2nd Circuit to King of Bullshit News: "No Redo on Review: You Lose, Fake News."

Heavy is the head that wears the crown—and the head of Central European News (CEN) boss Michael Leidig must weigh a little heavier after the 2nd Circuit twice declined to revive his defamation lawsuit against BuzzFeed for publishing an article anointing him "King of Bullshit News." Leidig v. BuzzFeed, Inc., 788 F. App'x 76 (2d Cir. 2019), cert. denied, 2020 WL 5882322 (U.S. Oct. 5, 2020)

As BuzzFeed reported, CEN churned out clickbait stories from far-flung corners of the globe that often turned out to be "inaccurate or downright false." Alan White, Craig Silverman & Tom Phillips, The King of Bullsh*t News, BuzzFeed News (Apr. 24, 2015), https://www.buzzfeed.com/alanwhite/central-european-news. Leidig sued for libel. Late last year, the 2nd Circuit affirmed a decision granting summary judgment in BuzzFeed's favor and, on October 5, 2020, the U.S. Supreme Court denied Leidig's petition for certiorari.

Background

English journalist Michael Leidig founded CEN as a Vienna-based newswire service specializing in outlandish tabloid news stories, often originating from distant locales in Eastern Europe and China. For example, CEN has produced stories about a Russian man who survived a bear attack after his Justin Bieber ringtone scared off his grizzly assailant and a series of articles about men being castrated by an angry mob, jealous wife or unhinged aunt, respectively. These viral news stories are widely published by CEN's tabloid newspaper clients, including the Daily Mail, Metro, and The Mirror in the United Kingdom, because they tend to generate heavy online traffic that can be converted into advertising revenue.

Three reporters at BuzzFeed News—including Craig Silverman, who coined the term "fake news" to describe the kind of dubious viral content proliferating online, and Tom Phillips, who specializes in debunking online hoaxes—became suspicious of CEN's content and spent many months researching the veracity of its viral news stories. On April 24, 2015, BuzzFeed published an article about CEN and Leidig entitled "The King of Bullsh*t News: How a small British news agency and its founder fill your Facebook feed with stories that are wonderful, wacky—and often wrong."
BuzzFeed identified 11 CEN stories that were "completely false or ... based on images that did not match the stories" and an additional eight articles that "contained suspicious details such as perfect quotes that appeared in no other coverage."

Based on the analysis in its article, BuzzFeed concluded that "an alarming proportion of CEN's 'weird news' stories are based on exaggeration, embellishment, and outright fabrication – and that the company has scant regard either for the accuracy of its content or for what happens to the people ... whose names and images are spread across the world." Irked at this characterization of his content, Leidig and CEN sued BuzzFeed for defamation in January 2016.

NY District Court Tosses Case

Judge Marrero of the Southern District of New York granted BuzzFeed's motion for summary judgment lawsuit on March 27, 2019, holding that Leidig had failed to shoulder the burden of proving that BuzzFeed's reporting was substantially false. Leidig v. BuzzFeed, Inc., 371 F. Supp. 3d 134 (S.D.N.Y. 2019).

Reaffirming the traditionalist view that facts matter, Judge Marrero rejected Leidig's own "self-serving and discredited testimony" that CEN did not make up stories, in the absence of a shred of evidence capable of proving that any of the stories discussed were true. Indeed, Leidig conceded the truth of 215 out of the 216 statements of undisputed material fact that BuzzFeed advanced in support of its reporting, including substantial evidence demonstrating that CEN could not identify the source of fabricated quotations or other information that BuzzFeed concluded to be made up.

Ultimately, Judge Marrero held "no jury could find BuzzFeed's statements to be false" on the basis of Leidig's declaration alone—and in the absence of reliable evidence supporting CEN's reporting—because "the First Amendment demands more" in defamation cases than the "bland cryptic claims of falsity supported by the credibility of a witness [that] might be sufficient to establish a proposition in other civil cases."

