On Thanksgiving, Navy veteran Zachary Young filed an appeal for his $453 million defamation suit against the Associated Press. In addition to wanting Florida’s First District Court of Appeals to allow the case to proceed, Young also requested they order a new judge be assigned to preside over the case; pointing to Judge William Scott Henry’s comments about the merits of the case when he threw it out back in August.
The appeal accused the court of “erroneously granting” the motion and denying Young an opportunity for punitive damages, and taking direct aim at Judge Henry’s language:
The court wove a theme throughout the order that this case was a bad “sequel” to the CNN case that “should not have been made,” a “money grab,” and the “smuggling people” charge as innocuous as sneaking “candy” “into a movie theater.” The court’s irreverence and lack of judicial decorum reveal bias.
The filing accused the court of applying a “backwards” reasoning by first trying to determine if the AP had had expressed of actual malice against Young, rather than first trying to determine if the reporting could be seen as defamatory:
Step one asks whether the challenged statement is capable of defamatory meaning; step two asks whether, even if the words are defamatory, defendant is nonetheless excused from liability by a privilege; and step three asks whether any asserted privilege is lost because the statement was made with express or actual malice.
(…)
This reasoning is backwards. Privilege cannot negate defamatory meaning, and a court cannot avoid the required malice inquiry by backwardly declaring the statement non-defamatory based on privilege. When a court determines as a matter of law whether a privilege applies, the court must presume the statement to be defamatory.
Young stuck to his allegations that the AP defamed him by using the term “smuggle” to describe his operations to rescue people from Afghanistan during the collapse; continuing to point out that AP Style Guide gives a negative definition to the word:
AP’s statement that “Young’s business helped smuggle people out of Afghanistan” expressly accused Appellants of the crime of human smuggling and is classic defamation per se. AP further defamed Young by implication by creating the false impression that regardless of who funded Young’s rescue operations, Young was engaged in human smuggling. To the extent AP argued a different interpretation, defamatory meaning became an issue of fact for the jury.
(…)
AP’s use of “smuggle people,” which has a specific criminal definition, in the context of describing how Young (through Nemex) moved Afghans across the border, cannot, as a matter of law, constitute a fair and accurate summary of a lawsuit that vindicated Young and established his activity was lawful. The fair report privilege does not bar the lawsuit.
Appellants proffered evidence that, with actual malice, AP falsely accused Appellants of human smuggling. The proffered evidence included: the article itself accusing Appellants of “smuggl[ing] people”; AP Stylebook definition of “human/people smuggling” as criminal conduct; the Washington, D.C. lawsuit where AP asserts its right to choose its verbiage per its Stylebook; portions of the CNN record demonstrating Appellants did not engage in illegal activity; and AP’s post-publication actions, including its refusal to retract, the media blitz calling the lawsuit frivolous, and Initial Disclosures claiming the defamatory statement is true. Viewed in the light most favorable to Appellants, the court should have granted Appellants leave to assert a claim for punitive damages.
“On remand, the case should be reassigned to a new judge,” the filing requested.
Young feared unfair treatment from Judge Henry, the same judge who oversaw Young’s successful defamation case against CNN, given his comments comparing the AP case to a bad sequel to a movie and other comments that cast doubt on the merits:
Because of the inappropriate way Judge Henry composed the Order, Appellants reasonably fear, on remand, they would not receive fair treatment, and respectfully request that on remand, this case be reassigned to a new judge. Judge Henry demonstrated bias toward Appellants by inappropriately invoking the analogy that this case was a bad sequel to the CNN case that never should have been made. Rather than recognizing the great lengths Appellants are going to clear their names of the continued false and damaging criminal accusations, Judge Henry unfoundedly accused them of bringing this suit as a money grab.
“Judicial ethics and decorum counsel against engaging in this type of creative writing exercise in what is supposed to be a serious court order,” the appeal argued. “Here, it has created legitimate fear in Appellants that they did not receive fair treatment below and would not receive fair treatment on remand.”
In a statement to NewsBusters, Young’s appellate counsel Lisa Paige Glass, Esq. said:
“The circuit court reduced a false felony accusation to a candy bar analogy. Human smuggling is a federal and international crime. It is not a joke, and it is not a figure of speech. Florida law requires courts to take those words as they are written, and we are confident the First District will restore that basic principle.”
Daniel Lustig, Young’s lead counsel, told NewsBusters:
“This case is about accountability. When a major news organization tells the world that someone ‘smuggled people,’ it is making a direct criminal accusation. The law does not allow that to be brushed aside or reinterpreted after the fact. We are confident the First District will correct the error and allow a jury to decide the meaning of those words.”
Following Judge Henry's decision to throw the case out, the AP filed a motion to make Young pay for nearly $240,000 in legal bills.
