Earlier this week, NewsBusters was the first to report that the defamation suit against CNN could cost the network upwards of $1 billion. The possible cumulative damages were able to be that high because a Florida appeals court affirmed that plaintiff, security contractor, and Navy veteran Zachary Young was able to prove malice on behalf of CNN. And what few have seen, was the video from inside the oral arguments leading up to that ruling where two judges grilled CNN’s lawyer on their use of the term “black market” and if the network’s oversight board owned dictionaries.

At the top of his statement in oral argument, CNN’s counsel Charles D. Tobin seemingly tried to suggest that CNN’s negative attitude toward Young was warranted because he wouldn’t answer their questions regarding his efforts to get corporately sponsored Afghans out of the country, Judge L. Clayton Roberts interrupted and made the point, “that we with regard to the allegations that CNN called – said Mr. Young's prices were too high. That's kind of a subjective thing, right? You know whether something costs too much, it seems like mostly opinion. Right?”

 

 

Tobin agreed and Roberts went on to question him about CNN’s use of the term “black market” (both in spoken word The Lead host Jake Tapper and the on-screen chyron). The Judge pressed Tobin on the dictionary definition:

[W]hen they were talking about Mr. Young, they had his picture on the thing and there was a chyron that says he was involved in a black market. And, you know, I've looked in a couple of dictionaries –  three or four – and the first definition for black market in all the dictionaries is criminal activity. And you know, if you are accusing someone of criminal activity and they're not involved in a crime, that's usually defamation per se. Correct?

In response, Tobin seemingly admitted that what CNN reported could be seen as defamatory: “Under the law where we would be looking at the defamatory meaning, perhaps it would be.”

He then argued that the definition didn’t matter. “Here, we're on a question of actual malice, express malice, and outrageous conduct measured by objective standards. Under that criteria, your honor, regardless of what the meaning may be in the dictionary, which is an objective definition,” he said.

Roberts then questioned Tobin on CNN’s internally lauded oversight committee known as “Triad.” He wondered if their team of editorial and legal professionals had dictionaries and/or knew what the words they used meant:

ROBERTS: Tell me how the Triad works.

TOBIN: The Triad, your honor, is a group of three different departments at CNN. It's the Standards and Practices Department, it's the Legal Department, and it's the Editorial Department, they come together and –

ROBERTS: So, these are lawyers and professional writers that, you know, are used to dealing with words and have dictionaries and know how precise – what words mean?

TOBIN: One would presume, your honor, that they're educated people that they've been in the business for a while. But your honor, there is nothing in the record discussing the word “blackmail” [sic] at all among any of the CNN journalists. And it is plaintiff's burden.

At one point, Tobin appeared to admit that CNN was reporting on Young without all the facts about what he was doing. “[T]here is no evidence in the record that CNN, for example, knew the promises were being fulfilled or that there was a demand, there was not a demand for exorbitant fees,” he told the court.

Judge Thomas D. Winokur stepped in and pointed out that “none of those things describe what could be commonly referred to as ‘black market.’ I see Judge Roberts's point that ‘black market’ clearly implies dictionary definition or otherwise, an illegal exchange of goods.” To which, Tobin conceded was “at least” a “poor choice of words” by CNN.

On the question of CNN’s internal e-mails where CNN employees called Young “a shit bag,” talked about how they were going to “nail” him, and discussed how the story was going to be his “funeral,” Roberts wondered if that was “at least some evidence of malice?” Tobin asserted “It's actually the opposite.”

Later in the hearing, Young’s counsel, Vel Freedman directly confronted the notion of “black market” having multiple meanings. “I would add that the ‘black market’ has one definition in every dictionary, not just the first but one in every dictionary we've looked at,” he said. 

Adding: “And CNN has failed to put forward any dictionary with an alternative definition. It means illegal activity, full stop. And that's what the case law that we've to the court as well treats it: illegal activity.”

