Excerpts from Judge Loren L. AliKhan’s ruling yesterday in Passantino v. Weissmann (D.D.C.):
The court accepts the following factual claims from Mr. Passantino’s complaint as true for the purpose of assessing the motion. Mr. Passantino, a lawyer for over thirty years, worked as a senior lawyer in the Trump administration in 2017 and 2018, and has since been in private practice.
After the U.S. Capitol attack on January 6, 2021, the House of Representatives formed a Select Committee to investigate. As part of the inquiry, the Committee interviewed various witnesses, including Cassidy Hutchinson, a former special assistant to President Trump under White House Chief of Staff Mark Meadows on January 6, 2021.
Mr. Passantino represented Ms. Hutchinson in her first three closed-door Select Committee depositions on February 23, March 7, and May 17, 2022. During this time, Ms. Hutchinson expressed reluctance to comply with the Committee’s requests in text messages to a friend, but also mentioned that Mr. Passantino wanted her to comply.
Following the third deposition in early June 2022, Ms. Hutchinson terminated Mr. Passantino as her counsel and hired new attorneys. She then gave a televised fourth deposition on June 28, which garnered significant media attention.
After the fourth deposition, Ms. Hutchinson informed the Select Committee of her intent to waive her attorney-client privilege with Mr. Passantino to share relevant information. Subsequently, the Committee scheduled a fifth deposition for September 14, 2022.
During the fifth deposition, Ms. Hutchinson disclosed details of her preparation with Mr. Passantino prior to her initial testimony. She recounted a conversation where Mr. Passantino advised her to downplay her role and use “I don’t recall” as a response. Ms. Hutchinson also mentioned feeling unable to be forthcoming during the process.
At the final public session of the Committee on December 19, 2022, a Congressmember disclosed evidence suggesting a lawyer had instructed a witness to falsely claim lack of recollection. Subsequent reports linked this lawyer to Mr. Passantino.
On September 15, 2023, Mr. Weissmann, a former prosecutor and current MSNBC commentator, posted a statement on social media regarding Mr. Hunt’s subpoena, garnering attention from his significant online following.
Passantino brought a defamation lawsuit (and related claims), and the court permitted the defamation allegation to proceed:
Mr. Passantino contends that Mr. Weissmann made defamatory statements…
Weissmann’s social media post severely damaged Mr. Passantino’s 30-year reputation and caused him to suffer significant financial losses. Prior to the allegations surrounding his representation of Ms. Hutchinson, Mr. Passantino had a spotless record and had never been accused of any unethical or illegal behavior.
The core question in this case is whether Mr. Weissmann’s statement that Mr. Passantino “coached a witness to lie” is a verifiably false fact or a subjective opinion. The parties do not dispute other possible defenses to a claim for defamation at this stage, such as the truthfulness of the statement. The court is only determining whether Mr. Weissmann’s statement qualifies as a subjective opinion.
The first factor from the Ollman v. Evans case requires the court to assess whether the statement has a clear factual implication. The term “coached” in Mr. Weissmann’s post implies that Mr. Passantino instructed Ms. Hutchinson to lie, which is a specific factual claim. Readers are likely to interpret the statement as alleging a specific act by Mr. Passantino.
The second factor involves the verifiability of the statement. Mr. Weissmann argues that the term “coached” is too ambiguous to be objectively verified, but the court disagrees, finding that the statement can be proven true or false based on common usage of the term.
The third factor considers the context in which the statement was made. In this case, the statement was sandwiched between an opinion and a factual assertion, without any indication of sarcasm or satire. The immediate context does not suggest that the statement about Mr. Passantino coaching Ms. Hutchinson to lie was anything other than a serious allegation.
Overall, the court concludes that Mr. Weissmann’s statement that Mr. Passantino coached a witness to lie is a verifiable factual claim rather than a subjective opinion. Passantino presents a contrasting viewpoint, contending that the statement in question must be a statement of fact as it is followed by a statement of fact. Due to the brevity of the full statement, the court faces challenges in determining whether the language is subjective or verifiable based on its placement alone.
The fourth factor of the Ollman test delves into the broader social context surrounding the statement. Mr. Weissmann argues that the platform X, where the statement was made, is commonly viewed as an informal and open internet forum. Some courts have ruled that statements made on platforms like Twitter are often perceived as opinions rather than facts by reasonable readers.
While X is known for facilitating the exchange of subjective ideas, it is also utilized by journalists and reporters to disseminate news alerts and factual information. Assuming that Mr. Weissmann’s statement is solely an opinion due to his use of the X platform overlooks societal expectations regarding journalistic standards on such platforms, particularly given Mr. Weissmann’s public figure status and ties to a news organization.
Mr. Weissmann’s background as a political pundit, former prosecutor, and experienced author may lead his audience to view his statements as facts. However, being a political commentator does not absolve him of liability for potentially defamatory statements. Political commentary does not grant blanket immunity, as individuals in this sphere can still make false assertions with damaging consequences.
While Mr. Weissmann’s statements may carry a subjective tone due to his role as a political pundit, his audience can reasonably anticipate a mix of opinions and facts. The court finds that, overall, the analysis of the Ollman factors leans towards the statement being a factual assertion rather than a subjective opinion.
It is important to note that this determination does not automatically establish the statement as false; the plaintiff must still demonstrate its falsity and prove that the defendant made it with the necessary mental state.
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