Black Lives Matter activist DeRay Mckesson’s libel lawsuit against Fox News and Jeanine Pirro was dismissed this week.
In a March 25 ruling from the Supreme Court of the State of New York sent to iMediaEthics by Fox News, Judge Robert David Kalish granted Fox News and Pirro’s motion to dismiss and ruled her comments were protected opinion. A Fox News spokesperson referred to the decision.
Mckesson sued in Dec. 2017 over her September comments on Fox and Friends claiming Mckesson “was directing people, was directing the violence” in 2016 Baton Rouge protests after the death of Alton Sterling, as iMediaEthics reported. Pirro claimed a police officer “was injured at the direction of” Mckesson.
Fox News stood by Pirro’s comments saying they believed “our commentary was fully protected under the First Amendment and the privilege for reports of judicial proceedings.”
The judge’s March 25, 2019 ruling explained Pirro was referring to a Baton Rouge police officer’s lawsuit against Mckesson and Black Lives Matter after he was injured during the 2016 protests. The officer, who used a pseudonym in the lawsuit, claimed that Mckesson “was in charge of the protests and he was seen and heard giving orders throughout.” That officer’s lawsuit was dismissed. Separately, Mckesson filed a class action lawsuit against the city of Baton Rouge after being arrested in a protest and received a settlement.
Fox News and Pirro filed a motion to dismiss saying that her comments were a “fair and true report” of a judicial proceeding, that there was no proof of actual malice, and that the comments weren’t defamatory. Specifically, Fox News and Pirro claimed her comments that Mckesson “directed” the violence and police officer injury weren’t actual malice and were opinion.
In context the judge found that Pirro’s comments “qualify as a substantially accurate report of a judicial proceeding for purposes of Civil Rights Law § 74, and therefore are absolutely privileged from liability for defamation.”
Why? Because Pirro said the police officer made the claim in her first reference to the direction claims. “While a source attribution for the second allegedly defamatory statement that the plaintiff-officer ‘was injured at the direction of Deray Mckesson’ is not within that particular sentence, the reasonable viewer, viewing the segment as a whole, would recall the prior source attribution and understand that this was an allegation made by the plaintiff-officer.
“That the Court finds Pirro’s statements to be protected statements of opinion does not mean this Court agrees with Pirro’s opinions or condones her behavior or rhetoric,” the ruling notes. “This Court is not blind to the undertones present in this segment. Certainly one might ask why the segment chose only to present a photograph of Judge Jackson, who is black, and not a photograph of Judge deGavrelles – who is white and oversaw the Class Action where, according to Pirro, Mckesson ‘walked away with $100,000 for an organization that is amorphous.'”
The ruling noted that Pirro “misstates several facts” in saying Mckesson “walks away with $100,000” because it is an incorrect figure and Mckesson didn’t personally “walk away” with the money; however, the ruling said it was “substantially accurate” in context.
Earlier this month, Fox News condemned Pirro’s comments about Rep. Ilhan Omar (D-MN). On Pirro’s March 9 show, she asked if Omar’s wearing a hijab as “indicative of her adherence to sharia law which in itself is antithetical to the United States Constitution.” Fox News quietly suspended Pirro, neither confirming nor denying she was suspended but pulling her from the air.
UPDATE: 11:07 AM