Appearing to play Devil’s advocate, Roberts noted that Tobin’s suggestion was that the network used the word “in a more colloquial sense.”

“So, what CNN is claiming is they took a word from the English language that has one definition and they meant when they said ‘black market,’ they actually meant ‘grey market,’ but they said ‘black market’ that has one definition,” Freedman countered. “CNN can't get up there and say, ‘Hey, Mr. Young is a serial killer,’ but actually mean that he was a good Samaritan, but they only knew that in their head.”

Noting that the court was operating as a “gatekeeping function” to “ensure proper claims” met a jury, Freedman boiled down why a jury should eventually hear the case: “And to say that when somebody uses a word, that means what it means is not a sufficient showing, then I don't know what should reach the jury for punitive damages claims.”

In a statement to NewsBusters, Freedman said: "CNN claims to be the “most trusted name in news,” but their internal documents show that the only thing you can “trust” CNN to do, is ignore the facts, push an agenda, and hurt innocent people. We’re looking forward to trial."

CNN did not respond to NewsBusters' multiple requests for comment.

The transcript is below. Click "expand" to read:

First District Court of Appeals – State of Florida
April 9, 2024
00:16 – 05:29 timestamps

(…)

CHARLES D. TOBIN: Your honor. Plaintiff sued CNN for defamation concerning news coverage about profiteering in the chaotic days after the United States government withdrew their troops from Afghanistan. The record before this court shows that CNN and – CNN aired these newsworthy stories after more than two weeks reviewing information from sources including social media posts by Mr. Young where he was flippant, evasive when people asked him about his pricing model. After eight days of direct evasive communications with Mr. Young where CNN asked him about his pricing model, and he would not respond in any substance.

JUDGE L. CLAYTON ROBERTS: Well, it seems to me that we with regard to the allegations that CNN called – said Mr. Young's prices were too high. That's kind of a subjective thing, right? You know whether something costs too much, it seems like mostly opinion. Right?

TOBIN: It is an opinion, your honor. An opinion is not actionable.

ROBERTS: So, the thing in this particular case that does seem a little more actionable was the fact that, you know, when they were talking about Mr. Young, they had his picture on the thing and there was a chyron that says he was involved in a black market. And, you know, I've looked in a couple of dictionaries –  three or four – and the first definition for black market in all the dictionaries is criminal activity.

And you know, if you are accusing someone of criminal activity and they're not involved in a crime, that's usually defamation per se. Correct?

TOBIN: Under the law where we would be looking at the defamatory meaning, perhaps it would be. Here, we're on a question of actual malice, express malice, and outrageous conduct measured by objective standards. Under that criteria, your honor, regardless of what the meaning may be in the dictionary, which is an objective definition. What plaintiff needed to show is that subjectively CNN intended that meaning otherwise there is no facts in the record to give rise to a reasonable jury question about actual –

ROBERTS: Tell me how the triad works.

TOBIN: The triad, your honor, is a group of three different departments at CNN. It's the Standards and Practices Department, it's the Legal Department, and it's the Editorial Department, they come together and –

ROBERTS: So, these are lawyers and professional writers that, you know, are used to dealing with words and have dictionaries and know how precise – what words mean?

TOBIN: One would presume, your honor, that they're educated people that they've been in the business for a while. But your honor, there is nothing in the record discussing the word “blackmail” [sic] at all among any of the CNN journalists. And it is plaintiff's burden.

ROBERTS: Well, black market is the word that was used in the chyron. Right?

TOBIN: Actually, your honor, the words used in the in the chyron and said by Jake Tapper when he introduced the story was, “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantees of safety or success.” And so in context, we maintain that it is clear on the face what CNN meant by black market, which is defined within the phrase itself, a market full of promises, demands of exorbitant fees, and no guarantees of safety of success.

