video “was not an oath of allegiance to QAnon, or any kind of oath at all. It was a simple, family, July 4 statement of support for each other.” (Id.) They also point to a July 6, 2020 tweet by General Flynn's attorney, Sidney Powell, stating that, “To all those apparently traumatized or struggling to comprehend [the V]ideo above, including all the #Left and R[e]gressive media, the oath comes from federal statute at 5 USC 1331.” (Id. at 19 ¶ 23.a). In a separate tweet, quoted in the AC, Powell also stated that the phrase, “where we go one, we go all”:

represents the sentiments expressed by John Donne in For Whom The Bell Tolds [sic]. Those who would make it into a ‘conspiracy theory' of any kind or anything negative are really grasping for straws. We love this great country and our fellow man. We salute the #flag & #StandUp for all that is good & true. As Donne wrote: “No man is an island, entire of itself; every man is a piece of the continent.” “a

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part of the main. If a clod be washed away by the sea Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were: any man's death diminishes me, because I am involved in mankind[.]”

(ECF No. 7 at 22-23 ¶ 23.a). Powell then quoted the oath, followed by “WWG1WGA.” (Id. at 23 ¶ 23.a).

The Flynns state that they “are not followers or supporters of any extremist or terrorist groups, including QAnon.” (ECF No. 7 ¶ 6). The Flynns allege that “Jack did not use QAnon slogans or code language or retweet users because they had a ‘Q' in their handle, ” (id. at 16 ¶ 23.a.), and assert that “CNN misrepresented that [they] followed and supported QAnon and pledged allegiance to this extremist group.” (Id. at 25 ¶ 23(a)).

3. CNN's Reporting

On July 7, 2020, CNN^[5] published the Video, accompanied by an article written by Marshall Cohen, who noted that General Flynn's Twitter post of the Video included the hashtag, “#TakeTheOath”, with an American flag emoji. (ECF No. 7 at 4 n.2 (the “Cohen Article”)). The Flynns allege that CNN's assertion in the Cohen Article that #TakeTheOath “was a QAnon hashtag” was false. (Id.)

On January 31, 2021, CNN aired a “Special Report” hosted by Anderson Cooper (“Cooper”) entitled “Inside the QAnon Conspiracy.” (ECF No. 7 ¶ 2 (the “January 31 Report”)). In the January 31 Report, “CNN called QAnon a ‘deranged conspiracy cult[, ]” said that QAnon's conspiracy theories were “‘actually based on age-old racist and anti-Semitic beliefs[, ]” and said that QAnon “promoted ‘ancient and dark biases and bigotry in World history.'” (Id.) CNN

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characterized QAnon supporters as “detached from ‘reality'” and having “an utter ‘disregard' for the facts.” (Id.) CNN stated “that it was ‘abundantly clear' that QAnon was a ‘dangerous and violent movement' . . . that has become ‘insurrectionist.'” (Id.)

On February 3, 2021, CNN...