from the fbi-slapps dept

There are defamation lawsuits designed to win, and then there are defamation lawsuits designed to generate headlines for your fans on social media, punish journalists, and maybe — if you’re lucky — force a settlement or intimidate future reporting. FBI Director Kash Patel’s brand new defamation lawsuit against The Atlantic is very obviously the second kind.

On Friday, The Atlantic published a truly devastating profile of Patel, reporting that “more than two dozen” current and former officials described a director who shows up to Ned’s in DC and the Poodle Room in Las Vegas to drink until he is visibly drunk, and who has been difficult to wake on occasions when his security detail needed him. There’s also this fun anecdote in the opening, talking about a time, earlier this month, when Patel had trouble logging into his computer:

He quickly became convinced that he had been locked out, and he panicked, frantically calling aides and allies to announce that he had been fired by the White House, according to nine people familiar with his outreach. Two of these people described his behavior as a “freak-out.”

That’s just kinda amusing, but there are a lot more serious concerns, such as the fact that the nation’s top cop is (according to the article): “often away or unreachable, delaying time-sensitive decisions needed to advance investigations.”

The article included a response from Patel, attributed to him by the FBI: “Print it, all false, I’ll see you in court — bring your checkbook.”

On Monday, represented by MAGA-world’s go-to lawyer Jesse Binnall, Patel did exactly that, filing a 19-page complaint in federal court in DC seeking $250 million in damages.

The complaint is, to put it charitably, not great. To put it less charitably, it reads like a press release with a case caption stapled to the top.

Let’s start with the central legal problem, because it’s kinda fatal. Patel is indisputably a public official — he runs the FBI — which means under New York Times v. Sullivan, he has to plead and eventually prove that The Atlantic published with “actual malice,” meaning with knowledge that the statements were false, or with reckless disregard for their truth or falsity — a legal term of art that requires showing the publisher actually suspected the statements were false and deliberately avoided finding out, not merely that they moved quickly or relied on anonymous sources. This is a very high bar. It’s been a high bar since 1964. Every lawyer who files a defamation case for a public figure is supposed to know that this is the hill they have to climb.

Here is how the complaint attempts to plead actual malice:

Defendants’ conscious decision to ignore the detailed, specific, and substantive refutations in the Pre-Publication Letter, and their refusal to give a reasonable amount of time for the FBI and Director Patel to respond, is among the strongest possible evidence of actual malice.

In other words: Patel denied it, The Atlantic published anyway, therefore actual malice. There is no real attempt to plead actual malice beyond that.

That’s not actual malice. That’s just how journalism works. Every news story that anyone has ever complained about in history has been published after the subject denied it. If “the subject denied it and you published anyway” were sufficient to establish actual malice, the First Amendment would be a dead letter and every investigative story ever written would generate a winning lawsuit.

Yes, those filing SLAPP lawsuits often claim that their subjects’ denials constitute actual malice — but that’s not how it works in court, and it never has been.

And we know this argument doesn’t work because we just watched a judge throw out Donald Trump’s $10 billion defamation suit against the Wall Street Journal for making essentially this exact argument. That was all of a week ago. A public figure’s denial, followed by publication, is not actual malice. A court said that a week ago. This is well-known, settled law. Binnall surely knows this. Patel’s filing this suit anyway.

The complaint does gesture weakly at some other theories — that the anonymous sources were “partisans with axes to grind,” that The Atlantic imposed a two-hour comment deadline, that there was “editorial animus” evidenced by prior Atlantic coverage. But even stacked together, these don’t get you to actual malice. Relying on anonymous sources isn’t reckless disregard—it’s how journalism works. Short deadlines for comment aren’t evidence of malice either; they’re standard operating procedure for breaking news. Prior negative coverage doesn’t even come close to the legal standard, since public figures doing controversial things tend to get criticized.

There’s also the fact that the complaint tries to twist statements by anonymous sources which the Atlantic reported on as The Atlantic’s own speech. Almost every one of the 19 allegedly defamatory statements enumerated in paragraph 18 is, on the face of the article, attributed to anonymous sources. For example, count 18(e) claims that a request for ‘breaching equipment’ — “normally used by SWAT and hostage-rescue teams to quickly gain entry into buildings” — was made because Patel was unreachable. The complaint states:

Fitzpatrick knows that her anonymous sources, unwilling to go on the record, are partisans with axes to grind and are not in a position to know the facts.

“Partisans with axes to grind” is not relevant to the actual malice standard. And, come on. Anonymous sources not willing to go on the record accusing a man who runs the FBI and is famously vindictive toward his perceived enemies… is not exactly a shocking revelation.

Almost all of the claims are like this. “According to multiple people familiar with the request.” “According to information supplied to Justice Department and White House officials.” “According to the more than two dozen people I interviewed.”

The Atlantic’s defense (if it even gets that far) is therefore not going to need to be “we can prove Kash Patel was drunk at Ned’s.” It’s going to be “multiple credible sources told us this, we reported what they said along with corroborating evidence, and we have our notes, emails, and recordings to prove that’s what they told us.” That’s a fundamentally different — and far easier — thing to defend. Publishers aren’t required to prove the absolute truth of everything their sources say. They’re required to not publish with reckless disregard for the truth, which requires evidence about what the publisher knew or suspected, not what turned out to be the ultimate truth of the matter.

