The following is my legal response to a false, defamatory article published by the industry newsletter "NewsBlues" and written by FTV Lives' Scott Jones.
With so much false propaganda in the interest of the pharmaceutical industry routinely circulated in the media, it's not possible for me to challenge and correct all of it. But from time to time, when defamation occurs, I hire an attorney to protect my reputation against such false claims.
Read the letter below.
VIA U.S. & ELECTRONIC MAIL
320 East 23 Street, 14L New York, NY 10010
c/o Rick Iler
Managing Editor and CEO
c/o Scott Jones Editor in Chief
October 22, 2021
Re: Defamation of Sharyl Attkisson Dear NewsBlues and FTVLive:
This law firm is First Amendment counsel to Sharyl Attkisson. We have been retained to pursue redress for your October 12, 2021, false and defamatory accusations against Ms. Attkisson published by FTVLive.com and distributed by NewsBlues.com under the headline “Sinclair Has Been Mum on Vaccine Mandates.”1 More specifically and as detailed below, you falsely and expressly accuse Ms. Attkisson of being an “anti-vaxxer,” falsely accused her of manipulating company policy concerning vaccines, and in doing so, falsely conveyed that she (and Sinclair) are placing their staff’s health and safety beneath their falsely alleged political bent. You did so on the purported authority of anonymous sources (who we may ultimately discover do not actually exist). To afford you an opportunity to mitigate the reputational harm you have caused to Ms. Attkisson, we demand that you immediately take down and retract your false and defamatory accusations in as conspicuous a manner as they were originally published.
Though it should not be necessary to introduce you the target of your reporting, the specific false claims you have made require that we briefly do so. Ms. Attkisson is demonstrably neither anti- nor pro-vaccine. She is an honest journalist. Thus, her work reporting on vaccine safety issues has been recognized with nominations from the Emmy Awards as well as the Investigative Reports and Editors (IRE) group. Further, her vaccine reporting has been cited positively as a source in the New England Journal of Medicine by a top Johns Hopkins neurologist. More personally, it is public knowledge that Ms. Attkisson’s now-grown daughter was fully vaccinated with all routine childhood shots. Finally, Ms. Attkisson’s reputation as a news journalist is stellar. In decades of breaking stories and having received international recognition for her reporting, she has never had to retract a single report. As her international recognition imports, she is objective.
1 See, e.g., https://www.ftvlive.com/sqsp-test/2021/10/12/sinclair-has-been-mum-on-vaccine- mandates.
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She is no more pro- or anti-vaccine than she is pro- or anti-medicine, tires, cars, toys, or any other topic about which she has unearthed safety concerns during her career as an investigative journalist.
NewsBlues, on the other hand, has previously attacked Ms. Attkisson and had to issue a correction for doing so in 2019. Yet, it touts itself and its standards. “Serving up tasty television insider news since 1988.” It claims that it “does not rush headlong to be first” and “covers news the old fashioned way ... truthfully, accurately, objectively, and impartially.” You fell far short of your stated standards. Further damaging to Ms. Attkisson, NewsBlues markets to industry insiders, professionals, agents, news directors, and other journalists who are potentially critical to Ms. Attkisson’s standing in the community.
Turning to your specific false and defamatory accusations against Ms. Attkisson, they are as follows: “Sinclair also employees [sic] former CBS Correspondent Sharyl Attkisson, who insiders say is a strong anti-vaxxer. One Sinclair employee wonders if Attkisson is filling the Sinclair bosses’ ears with enough anti-vax rhetoric that they are too scared to make the call on vaccines?”
You also juxtaposed the above clearly false accusations against Ms. Attkisson with other defamatory statements designed to convey a pre-conceived false gist that Ms. Attkisson is actively favoring your false version of her political bent over the safety of her fellow Sinclair colleagues:
1. “While the vaccine should never have become a political football, it most certainly has.”
2. “Many on the right have spoken out against the vaccine that has helped millions of people not get COVID and lessen the effects if they did.”
3. “But Sinclair, which often works as a mouthpiece for the right has been silent when it comes to making the vaccine mandatory. One Sinclair News Photographer tells FTVLive that the company is doing the bare minimum to keep the staff safe. ‘They just give us paper masks and wipe their hands of it,’ said the Shooter.”
As an initial matter, by use of her name in this context there is no doubt that the entirety of this short article is “of and concerning” Ms. Attkisson. See, e.g., Stanton v. Metro Corp. (Stanton II), 438 F.3d 119, 128 (1st Cir. 2006) and Stanton v. Metro Corp. (Stanton I), 357 F. Supp. 369, 380-81 (D. Mass 2005) (article which referred indiscriminately to high school students and teenagers “in the Boston area” of and concerning plaintiff, who was one of sixteen students depicted in seven photographs in the article, “even in the absence of any express textual connection between the statement and the [plaintiff’s] photograph”); Peck v. Tribune Co., 214 U.S. 185, 188- 89 (1909) (“Of course, the insertion of the plaintiff’s picture in the place and with the concomitants that we have described imported that she was the nurse and made the statements set forth.”); Clark v. Am. Broad. Companies, Inc., 684 F.2d 1208, 1213 (6th Cir. 1982) (use of plaintiff’s image, among other women’s images, rendered television broadcast concerning prostitution of and
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concerning plaintiff); Horton v. Georgian Co., 175 Ga. 261 (1932) (finding that a report which “mentioned” plaintiff, including by reporting accusations in court of misuse of funds, “was susceptible of the construction that the plaintiff’s firm was involved in the alleged mysterious death of Mrs. Tucker”).
