The Second Circuit Court of Appeals recently affirmed the dismissal of a case against BuzzFeed, an internet media company, for publishing an allegedly libelous article about a British news agency, Central European News Ltd. (“CEN”), and its founder, Michael Leidig. See Leidig v. BuzzFeed, Inc., No. 19-851-cv (2d Cir. Dec. 19, 2019) (“Order”).

In April 2015, BuzzFeed published the article in question, entitled “The King of Bullsh*t News” (the “Article”). The Article addressed news stories on various bizarre topics sold by CEN to third-party English-language media services around the world. CEN’s stories reported, for example, that a two-headed goat was born on a farm in China, that a Russian woman killed her kitten by dying it pink, and that teenagers in China were walking cabbages on leashes to alleviate feelings of loneliness. The Article – based on many months of investigation conducted by BuzzFeed journalists – stated that “the evidence assembled by BuzzFeed News suggests that an alarming proportion of CEN’s ‘weird news’ stories are based on exaggeration, embellishment, and outright fabrication[.]”

CEN and Leidig defended the veracity of their news stories and sued BuzzFeed for libel. To prevail on a libel claim under New York law, the plaintiffs must prove that BuzzFeed published a false and defamatory statement regarding the plaintiffs to a third party, that BuzzFeed published the statement with the requisite degree of fault and without privilege or authorization, and that the statement caused damage to the plaintiffs or was per se libelous. See Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001). A statement is per se libelous if it “tend[s] to injure another in his or her trade, business or profession.” Id. BuzzFeed moved for summary judgment, the District Court granted BuzzFeed’s motion, and the plaintiffs subsequently appealed.

The Second Circuit focused on the plaintiffs’ burden of establishing the required element of falsity. The plaintiffs argued that the District Court erroneously “eliminate[d] from the court’s consideration ‘nearly all of [their] evidence,'” including Leidig’s declarations, Leidig’s deposition testimony, and deposition testimony by four of Leidig’s journalists. Order at 4. Rejecting this argument, the Second Circuit concluded that the District Court correctly refused to consider the plaintiffs’ “conclusory assertions” as evidence of the Article’s falsity and explained that “[w]hile a bland cryptic claim of falsity supported by the credibility of a witness might be sufficient to establish a proposition in other civil cases, the First Amendment demands more.” Id. at 4 (quoting Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 188 (2d Cir. 2000)). Otherwise, accepting a plaintiff’s conclusory assertions of falsity “as sufficient proof would effectively shift plaintiffs’ burden of establishing falsity onto media defendants to establish truth.” Order at 4 (quoting Celle, 209 F.3d at 188). Because plaintiffs published the stories that BuzzFeed stated were fabricated, the plaintiffs “are better positioned than [BuzzFeed] to show whether their reports of two-headed goats, people walking cabbages out of loneliness, and so on, were accurate and substantially true.” Order at 4. The Second Circuit concluded that the plaintiffs “simply fail[ed] to present any competent evidence suggesting that BuzzFeed’s reporting was false.” Id. at 4.

The Second Circuit highlighted that the plaintiffs offered no evidence regarding the accuracy of the story about lonely Chinese cabbage walkers “[o]ther than Leidig’s self-serving and discredited testimony” and that Leidig admitted in his deposition that “he does not know where the quotes in the Two-Headed Goat Story came from.” Id. at 3-4. Consequently, the Second Circuit concluded that the District Court “correctly determined that Plaintiffs failed to establish any genuine issue of material fact with respect to the falsity of BuzzFeed’s contested statements.” Id. at 4-5.

The most interesting aspect of this opinion is that a plaintiff cannot meet his, her, or its burden of proving falsity on a libel claim by submitting a declaration or affidavit that simply asserts the content of the publication is false. As the Court noted, the First Amendment demands more than conclusory affidavits.