Plaintiff Kristen Meghan Kelly is suing the online news site The Daily Beast Company LLC and its contributor Larrison Campbell, alleging injury caused by an article about Kelly written by Campbell . The other defendant is the American Industrial Hygiene Association (“AIHA”)….
According to Kelly’s complaint, she is a “senior industrial hygienist” with more than 19 years of experience “developing, analyzing and implementing workplace health and safety protocols.” She “testified before legislative committees, appeared in documentaries, … and acted nationally as a consultant on workplace health and safety issues.” Among other things, she opposed “mandatory face masks,” government and private sector requirements Wearing a face mask as a means of mitigating the spread of COVID-19. In April 2021, she attended a school board meeting in Hudsonville, Michigan, where she voiced her opposition to wearing masks. She made videos of her attendance and posted them online.
Kelly’s video caught the attention of Campbell, who contacted Kelly to discuss the matter with her. The Daily Beast later ran Campbell’s article on Kelly under the headline, “Michigan anti-mask ‘scientists’ spark fourth wave.”
Kelly sued for defamation, but the court dismissed the charges against The Daily Beast and Campbell. (It concluded that AIHA did not adequately move the dismissal). The following is the core of the analysis that impressed me:
[None of the allegedly libelous] Statements/claims give rise to defamation claims against defendants.
[1] Kelly opposed wearing masks. The headline of the article called Kelly an “anti-mask” Michigan scientist. In context, this is not a false statement of fact. “Anti-mask” is just shorthand for Kelly’s opposition to the mask mandate. In fact, Kelly made a similar assertion to The Daily Beast, saying it had a “pro-mask, pro-vaccine agenda.”
[2] Kelly is riding a fourth wave of COVID. The assertion cannot be proven false. Rhetorical hyperbole is not the basis for a defamation suit against the defendant.
[3] Kelly is not a scientist. This assertion is not made or implied herein.
[4] Kelly has led the fight against wearing masks in her state and nationally.
Kelly didn’t assert or point out that the statement was wrong, just referring to her prominence in advocating against mandatory mask wearing.
[5] Experts in Kelly’s field are losing it. It’s not clear why Kelly thinks that claim is false. This is another example of rhetorical hyperbole, referring to other industrial hygienists disagreeing with her assertion. This is not an actionable statement.
[6] Leading scientists are not on Kelly’s side. Kelly did not say why she thought the claim was false.
[7] 99% of AIHA members believe face coverings are an important strategy to reduce infection [COVID] risk. That said very little about Kelly. At best, it means she disagrees with most AIHA members on whether mask wearing is an “important” strategy, which is an inherently subjective matter open to debate.
Also, the statement is not actionable because “99%” of the language is Sloan [the AIHA CEO’s] Estimated high level of support among AIHA members for the asserted proposal. Nothing in the facts infers that defendant recklessly ignored the facts in reporting this statement. Kelly did not assert that the facts showed that the defendant had good reason to doubt the truth of the statement. In fact, Kelly himself didn’t point out why the claim was false.
Kelly noted that in an email attached to the complaint, Sloan told another person, “When I read this, I cringed when I saw that sentence. That’s not what [sic] Said, we have notified the editor accordingly. The Daily Beast later changed the article to say that the “overwhelming majority” of AIHA members “consider face coverings to be an important risk reduction strategy.” “However, Kelly attributed any falsehood to the statement to Sloan; she claimed that “Sloan [k]New, when he made his statement to Campbell, his statement was false. However, there is no factual inference to infer that Campbell or the Daily Beast would have reason to know any of the lies that Sloan told them. Accordingly, Kelly is not claiming real malice against the defendants in relation to that statement.
[8] Kelly’s activism is dangerous and is undermining the science of industrial hygiene. Here, defendants report on Sloan’s perception of the impact of Kelly’s activism. They did not make provably false statements of fact about this activism.
[9] Kelly is not an advanced industrial hygienist. The article does not make this assertion. Instead, it reported the opinion of a man who allegedly said that senior industrial hygienists “are not real.” It also reports why Kelly believes the term has meaning in her profession. In doing so, the defendants did not make false statements of fact. Indeed, Kelly’s assertion that job titles “are not the real thing” is clearly a subjective opinion expressed in loose rhetorical terms. This is not an assertion that can be proven wrong.
[10] Kelly’s affidavit removed from Tennessee Bleacher website after noting inaccuraciesKelly objected to the statement as she asked Tennessee Stand {an “opposition to COVID restrictions” group} to remove the affidavit due to concerns it contained her personal information. However, the defendant reported her claims in the article.Notably, Kelly did not challenge the substance of the defendant’s statement, namely, Tennessee’s position Tell The Daily Beast learned that her affidavit was inaccurate before it was removed from its website. In fact, that statement could be reconciled with Kelly’s description. In other words, both could be true at the same time: Kelly asked the Tennessee Bleacher to delete the affidavit, and the Tennessee Bleacher learned of the affidavit’s inaccuracies before doing so. Therefore, Kelly did not adequately allege false statements.
In addition, Kelly did not provide sufficient facts to prove that the defendant did have malicious intent. Instead, the article seeks to point out several inaccuracies in the affidavit, undermining any argument that the defendants had reckless disregard for the facts.
Kelly compared the situation to other situations where a court might find reckless disregard for the truth, including: relying on “unsubstantiated anonymous phone calls”; making statements that were “essentially impossible”; the authenticity of the informant.” None of those situations exist here. The article, which cites an unnamed source rather than anonymous, verifies the information presented by identifying several inaccuracies in the affidavit, and then gives Kelly a chance to respond. Apparently, she did not refute those inaccuracies in her response to the defendants, and she does not refute them here. Moreover, the inaccuracies in the affidavit and the Tennessee Bleachers found they were not “inherently impossible.” Finally, Kelly did not present any facts that the defendant had apparent reason to doubt the veracity of the information received from the Tennessee Stand. As previously stated, the statement from the Tennessee Stand does not directly contradict Kelly’s claim.
[11] Kelly submitted false information in the affidavit. The article does not make that statement, but it does aim to point out inaccuracies in the affidavit. However, Kelly did not explain how any of the statements in the article about the contents of the affidavit were false. Instead, she simply made the conclusive assertion in her complaint that “[t]There are no inaccuracies in the affidavit. “The court need not accept that this conclusive assertion is true. …
Kelly asserts that there are no facts to suggest that defendants made any provably false assertions of fact or selectively omitted any material relevant facts. As for the affidavit, there is no fact that the defendant intended to imply that Kelly committed perjury. Therefore, for all of the above reasons, Kelly failed to bring a defamation suit against the defendants….
