Loose lips sink ships and apparently CNN’s loose relationship with the truth could sink the Cable News Network. In a truly scathing concurring opinion published Thursday breathing new life into Project Veritas’ defamation case against the liberal news network, Judge Ed Carnes with the 11th Circuit U.S. Court of Appeals called out CNN for “downplaying the importance of telling the truth in its broadcasts” and used CNN’s own employees to do it.

The case involves CNN lying about what got right-wing investigative journalism organization Project Veritas kicked off of then-Twitter. CNN falsely claimed they were banned from the platform (before Elon Musk bought it) for spreading misinformation when, in reality, they were banned for posting someone’s address; in violation of Twitter’s rules.

Those are two very different reasons, but as Judge Carnes pointed out from CNN’s filing, CNN calls that an “immaterial detail” of the story.

In the opening paragraph of his concurring opinion, Judge Carnes seemed disgusted with CNN and ruling that the case should proceed (bold added to highlight):

If you stay on the bench long enough, you see a lot of things. Still, I never thought I’d see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case. Through its lawyers CNN has urged this Court to adopt the position that under the law it is no worse for a news organization to spread or promote misinformation than it is to truthfully disclose a person’s address in a broadcast.

The Judge explained that while he fully agreed with his fellow judges on the panel, he wanted to specifically confront CNN’s false interpretation of “actual malice.” “I write separately to explain why falsely reporting that Project Veritas had been suspended from a broadcast platform for spreading or promoting misinformation satisfies any reputational harm requirement of actual malice,” he said.

For the next several paragraphs, Judge Carnes explained how CNN had been contorting themselves to argue in a court of law that “there is not” a difference in between the truth and their lie about why Project Veritas was kicked off of Twitter:

In its district court brief in support of the motion to dismiss the defamation claim against it, CNN recounted Project Veritas’ contention that there is “sufficient difference between getting kicked off [Twitter] for posting misinformation and getting kicked off for posting prohibited information to support a defamation claim by a public figure.” Doc. 20-1 at 1–2. To which CNN curtly responded: “There is not.” Id. at 2. But there is.  

In that same brief, CNN quotes from a Supreme Court opinion the statement that the law of libel “overlooks minor inaccuracies and concentrates upon substantial truth.” Id. at 13 (quoting Masson v. New Yorker Mag., Inc., 501 U.S. 496, 516 (1991)). But, of course, the “minor inaccuracy” the Court was hypothesizing about in the Masson case was not a false statement, like the one here, that a news organization had been banned from a platform for using it to spread misinformation. CNN insists that the fact Project Veritas had been banned from Twitter for disclosing truthful private information (a house number or address) instead of for spreading misinformation in its broadcasts, is merely “an immaterial detail,” or “at most, a foot fault.” Doc. 20-1 at 20. But the truth is never an immaterial detail when accusing another of misconduct, and the boundary line between truth and falsehood that CNN allegedly stepped over is more important than any line in the game of tennis.

Interestingly, Judge Carnes included an interaction the panel had with CNN’s lawyer, who was asked, “If [CNN itself ] had to choose between being branded as someone who revealed high profile people’s house numbers or being branded as an organization that spread lies, which would it choose?”

The lawyer apparently tried to “duck the question” before saying, “‘I will choose we don’t want to be called sources of misinformation,’ but he added ‘the difference is modest.’” 

“The difference is ‘modest’ only for those who don’t value the truth as a first principle of broadcasting,” Judge Carnes declared.

As he was nearing the end of his opinion, Judge Carnes used CNN’s own employees against it; citing quotes about the importance of journalists being truthful from the likes of CEOs Mark Thompson and Chris Licht, hosts like Brooke Baldwun and Kate Bolduan, and fact-checker Daniel Dale:

“The world needs the truth now more than ever. It needs honest reporting. It needs journalists it knows and trusts.” CNN Chairman and CEO Mark Thompson.

“I think we can be a beacon in regaining that trust by being an organization that exemplifies the best characteristics of journalism: fearlessly speaking truth to power . . . . First and foremost, we should, and we will be advocates for the truth.” Former CNN CEO Chris Licht.

“The principle is important . . . . I think as journalists it’s incumbent upon us to stand up for truth, really no matter how many millions of people do or do not believe us at any given time.” CNN Fact-Checker Daniel Dale.4  

(...)

“We need the facts. We are here to report the truth.” Brooke Baldwin.

(...)

“Without it, what are we left with?” Kate Bolduan.8

“False claims that a news organization spread or promoted misinformation strike at the heart of its reputation and necessarily damage its effectiveness. If actual malice does include a requirement for reputational harm, CNN’s on-air statements about Project Veritas meet that requirement,” Judge Carnes concluded.

Between the defamation suit brought by Navy veteran Zachary Young and now this one, things are not looking good for CNN. And quite possibly there could be a chance to set a new legal precedent to hold the media accountable.