By Jonathan Stempel
(Reuters) -A U.S. federal appeals court on Thursday revived a defamation lawsuit accusing CNN of defaming Project Veritas in its explanation of why the conservative group, which is often accused of using deceptive tactics, was suspended from Twitter in 2021.
The 11th U.S. Circuit Court of Appeals in Atlanta said Project Veritas could sue over CNN journalist Ana Cabrera’s on-air statement that it was suspended for “promoting disinformation,” rather than for publishing private information, or “doxxing.”
Without ruling on the merits, the three-judge panel also said Project Veritas plausibly alleged that CNN acted with actual malice, meaning it knew Cabrera’s statements were false or acted with reckless disregard for their truth.
CNN, part of Warner Bros Discovery, and its lawyers did not immediately respond to requests for comment.
Libby Locke and Joe Oliveri, who represent Project Veritas, said in a joint statement the case will proceed toward a possible jury trial.
“Today’s decision sends a strong message to the media: The truth matters,” they said.
Based in Mamaroneck, New York, Project Veritas is known for using covert recordings against opponents, and once obtained the diary of Democratic President Joe Biden’s daughter Ashley.
Cabrera now works for MSNBC and is not a defendant. Twitter is now known as X and owned by Elon Musk, the billionaire CEO of Tesla.
The decision came after the federal appeals court in Manhattan in August granted former Alaska Governor Sarah Palin a new trial against the New York Times over an editorial she said was defamatory.
Some conservatives want to make it easier for courts to hold media liable for defamation. Two Supreme Court justices have urged reconsideration of the actual malice standard.
DIFFERENT ‘GIST’
Cabrera told CNN viewers on Feb. 15, 2021 that Project Veritas’ Twitter suspension four days earlier was part of a broader crackdown against misinformation.
Her colleague Brian Stelter appeared to agree, saying the group “got swept up in a Twitter policy by violating multiple rules.”
After CNN refused a retraction, Project Veritas sued, citing Cabrera’s Feb. 11, 2021 tweet stating the correct reason for the suspension.
U.S. District Judge Steve Jones dismissed the case in March 2022, saying Cabrera’s statements were substantially true under applicable New York law.
But in Thursday’s decision, Circuit Judge Elizabeth Branch, appointed to the bench by Republican President-elect Donald Trump, said viewers might view disseminating misinformation as more serious.
“The relevant question is whether the ‘gist’ or ‘substance’ of being suspended for ‘promoting misinformation’ is the same as being suspended for ‘publishing private information of another without their consent,'” Branch wrote. “It is not.”
Branch also said Project Veritas sufficiently pleaded that CNN had “serious doubts” about Cabrera’s statements.
The appeals court returned the case to Jones. Circuit Judge Ed Carnes, an appointee of Republican President George H.W. Bush, concurred in the decision.
“If you stay on the bench long enough, you see a lot of things,” he wrote. “I never thought I’d see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case.”
The case is Project Veritas v Cable News Network Inc, 11th U.S. Circuit Court of Appeals, No. 22-11270.
(Reporting by Jonathan Stempel in New York; Editing by Mark Potter and Marguerita Choy)
