Judge Tosses Out Defamation Lawsuit Against Media Ratings Site NewsGuard
U.S. District Judge Katherine Polk Failla also dismissed claims brought against the U.S. government, which was named in the lawsuit as NewsGuard once had a contract with the U.S. Air Force's USAF Research Lab.
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Read the NewsGuard decision.
Launched in 2018 by Steven Brill and Gordon Crovitz, NewsGuard employs a team of journalists to review news sites and give them a score of 0-100, information that is used by consumers and clients including AI companies, search engines, news aggregators, brands and researchers.
Consortium News received a rating of 47.5 out of 100, with a NewsGuard 'Nutrition Label' stating that it 'frequently published false and misleading claims about the war in Ukraine and other important subjects.' NewsGuard said that it had 'determined that the site repeatedly publishes false content and does not gather and present information responsibly.' Consortium News also objected to NewsGuard's characterization of its reporting as from an 'anti-U.S. perspective.'
Failla concluded that the allegedly defamatory statements were protected opinion, and not actionable. The judge also concluded that Consortium News did not 'plausibly allege' that the statements were false, and that the media outlet failed to show that NewsGuard acted with actual malice, the standard that public figure plaintiffs have to meet in defamation claims..
In a set of criteria used to determine its ratings, NewsGuard put a red 'X' in its Nutrition Label for Consortium News when it came to whether it 'regularly corrects or clarifies errors.' The judge, however, determined that the rating was 'protected opinion.'
The judge also wrote that the use of the term ''anti-U.S.' does not have a precise, readily understood meaning and is not capable of being objectively characterized as true or false.'
Consortium News 'does not allege that its position is true and NewsGuard's is false. Rather, Plaintiff concedes that its position is but one perspective,' Failla wrote.
Consortium News also claimed that the contract between the U.S. government and NewsGuard violated the First Amendment. But Failla wrote that Consortium failed to show that NewsGuard 'acted jointly' with the U.S. government in a way that amounted to state action.
The judge wrote, 'Plaintiff argues that there was a 'meeting of the minds' between the Government and NewsGuard to 'share and work mutually toward the identical interest in identifying and suppressing' foreign propaganda, sufficient to constitute joint action. However, it is not enough that the Government and NewsGuard shared and worked toward a mutual objective of identifying foreign propaganda. If such activity toward shared goals were sufficient, then every government contractor would be transformed into a state actor, contrary to well-settled law.'
The military contract with NewsGuard ended in 2022.
The judge also rejected Consortium's argument that President Donald Trump's executive order on 'Restoring Free Speech and Ending Federal Censorship' amounted to 'a concession by the government that its First Amendment claim has merit.' Failla called Consortium's citation of the EO 'the legal equivalent of a 'Hail Mary' pass.'
Consortium News' attorney, Bruce Afran, said in a statement, 'Consortium News will appeal because we believe the trial court incorrectly made factual determinations at the beginning of the case when the issues were properly pled and give rise to claims of defamation and First Amendment violations.'
NewsGuard has been a target of FCC Chairman Brendan Carr, even though the federal agency does not have regulatory jurisdiction over the private rating service. In November, before he became chair, Carr accused NewsGuard of working in concert with advertising agencies to stifle conservative voices. At issue was a low rating that NewsGuard gave to Newsmax.
In response, Crovitz noted that 'many conservative sites get higher ratings from us than liberal sites get, such as Fox News getting a higher score than MSNBC and The Washington Examiner outscoring The New York Times.'
NewsGuard's lower ratings also have been given to left-leaning sites. In the lawsuit, the judge noted that 'It is fair to say that Consortium News offers a left-wing take on the news with an independent — and somewhat contrarian — streak.'
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