The Atlantic had multiple sources for each of its claims. It has corroborating evidence to support the claims. That is not a situation that says actual malice. It’s a situation that says “we did careful reporting.”

The complaint doesn’t grapple with this distinction at all. It just keeps repeating that the FBI told The Atlantic the claims were false before publication, as if that’s the end of the story. It isn’t. Subjects of investigative reporting deny things all the time. Publishers weigh denials against their sources and decide whether to publish based on all of the evidence they’ve collected. The First Amendment protects that decision-making process precisely so that powerful officials can’t just deny critical stories into non-existence.

In theory, there’s also the issue of discovery. Whenever cases like this get filed, people on social media say things like “can’t wait for discovery.” But cases like this rarely even get to the discovery stage. The Atlantic will almost certainly file for a motion to dismiss, which almost always happens pre-discovery, and a failure to competently plead actual malice is a good reason for the case to be tossed at that stage, without any discovery.

But also, given that Patel was famously seen on video chugging a beer at the Olympics in the Men’s Hockey locker room, it seems like Patel himself might not be all that interested in discovery either.

Of course, the goal was never to win. The goal was to file. And, sure some people will point to Trump’s settlements with news orgs, but those were to the president himself, and quite clearly designed to curry favor. As powerful as the FBI director is, it’s doubtful that the Atlantic is looking to curry favor with the FBI director via a settlement.

And that brings us to the other tell: the Streisand Effect. The complaint itself complains how much attention the article — again talking about how various officials in the FBI were concerned about situations where the FBI director appeared to be blackout drunk — got some attention on the internet.

The Article was widely disseminated on the internet, through AMG’s magazine and associated platforms, and was foreseeably republished, summarized, and discussed throughout national and international media.

Ya think?

Patel’s response to this alleged injury was to file a $250 million lawsuit — an action guaranteed to drive far more traffic to the very article he says is destroying his reputation. Every news outlet that covers the lawsuit links to or summarizes the original piece. Every social media post about the suit reintroduces the allegations to people who had never seen them. If your complaint is that too many people read the story, filing a splashy nine-figure lawsuit is a strange way to handle it.

None of this is an accident or a rookie mistake. This is how Binnall — and his predecessor in this particular niche, Steven Biss — have always done it.

Long-time Techdirt readers may recall that we first covered Kash Patel filing a SLAPP suit all the way back in 2019, when he was a White House staffer and former Devin Nunes aide. He used Steven Biss — Nunes’s own go-to lawyer for suing critics, satirical Twitter cows, and journalists — to sue Politico over accurate reporting about Fiona Hill’s congressional testimony. That complaint, like this one, read more like a press release than a pleading, opening with a tirade about “weaponized media” and “partisan hacks and character assassins who work to advance the interests and agendas of dark money.”

Biss specialized in filing SLAPP suits for MAGA figures. Most of them lost. He filed so many of them that when he had a stroke in 2023, his law license was eventually suspended on impairment grounds, and a bunch of his cases had to be handed off to someone else. That someone else was mostly Jesse Binnall, who promptly continued the losing streak. The Flynn family’s SLAPP suit against CNN? Tossed. Patel’s own 2024 threat letter to MSNBC commentator Olivia Troye? Answered with a Monty Python reference.

Filing is the point. Winning is beside it. These suits generate favorable headlines in friendly media, signal aggression to critics, raise the cost of covering the subject, and — if everything goes perfectly — get a defendant to settle just to make the expense go away. Whether they actually prevail on the merits is beside the point for the filer. Binnall has built a practice around this model. Patel has used that practice repeatedly across multiple roles over the last few years.

This is a textbook SLAPP, and it’s a good reminder of why we need anti-SLAPP laws to begin with.

Which brings us to a frustrating final wrinkle: the case was filed in federal court in DC, and while DC has an anti-SLAPP statute, the DC Circuit ruled a decade ago that it doesn’t apply in federal court. On top of that, the DC Court of Appeals more recently invalidated part of the law’s fee-shifting provisions. So even though DC ostensibly has protections against exactly this kind of lawsuit, The Atlantic basically can’t use them here. This is a pattern repeated across the country — patchwork state laws, some strong, some weak, many with large loopholes, and many federal circuits have barred their use in federal courts.

This is why we need a federal anti-SLAPP law, and why we need strong anti-SLAPP laws in every state and territory. The people who file these lawsuits know exactly which jurisdictions lack them, and they file accordingly. The asymmetry — where the cost of filing a meritless suit is minimal for the plaintiff, while the cost of defending it is substantial for the defendant — is exactly what makes the SLAPP tactic work. Anti-SLAPP laws with robust fee-shifting flip that equation, making bad-faith plaintiffs think twice.

Absent that, we’re left with the situation we have now: the head of the nation’s federal law enforcement agency uses a $250 million defamation suit as a political messaging tool, filed by a lawyer whose track record of losing these cases is long and detailed. The Atlantic will likely win on a motion to dismiss. Patel will get his headlines. And a lot more people will have read about Kash Patel’s alleged drinking habits than ever would have otherwise.

For the supposed “free speech party,” filing vexatious SLAPP suits against investigative reporters has become a rite of passage — a way of making clear there’s a price for making the people in power look bad.

Filed Under: actual malice, anti-slapp, defamation, drunk, fbi, free speech, jesse binnall, kash patel, slapp

Companies: the atlantic