Some Thoughts on the Avenatti v. Fox News Libel Lawsuit
Michael Avenatti sued Fox News and various Fox News personalities Thursday for libel, stemming from Fox’s coverage of Avenatti’s Nov. 2018 arrest for domestic violence. Much of the Complaint consists of general condemnations of Fox News, but on p. 23 the Complaint finally comes to the particular allegations about how Fox had supposedly defamed Avenatti in particular. (Ken White [Popehat] has more.) Here are some quick thoughts on why the lawsuit is likely going nowhere.
[1.] Substantial truth: The problem Avenatti is facing is that he was indeed (according to the LAPD) arrested, so Fox News is entitled to report on this arrest, booked, and released on bail. A week later the woman involved (Mareli Miniutti) got a restraining order against Avenatti, based in part on allegations of violence, so that suggests that there was at least reason to believe that Avenatti was more likely than not guilty. (The standard of proof required for a restraining order is preponderance of the evidence; for arrest, it is probable cause.) But in any event, Fox News was entitled to report on the arrest even if the allegations leading to the arrest had proved unfounded.
Avenatti’s points out that some of the Fox News accounts (a) said he was arrested for violence against “his estranged wife” (Miniutti was a girlfriend), ¶ 105, (b) said that he had been not only arrested, but also “charged” (prosecutors ultimately declined to charge him), ¶ 78, (c) said that “her face was swollen and bruised,” ¶¶ 81, 105, and (d) said that Avenatti had shouted at the time, “She hit me first!,” ¶ 105.
But modern libel law embraces the “substantial truth” doctrine, under which “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.'” If the statement with the errors corrected would still carry the same reputation-injuring message, the errors aren’t treated as defamatory: “The substantial truth test involves consideration of whether the alleged defamatory statement was more damaging to the plaintiff’s reputation in the mind of the average listener than a truthful statement would have been.” The error in identifying the alleged victim, for instance, would pretty clearly count as insubstantial.
I think the references to “charges” is likewise nondefamatory. First, simply saying that he was “arrested in L.A.; charged with assault” is a fair summary of the arrest; it’s common to say that someone was “arrested on charges of …” even when no charges in the sense of an indictment or criminal complaint was filed. But even the statements that erroneously said the D.A.’s office was involved are likely don’t change the gist of the allegation. The average viewer is likely to treat an arrest for domestic violence as roughly comparable in its sting to a prosecution for domestic violence. (Both, after all, require just probable cause, and don’t involve a jury finding or proof beyond a
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