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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 0-20-CV-61872-AHS

Judge Raag Singhal

ALAN DERSHOWITZ

Plaintiff,
vs.

CABLE NEWS NETWORK, INC.

Defendant.
________________________________________/

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

MOTION TO DISMISS

Plaintiff, by and through undersigned counsel, files his opposition to CNN’s motion to
dismiss and states as follows:

CNN has filed a motion to dismiss pursuant to FRCP 12(b)(6), however, a reading of that
motion shows that it totally misses the mark of what the parameters are for a motion under the
rule. CNN’s motion is not a motion to dismiss for failure to state a claim within the four corners
of the complaint but is actually a combination of a post-discovery summary judgment attempt
along with a closing argument to a jury. CNN would like to skip the entire discovery process
and trial and is essentially making a pitch for this Court to be the jury and decide the case on the
merits right away. It appears that notwithstanding the recently decided Palin v. N.Y. Times Co.,
940 F.3d 804 (2d Cir. 2019), CNN would like to induce this Court to make the same error that
led to the district judge’s reversal in Palin. The problem with CNN’s logic is that Florida and
federal law do not allow it to ignore the clear fact that plaintiff’s complaint states a valid cause of
action. CNN’s hope that the facts and evidence will ultimately vindicate them is irrelevant to the
simple analysis that this court should perform in denying CNN’s motion. Plaintiff uses the word

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“simple,” because it really is simple. Despite CNN’s twenty-one-page motion with hundreds of
pages of exhibits, it cannot escape the following:

Plaintiff has alleged that CNN and its paid commentators falsely told a CNN audience of
millions of people that Alan Dershowitz argued before the U.S. Senate that an American
President can commit crimes and be immune from impeachment so long as the president
believed his reelection was in the public interest while he was committing the crimes. The
complaint alleges that CNN and all of the commentators knowingly lied when they said this and
that they knew they were lying when they said it. If the evidence proves plaintiff’s allegation,
then each commentator committed unlawful defamation and CNN is both vicariously and
primarily liable for damages. It really is that simple.

Nothing CNN has argued can negate the fact that within the four corners of the
complaint, plaintiff states a cause of action. To state a claim for defamation in a case involving
a public figure (as Dershowitz concedes he is), the plaintiff must plead that the alleged
defamatory statement was false and that the person making the statement did so with malice,
meaning it was done with knowledge that it was false or with reckless disregard of whether or
not it was false. Plaintiff has in fact pled that.

The Supreme Court made this very clear in New York Times v. Sullivan, 376 U.S. 354
(1964) when it wrote,

[t]he constitutional guarantees require, we think, a federal rule that prohibits a

public official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with "actual
malice"—that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.
Id. at 279-80 (emphasis added).

Turning to the complaint, in paragraph 16, plaintiff alleged, “[t]he defamatory statements
CNN published were made by each person knowing that what they were stating was false…”.

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Plaintiff acknowledges that his allegation must meet the plausibility test of Ashcroft v.
Iqbal, 556 U.S. 662 (2009). The question then is whether plaintiff’s allegations give rise to a
plausible inference that CNN’s commentators uttered statements knowing of their falsity or with
reckless disregard of their falsity or a plausible inference that discovery can reasonably lead to
such evidence.

There is no doubt that the allegations raise a plausible inference because it is plausible at
this very moment and will be even more so after discovery, that reasonable minds will be able to
conclude that the defamatory statements quoted in the complaint were said with knowledge, or at
least recklessness, that they were false at the time of utterance. Given the circumstances alleged
by plaintiff, which involve three separate broadcasts using the identical truncated clip of
plaintiff’s comments and making virtually the same false claims about him, there is a strong
inference that this was no accident or mere negligence but, rather, was part of a coordinated
effort to smear plaintiff. And it will be even more plausible after discovery, when plaintiff will
gain access to programming notes, emails, text messages, deposition testimony regarding
conversations, pre-airing discussions, and other non-privileged evidence showing coordination
and planning by the CNN producers and commentators. The very recent Florida Court of Appeal
decision in CNN v. Black, 2020 WL 5937409 (Fla. 4th DCA Oct. 7 2020), demonstrates this
very point, wherein the appellate court upheld the trial court’s order requiring CNN to make such
a production, given plaintiff’s burden to prove malice. Id. at pages 2 and 4. The question is for
a jury, not the court. The law only allows this court to dismiss the complaint if the court
concludes based on what plaintiff has alleged in the complaint that it is wholly implausible that
he will ever be able to prove malice. In this case, such a conclusion is impossible given the facts
and people involved.1