2nd Circuit Affirms Summary Judgment

Leidig and CEN appealed to the 2nd Circuit. On December 2, 2019, a 2nd Circuit panel comprising Judges Carney, Park, and Jacobs heard oral argument. Leidig's attorney, Harry H. Wise III, argued that Judge Marrero's opinion should be reversed because Leidig had submitted a declaration stating that he had never falsified a story and because some of CEN's articles were true. Referring to one of the CEN stories about a two-headed goat in China—which contained fabricated quotes according to BuzzFeed's article—Mr. Wise invited the court to "actually see the two-headed goat" in a photograph.

Judge Park asked "to just get away from the two-headed goat for a second." He asked whether it was significant that BuzzFeed reported that 15 CEN stories were false, but CEN was only "challenging five of them"—and tacitly accepting that BuzzFeed's reporting on the other 10 were true.

Judge Carney asked why Leidig's libel claim should survive dismissal when he admitted that two-thirds of CEN's articles were false. Wise responded that BuzzFeed was wrong to report that CEN always made up its news. "Your answer is, 'Not always?'" asked Judge Carney. "Yes," Wise replied, apparently arguing that Leidig should succeed on his defamation claim because CEN does not always make up its content.

Moreover, Leidig's counsel did not identify the source of any quotations BuzzFeed alleged to be made up.

The 2nd Circuit, perhaps unsurprisingly, took only a little over two weeks to affirm Judge Marrero's order in a summary order issued on December 19, 2019. The court held that "the District Court correctly determined that Plaintiffs failed to establish any genuine issue of material fact with respect to the falsity of BuzzFeed's contested statements."

Importantly, the 2nd Circuit endorsed and approved of Judge Marrero's application of the Celle standard—which requires libel plaintiffs to pass a heightened evidentiary threshold to survive dismissal on summary judgment. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163 (2d Cir. 2000). "As we held in Celle," the court wrote, "[w]hile a bland cryptic claim of falsity supported by the credibility of a witness might be sufficient to establish a proposition in other civil cases, the First Amendment demands more." Here, Judge Marrero wrote:

[R]easonably determined that Plaintiffs' conclusory assertions alone are insufficient to establish a genuine issue of material fact with respect to the falsity of the contested statements made by BuzzFeed. We explained in Celle that, '[t]o accept such a colorless denial as sufficient proof would effectively shift plaintiffs' burden of establishing falsity onto media defendants to establish truth.' Our reasoning applies just as strongly here, where Plaintiffs published the stories that BuzzFeed described as fabricated. Plaintiffs 'can be expected to have easy access to additional proof of falsity.' That is, Plaintiffs are better positioned than Defendants to show whether their reports of two-headed goats, people walking cabbages out of loneliness, and so on, were accurate and substantially true.

Having failed to even lay a "foundation for their bald assertion of falsity," Leidig's arguments on appeal were rejected and dismissal of his claim was affirmed.

Certiorari Denied

Unwilling to accept defeat, Leidig filed a petition for rehearing en banc, arguing that his "declaration that he never created a fake story or added a fake quote to a story, and that financial difficulties did not cause him or his company to turn to fraud, is sufficient to create a question as to whether BuzzFeed's allegation of those things is false." Unfortunately for Leidig, the 2nd Circuit disagreed and declined his petition on January 31, 2020The U.S. Supreme Court then denied his petition for certiorari on October 5, 2020.

The 2nd Circuit's opinion will help media organizations seeking summary judgment on substantial truth grounds by precluding a libel plaintiff from creating a material issue of fact simply by denying any wrongdoing. In addition, the court's endorsement of Judge Marrero's clear-eyed decision—which zeros in on just the facts—provides some reassurance and respite to those feeling disoriented by the fake-news vortex.

BuzzFeed Inc. was represented by Katherine Bolger, Rachel Strom, and John Browning of Davis Wright Tremaine.

Katherine Bolger and Rachel Strom are partners and John Browning an associate in Davis Wright Tremaine's New York office.