Kash Patel’s Implausible Lawsuit Against The Atlantic
On Friday, April 17th, The Atlantic published a two-thousand-word story about the F.B.I. director Kash Patel’s alleged excessive drinking. Titled “The FBI Director Is MIA,” the piece recounted multiple sources’ serious concerns about the drinking—how it was affecting Patel’s ability to deal with F.B.I. matters and, potentially, putting national security at risk. The reporter, Sarah Fitzpatrick, said that she had spoken to dozens of sources, including current and former F.B.I. officials, Department of Justice officials, lawyers, lobbyists, and hospitality workers, who painted a picture of a director who frequently gets visibly drunk at night clubs, including one in Las Vegas called the Poodle Room. Patel’s drinking allegedly resulted in him often being unavailable to fulfill his duties or asleep at critical times. In a particularly striking anecdote, according to multiple sources, a request for “breaching equipment” was made to smash down a locked door to a room when agents were unable to get a response from Patel, who was inside. (It’s unclear whether the door was actually broken down.) Fitzpatrick later described sources who were so concerned about the national-security risk of a regularly incapacitated director that they felt alarm “bordering on panic.”
The piece includes statements of support for Patel from the White House spokesperson Karoline Leavitt (“Director Patel remains a critical player on the Administration’s law and order team”) and from the acting Attorney General Todd Blanche (“Anonymously sourced hit pieces do not constitute journalism”). Carefully read, the statements did not amount to denials of the allegations in the piece. That was left to Patel himself, who, when asked for a response prior to publication, told The Atlantic, “Print it, all false, I’ll see you in court—bring your checkbook.”
Notwithstanding the convoluted grammar of the statement, Patel was more or less true to his word. On Monday, April 20th, he filed a two-hundred-and-fifty-million-dollar lawsuit against the Atlantic Monthly Group, the publisher of The Atlantic, and Fitzpatrick. (As a lawyer, I wish that every article describing a lawsuit would note that the sums demanded are purely for the benefit of headline writers and should always be read in a Dr. Evil voice. The minimum amount for a federal court to accept a lawsuit of this type is seventy-five thousand dollars, and plaintiffs always have to prove their actual financial damages at trial. No one simply wins whatever amount is demanded in the defamation complaint.)
This suit alleges one count of defamation. It not only claims that The Atlantic article contains specific false statements about Patel but that the magazine’s editors knew that the statements were false before they published them. The second point is critical, because, according to settled Supreme Court law, a government official such as Patel cannot win a defamation suit just because a writer got a fact wrong. The plaintiff ultimately must prove that the publishers either knew that what they were publishing was false or that they acted with “reckless disregard for the truth”; in other words, that they thought it was probably false but published all the same. This is the “actual malice” standard of defamation law, which has nothing to do with malice, and is not even actual. If the publisher had a good-faith belief in the truth of the article (and didn’t intentionally avoid learning the truth), the plaintiff cannot succeed, and the case should be thrown out.
But a plaintiff can’t simply assert, without any backup, that the publisher lied. Courts have held that a complaint must also point to specific plausible facts demonstrating that the publisher knew the article was false. Knowing this, Patel’s lawyers have taken pains to show that in the case of The Atlantic. Patel’s lawyers, however, seem to misunderstand how the law (or logic) works. They assert that The Atlantic must have known that the allegations in the article were false for a host of reasons: because Patel had denied the allegations; because Patel had taken fewer vacation days than other directors; because The Atlantic had published negative pieces about Patel in the past, allegedly showing that they were biased against him; and because some sources were likely politically opposed to Patel. Of course, none of those claims plausibly establish that either The Atlantic or Fitzpatrick had reason to doubt the dozens of sources cited in the piece.
Most embarrassingly, Patel claims that The Atlantic should have known that the article was false because he had already sued someone who had made a similar claim on MSNBC about his spending time in night clubs. In May of last year, Frank Figliuzzi, a former assistant director for counterintelligence at the F.B.I., was a guest on “Morning Joe.” In response to a question about Patel’s lack of visibility, Figliuzzi said, “Yeah, well, reportedly, he’s been visible at night clubs far more than he has been on the seventh floor of the Hoover Building.” Patel promptly sued Figliuzzi in federal court in Texas, and Patel’s lawyers hammered this fact in their complaint against The Atlantic. As a matter of logic, it’s less than airtight. Worse, however, was that on Tuesday, a day after the suit against The Atlantic was filed, the Texas court dismissed the case against Figliuzzi, stating that Patel hadn’t met the standard for a defamation claim. As we lawyers say, ouch.
