SDNY COURTHOUSE, March 25 –
In the libel case by
Matt Taibbi against Eoin Higgins and Hachette Book Group
over the book "Owned," an oral argument on the defendants'
motion to dismiss on First Amendment grounds was held on
March 25 by U.S. District Court for the Southern District
of New York Senior Judge George B. Daniels.
Inner City
Press was there, one of only four people in the courtroom
gallery (the other three were court staff) and live
tweeted, here
and below followed by an extra:
OK - now in Taibbi v.
Higgins, oral argument on motion to dismiss. Defense
lawyer Elizabeth McNamara: They must show the defendants
knew or should have known what they reported was false.
They can't. Inner City Press, banned from UN, will live
tweet, thread below
McNamara: This comes
down to a political fight.
Judge Daniels: The definition of "bought" is that someone
has paid someone for something. And owned means not making
independent judgments but based on the compensation they
receive
McNamara: That's one definition
Judge Daniels: It's
right on the cover. In what way was he bought?
McNamara: He highlighted 1st the Hunter Biden situation.
Bought means being a sell-out, classic opinion. The flaw
in their case is this is an implication of the cover.
There's no implication count
McNamara: Your Honor's
Conde Nast decision a few months ago said "the implication
count cannot stand." That's true here as well.
Judge Daniels: In what way in Mr. Higgins alleging that
Mr. Taibbi cashed in?
McNamara: That sentence
was not literal, as in money
McNamara: It was a
conditional arrangement. [Her colleague brings laptop over
to her] Footnote 4 of our brief, In his note to readers,
reference to "certain conditions."
Judge Daniel: Where is that?
McNamara: Even
Greenwell [sic] said it was a bridge too far.
Judge Daniels: What does Higgins claim was done pursuant
to this agreement?
McNamara: For four months he was roundly criticized by
many, applauded on FOX, that is the point: this is a
political argument
McNamara: If 86% of his
Substack subscribers were from before, that means 14% came
after, he's made millions from his Substract [sic]. He
says there was a dip in the second or third month. Mr
Higgins tried to interview him twice and was
rejected
McNamara: There is a
lack of actual malice here. He does not cite a single fact
about Mr. Higgins or Hachette that either knew it was
false or had serious doubts. I cite Satanic Temple v
Newsweek, and First Amendment Praetorian v NYT
Judge: Mr. Garson? Use
the mic if you want.
Robert Garson: I'm a small man with a big voice, I had to
develop it. It's been a decade since I've been before your
Honor. Here, it's as if Higgins and Hachette raise the
cannons of war but their cannons have no balls
Garson: Imagine a cover
that said, The Tech Billionaires of the Right Bought the
Judges of SDNY - imagine that. I'm sure they'll saw
patronage doesn't mean patronage. Read this: The cronies
now beneficiaries of Silicon Valley largesse. I had to
look up 4th Estate
Garson: He markets
himself as a journalist and *historian." I actually read
this book. It really isn't that good. There is no
following the money. The promise of the front coverage did
not deliver.
Judge Daniels: What was promised on the front cover?
Garson: If someone says
owned, I was expect evidence.
Judge: Owned is not a factual allegation. Would anyone
come to the conclusion that money passed hands?
Garson: Potentially. Look at my amended complaint. Page
18, paragraph 68 [below]
Judge Daniels: What are
you alleging in the content of the book is a defamatory
statement, other than the cover?
Garson: The cover in and of itself is defamatory. Also,
page 9, "cashed in."
[Judge Daniels picks up the book - he has a copy up on the
bench]
Garson: And page 186,
"windfall."
Judge Daniels: The two sides are giving different
definitions. The defense says these are not factual
allegations of being bribed-
Garson: Being bought. Look at it holistically. They're
asking you to go down a dark hole.
Judge Daniels: If I say
to you, I think you're a thief, is that defamatory?
Garson: If you say, I'm a thief.
Judge: What is someone asks me, what do you think of him?
And I saw, he's a thief?
Garson: What if I say, you Judge George Daniels are
corrupt?
Judge Daniels: If I
say, he was in an alley & met Elon Musk - it can be
defamatory. If I say, he's a thief, I don't trust him, I
don't think it can be proved or disproved.
Garson (reading from a tablet or enormous phone) We are
entitled to discovery, on "windfall"
Judge Daniels: I saw,
He's a crony, read my book and you'll see. And there's
nothing there. Is it defamatory?
Garson: He says, I was approached by Hachette to write
this book. What book was he approached to write?
Judge: It's got to be defamatory as it is stated.
Garson: Greenwald is
not part of this case. Hachette, they still chose the
title. They say windfall and cash in but they don't have
evidence. He actually loses money as an independent
journalist on this so-called sell-out. He was
deamplified
Garson: Taibbi twice
refused money
Judge Daniels: It's not their duty to defend Taibbi. If I
say, he's a thief. Someone asks, What proof do you have
and I say, I don't have any. It's just derogatory, not
defamatory.
Garson: There is defamation per se
Judge Daniels: If I
say, he is not an independent journalist - you can't show
that's defamatory.
Garson: If I saw, I'll follow the money and then I publish
a book
Judge Daniels: But if the book backs away from the claim,
I'm not sure that helps your argument
Garson: A man on the
street says Judge Daniels is corrupt, that's one thing.
But if another judge says it...
Daniels: I'm not sure. Everyday the President says things
about journalists and judges. I'm not sure it's all
defamatory.
Judge Daniels: What's
the most defamatory statement you've got?
Garson: The cover. Bought. Owned. Cashing in. That he says
he will follow the money and name names.
Judge: It's
hyperbole.
Judge Daniels: If I
saw, Mr. Garson is bought by the plaintiffs' bar, is that
defamatory?
Garson: If someone says, that judge is bought by the
Mafia, it's defamatory
Judge: I'm not so sure. Why did they write the book?
Garson: To make money
Judge: Exactly (laughs)
Garson: Pardon the pun,
but it's a hatchet job, a Hachette job - this is unique. I
acknowledge that a headline and an article can differ
Judge: You're not complaining about the content of the
book.
Garson: Inside cover. An article you can see right away. A
book?
McNamara: Meanings are
developed through context. New York has a heightened
standard. You had a case about Michael Lewis' book, you
found that "moron" was opinion and not actionable. You
were affirmed by the 2d Circuit. Here, the plaintiff does
not like the cover
Judge Daniels: OK, I
will get back to you [Inner City Press will be on alert
for his ruling and report it]
Extra / analysis on X
for Subscribers here
and Substack
here
The case is Taibbi v. Higgins, et al.,
1:25-cv-9511 (Daniels)
