The defamation suit that Nina Jankowicz – the former director of the Department of Homeland Security’s disinformation board (since closed) – filed against Fox News was dismissed in Delaware on July 22. Judge Colm F. Connolly’s succinct decision was notable not just for its powerful prose but also for its procedure. Jankowicz’s claims were so anemic that she was not even allowed to get in front of a jury.
An Ironic Lawsuit
Jankowicz, a self-proclaimed “internationally recognized expert in disinformation,” filed the suit under New York defamation law, claiming Fox News anchors (including Maria Bartiromo, Sean Hannity, and Tucker Carlson) had targeted her on Fox programming. Soliciting donations for the shaky lawsuit, Jankowicz posted on then-Twitter that “Fox News lied about me hundreds of times to millions of people. Help me hold them accountable for the harm they do.”
Yet, as noted by Judge Connolly, Fox News didn’t lie at all. A number of the Jankowicz-alleged untruths by Fox were expressions of opinion, or speculations about subjective intent, that cannot be proved true or false. For instance, when the disgraced expert left the government disinformation board, it was not a defamatory statement for Fox anchors to chortle and say, “Jankowicz was so absurd that she had to go away.”
The Court noted that the chief factual claim of the complaint was that “the [Disinformation] Board was a department … dedicated to working with the special media giants for the purpose of policing information,” but that “the statement is not defamatory because it is not false.” The opinion also found Fox News was accurate when it claimed “that she endorsed the notion of having ‘verified’ individuals edit the content of others’ tweets” on Twitter. Jankowicz’s complaint boomeranged into self-indictment.
Rule 12 (b)(6) Death by Truth
The ruling is a double jurisprudential trouncing because it repudiated the complaint’s factual assertions and did so as the product of a motion under Federal Rules of Civil Procedure Rule 12(b)(6), which essentially tests the sufficiency of complaints following discovery but prior to trial. Rule 12(b)(6) motions rarely prevail because the bar is so high: The movant must establish that even if all the facts alleged in the complaint are taken as true, the complaint has still “failed to state a claim upon which relief can be granted.”
In Jankowicz v. Fox News, the plaintiff couldn’t even conjure sufficient disinformation (which would have been presumed true for the purposes of this motion) to surmount this rarely fatal hurdle. New York defamation law requires a written defamatory statement against the plaintiff, publication, fault (i.e., knowledge of falsehood), the statement’s falsity, and damages. In the case of a public official, which Ms. Jankowicz most certainly is, a plaintiff must establish actual malice.
Requirement number four is a litigation deathblow for the complaints of the former executive director of the federal government’s Orwellian disinformation board: Truth is an absolute defense to defamation actions, and Fox News told the truth. Nina Jankowicz has demonstrated difficulty comprehending that concept.
Fox News Vindicated
Of the Hunter Biden laptop, Jankewicz outrageously claimed that “we should view it as a Trump campaign product,” which has aged rather nauseatingly from a public official self-styled as a disinformation warrior. She created a Mary Poppins parody in a ludicrous viral TikTok video to condemn alleged COVID disinformation. (“Information laundering is really quite ferocious. It’s when a huckster takes some lies and makes them sound precocious….”). Both are as cringe-worthy as the dismissal of her Fox News suit for not stating any claim at law upon which relief at trial could possibly result.
The rule of law still has some legs in America, and they were used to run a vapid, nuisance suit and a precocious huckster out of Dodge. The US District Court apparently agreed with the Disinformation Board: “Jankowicz’s complaint was so absurd that it had to go away.”