Coincidentally, earlier this month, a federal court in Florida dismissed Donald Trump’s defamation lawsuit against the Wall Street Journal in a ruling whose logic would seem to apply to Patel’s suit against The Atlantic and Fitzpatrick. Trump sued over an article that described a drawing of a naked woman, apparently signed by Trump, included in a birthday book for Jeffrey Epstein, along with the note, “Happy Birthday—and may every day be another wonderful secret.” When asked for comment prior to publication, Trump denied either making or signing the drawing and threatened to sue the Journal if it published the piece. It did, and the next day, he did. Later, a congressional committee subpoenaed the birthday book from the Epstein estate, and publicly released the precise drawing and note described in the Journal article.
The Florida court held that Trump’s denial to the newspaper before publication did not mean that its editors knew the article was false, or that they even seriously doubted the truth of the article. That is, the President had failed to show actual malice. “The Complaint comes nowhere close to this standard,” the court said. Double ouch. Unfortunately, the judge went on to decide that Trump should have a chance at a do-over, so he will be able to file an amended complaint, notwithstanding that the congressional release of the birthday note should have conclusively established the truth of the article.
The point is not, of course, that denials from government officials should be ignored. Careful journalists consider denials and include them in reported pieces about those officials’ actions. The point is that, for journalism to see the light of day, reporters have to be able to publish critical, rigorously reported pieces that they believe to be true in the face of those denials. If a mere denial (or even a denial plus a threat of a lawsuit plus a prior lawsuit) were sufficient to create a presumption of actual malice, no such pieces would be published. As a result, Americans would be less informed about the actions of government officials, and democracy would suffer.
The complication that The Atlantic faces, and which Patel’s lawyers are well aware of, is that virtually all the sources it relies on are anonymous. This should not be a problem for the actual-malice analysis. The Atlantic may (and no doubt does) believe that the many sources Fitzpatrick spoke to were telling the truth, even if they insisted on anonymity. The issue becomes one of proof at trial: if The Atlantic refuses to reveal the identity of the sources, it can potentially face a difficult burden in proving to a jury that they were credible. Clearly, the editors of The Atlantic felt that the story was important enough to take that risk.
Sources have valid reasons for requiring anonymity, and reporters have valid reasons for agreeing to it. Contrary to Patel’s complaint, sources are not solely, or even mostly, acting out of a desire to score political points without consequence. According to The Atlantic piece, sources were speaking to Fitzpatrick because they were genuinely worried about national security, particularly at a moment when we are at war with a country that has established sophisticated hacking capabilities and a history of sponsoring international terrorism. Conversely, sources claimed to Fitzpatrick that they were worried about retribution from the F.B.I. if they were named. That concern is hardly farfetched. Patel’s 2023 book, “Government Gangsters,” includes a list of names he identified as “corrupt actors,” and though he denies that it is an “enemies list,” several names on the list have been investigated by the F.B.I. A story in the Times last Wednesday detailed how the F.B.I. initiated a preliminary criminal investigation into one of its reporters who had written a critical piece about Patel’s girlfriend receiving government security and transportation. The move appeared to be an attempt to criminalize routine news-reporting practices. The executive editor of the Times, Joseph Kahn, called it “alarming.” According to the Times, the investigation was halted only after officials at the Justice Department balked. That story, too, relies on anonymous sources.
Anonymous sources are critical for these kinds of stories, but that hardly means that reporters and publishers merely transcribe gossip. To the contrary, professional news organizations make extensive efforts to corroborate allegations by seeking multiple independent firsthand accounts, secondhand accounts from people who heard about it at the time, publicly available information about travel or appearances, and more. Of course, it is possible for the press to get things wrong or to make mistakes, but, as the Supreme Court has held, the greater harm to society—a danger to democracy—is of a press that is too afraid to publish critical information.
In an interview with The Atlantic’s Hanna Rosin, on April 23rd, Sarah Fitzpatrick said that she stood by every word of her piece and that, since publication, she has been inundated with new sources reaching out to her to corroborate the story. ♦