It is also clear that, when read in its full context – as defamatory statements must be – the scope of the false and defamatory meaning of the article is plain. See, e.g., Bryant v. Cox Enterprises, Inc., 311 Ga. App. 230, 238 (2011) (courts “must construe each statement in the context of the entire writing to assess the construction placed upon it by the average reader.”). By tying together the notion that Ms. Attkisson is anti-vaccine with her false and defamatory connection to Sinclair’s leadership on the issue, it is plain that you not only conveyed the false and defamatory gist that Ms. Attkisson is an “anti-vaxxer” but also that she is choosing her own beliefs over the safety of others. She is not anti-vaccine and she unequivocally has not discussed company policy about vaccines with her bosses or Sinclair executives, nor has she made any attempt to sway company police on the matter.
Finally, that you harbored actual malice – which would subject you to both presumed and punitive damages in the event of litigation – is also clear from the content of your false and defamatory article.
As an initial matter, your reliance on anonymous sources (even presuming they exist and this story was not made up out of whole cloth) is itself evidence of recklessness. Reliance on sources you know to be biased and/or lacking in firsthand knowledge is, itself, indicia of the recklessness with which you published this story(s). That is evident from your report, which states that an unidentified source “wonders” if that is the case; it is rank speculation and may even be fabricated out of whole cloth. Cf. Biro v. Conde Nast, 963 F. Supp. 2d 255, 277-78 (S.D.N.Y. 2013), aff’d, 807 F.3d 541 (2d Cir 2015) (acknowledging that “actual malice is [often] proven through circumstantial evidence,” “including where,” without limitation, “a story is fabricated”).
Second, you failed to even seek a comment, much less do any fact checking, with Ms. Attkisson herself, the most obvious source for your reporting. These first two points combined – failure to investigate and failure to interview most obvious source – are palpable evidence of actual malice. See, e.g., St. Amant v. Thompson, 390 U.S. 727, 730 (1968) (actual malice and purposeful avoidance of truth where defendant relied on biased source and failed to interview key witnesses); Curtis Publ’g v. Butts, 388 U.S. 130, 156-57 (1967) (failure to investigate truth of unreliable source’s allegations may support finding of actual malice).
Third, it is apparent from the tone of your report that you are merely pursuing a pre- conceived (and fabricated) narrative of your own, which itself is evidence of actual malice.2 Indeed, it appears that you are guilty of the very same conduct of which you falsely accuse Ms. Attkisson – propping up your own political narrative for your own purposes. Cf. Harris v. City of
2 Your own bias is also evident from your prior “reporting” on Ms. Attkisson.
Seattle, 152 Fed. App’x 565, 568 (9th Cir. 2005). Contrary to the protestations to the contrary in NewsBlue’s self-touting standards, its news gathering service appears predisposed to this kind of conduct, which is also evidence of actual malice. See, e.g., Overstock.com, Inc. v. Gradient Analysis, Inc., 151 Cal. App. 4th 688, 711 (2007) (model resulting in “defamatory implication to achieve preconceived result” “suffices to show a reasonable probability that the statements discussed above were made with actual malice”).
As a last point on actual malice, should you fail to acknowledge your errors and issue the retraction demanded herein, that will also be evidence of actual malice. Cf. Biro, 963 F. Supp. 2d 255, 277-78 (evidence of actual malice includes where “the defendant knows or suspects that it has committed an error and refuses to acknowledge it”).
For the reasons stated herein, we hereby demand that you immediately take down your false and defamatory article and issue a retraction in as conspicuous a manner as your original article was published. We specifically request that your retraction state that “despite a previous report, Sharyl Attkisson is not anti-vaccine, and it is public knowledge that she has received many vaccinations as an adult. Her reporting on vaccine and prescription drug safety has been recognized with an Emmy nomination and a nomination from the Investigative Reporters and Editors group. She has not discussed Sinclair company policy on vaccines with executives, nor has she made any attempt to sway such a policy. We regret that we did not reach out to her to fact check our story prior to publication and regret the error.”
This letter also serves as notice that you and your affiliated entities, employees, agents, and assigns (collectively, “you”) are hereby directed to preserve any and all evidence related in any way to your planned reporting regarding Ms. Attkisson (collectively, your “Reporting”). By this letter, you are directed not to destroy, conceal, or alter any paper or electronic files, physical evidence, and/or other data generated, relating in any way, no matter how remote, to your Reporting and/or the circumstances leading to its publication, including, but not limited to: (1) all sources of the statements made in the Reporting; (2) any and all documents and data referring to, reflecting, or relating to communications between you and any sources for the Reporting; (3) any and all documents and data referring to, reflecting, or relating to internal communications regarding the Reporting and the statements made therein; and (4) any and all documents and data referring to, reflecting, or relating to communications between you and our client or her representatives, and/or between you and any third party, regarding the Reporting and/or the statements made therein.
Many records and files are maintained electronically. This letter specifically requests that all paper and hard copy originals be maintained and preserved in their original format. By the same token, electronic documents and the storage media on which they reside – emails, texts, voicemails, phones, computers, social media messaging etc. – contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists and has been preserved, please preserve and maintain all electronically stored documents and information in their original native format. This preservation demand specifically
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encompasses any and all electronic documents, including but not limited to, all word-processed files, e-mails, spreadsheets, all databases, and any other electronically stored and/or generated documents or files.
This letter does not constitute a complete or exhaustive statement of our client’s rights, claims, remedies, and contentions. Nothing stated herein is intended as, nor should be deemed to constitute, a waiver or relinquishment of any of our client’s rights or remedies, whether legal or equitable, all of which are hereby expressly reserved.
G. Taylor Wilson