And there is no dispute, there is no evidence in the record that CNN, for example, knew the promises were being fulfilled or that there was a demand, there was not a demand for exorbitant fees. We just discussed that that's an opinion, your honor, no guarantee of safety or success, the issue on punitive —

JUDGE THOMAS D. WINOKUR: I hate to keep harping on this, but none of those things describe what could be commonly referred to as “black market.” I see Judge Roberts's point that “black market” clearly implies dictionary definition or otherwise, an illegal exchange of goods.

TOBIN: Your honor.

WINOKUR: That has nothing to do with those other descriptions in the chyron.

TOBIN: If it was a poor choice of words, your honor, and at best, we argue that it was at best a poor choice of words, your honor. That may have an impact on the rest of this case below under negligent standard, actual malice. I mean, whatever standard the trial judge decides to apply. Here, in the punitive damages context, the burden was the plaintiffs in the court below to show that that is the meaning that they intended. It is not implied, it is not assumed by the court. It is based on record evidence under 768.72 of the intention for that meaning.

ROBERTS: So what, what are we to make of the internal emails that were, were brought into the record where they called Mr. Young a shit bag? They said that they were gonna nail the Zachary Young and ever, said he had a punchable face, said he was an asshole and said it was his funeral, bucko. What, what do we make of those?

TOBIN: Your honor.

ROBERTS: Is that at least some evidence of malice?

TOBIN: It's actually the opposite, your honor. It's evidence that the CNN journalists as they were taking information in, as information was coming in from different sources, sincerely believed that Mr. Young was engaging in exploitive and shady practices.

(…)

11:06 – 11:46 timestamps

ROBERTS: But there were no other individuals that were highlighted as providing these overpriced black market activities?

TOBIN: That's correct your honor. I merely pointed out to discuss what CNN's – what the record reflects as to CNN’s motive and it does not reflect the primary motive to do this story to call Mr. Young anything other than somebody engaged in activities in a chaotic environment in Afghanistan, which was a matter not only of public interest but the U..S government's interest, the nongovernmental organization's interest, and the interest of all Americans who were trying to sort out the U.Ss government's conduct in withdrawing the troops from Afghanistan.

(…)

13:51 – 15:55 timestamp

ROBERTS: Don't you agree that whether Mr. Young's prices were reasonable under the circumstances is kind of just a matter of opinion?

VEL FREEDMAN: I don't think the reasonableness of his prices are being sued over. I think there are two bases that are the general – that are the bases for the defamation lawsuit. The first is, as the court has noted as Judge Roberts, as you noted is the “black market” definition. And judge, I would add that the “black market” has one definition in every dictionary, not just the first but one in every dictionary we've looked at. And CNN has failed to put forward any dictionary with an alternative definition. It means illegal activity, full stop. And that's what the case law that we've to the court as well treats it: illegal activity.

So, that's one basis. The second basis isn't about the amount of money he was charging, it's that he charged.

ROBERTS: But do we need to look at their intent? Because, opposing counsel's argument was that they were using it in a more colloquial sense. They weren't saying this man's committing a crime. They're saying this man's doing something shady.

FREEDMAN: So Judge, I think it is absurd in its face to say that they are using the word “black market” that has but one definition in the English language in a way that it wasn't intended to be used. So, what CNN is claiming is they took a word from the English language that has one definition and they meant when they said “black market,” they actually meant “grey market,” but they said “black market” that has one definition.

CNN can't get up there and say, “Hey, Mr. Young is a serial killer,” but actually mean that he was a good Samaritan, but they only knew that in their head. And you know what Judge, if they did, Fine. Let them argue that to the jury. At this stage, as the court was focusing on appropriately before, we need to show a reasonable showing that a reasonable basis for punitive damages exists. Will a jury buy that argument that they meant something else when they said black market? I don't think so, but this court is only serving in a gatekeeping function at this point to ensure that proper claims of punitive damages reach the jury.

And to say that when somebody uses a word, that means what it means is not a sufficient showing, then I don't know what should reach the jury for punitive damages claims.

(…)