1
It is noteworthy that at the time of drafting this opposition, a significant Project Veritas news story has broken with
CNN’s CEO Jeff Zucker allegedly caught on tape directing CNN employees on what public figures to go after and
how to frame the stories. Zucker is heard directing CNN broadcasters, as one of many examples, to go after Senator
Lindsay Graham “because he deserves it.” [Link] While
those leaked tapes do not mention plaintiff, this new revelation does support the plausibility of plaintiff’s claim that
the smear campaign against him was part of a coordinated vendetta by the CNN management. Zucker’s recorded
and leaked phone calls lend plausibility to the inference that it was no accident, but rather an orchestrated effort, that
three CNN commentators all made the same false comments about plaintiff after airing the same video clip of
plaintiff with the part negating their comments deleted.

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There are two dynamics to this defamation cause of action. One is the actual false
statements made by John Berman, Joe Lockhart and Paul Begala in separate broadcasts. The
other is the use of the identical misleading and incomplete clip of plaintiff’s response on the
senate floor that each of the commentators used to support their same false statements about
Professor Dershowitz. CNN focuses on the video as a stand-alone issue, but plaintiff’s allegation
is not that CNN had a duty to play Dershowitz’s entire answer to Senator Cruz’s question, but
that defendants knowingly and selectively used a portion of the clip while deliberately omitting a
key portion, and did so for the specific purpose of supporting the false statements of their
commentators. There will be a more detailed analysis of this below, but for now, we need only
turn to the statements, because the statements by themselves, even without the video backup, are
defamatory and alone sufficient to sustain the defamation claim. Not only is it plausible that a
jury will find that all of the commentators actually knew that what they were saying was false, it
is further plausible that the jury will find that the commentators coordinated with each other and
with the CNN production staff to defame plaintiff. As such, the complaint states a claim, even
without even taking the video into account.

We are dealing here with three well-educated and highly sophisticated commentators on a
high-visibility national news network. Joe Lockhart is a graduate of Georgetown University and
was Press Secretary to President Bill Clinton. After CNN aired the truncated portion of the
video of Professor Dershowitz saying,

Every public official that I know believes that his election is in the public interest and,
mostly you are right, your election is in the public interest, and if a president does
something which he believes will help him get elected in the public interest, that cannot
be the kind of quid pro quo that results in impeachment.

Lockhart then commented that “it doesn’t give you a license to commit crimes” (and then went
on to liken that to Mussolini and Hitler genocide) (par.13 of complaint) leading the audience
believe to that Professor Dershowitz had stated that a president can commit crimes and escape
impeachment so long as he thought his reelection was in the public interest. But it is not
disputed that Professor Dershowitz’s full statement included the following:

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The only thing that would make a quid pro quo unlawful is if the quo were somehow
illegal. Now we talk about motive. There are three possible motives that a political
figure could have. One, a motive in the public interest and the Israel argument would
be in the public interest. The second is in his own political interest and the third, which
hasn’t been mentioned, would be his own financial interest, his own pure financial
interest, just putting money in the bank. I want to focus on the second one for just one
moment. Every public official that I know believes that his election is in the public
interest and, mostly you are right, your election is in the public interest, and if a
president does something which he believes will help him get elected in the public
interest, that cannot be the kind of quid pro quo that results in impeachment.

With that being the case and being undisputed, the only question for this court in deciding
if the plaintiff has stated a cause of action, is whether it is plausible that a jury could conclude
that Joe Lockhart knew he was lying when he stated to the CNN audience that Professor
Dershowitz believed a president could commit crimes and escape impeachment so long as he
believed his reelection was in the public interest. When Joe Lockhart said on national television
that Professor Dershowitz argued that the president can do things like Hitler and Mussolini 2, did
he really believe what he was saying was true? But most significantly, is it plausible that the
jury will believe that Joe Lockhart, a former Presidential Press Secretary, knew that Professor
Dershowitz had said “the only thing that would make a quid pro quo unlawful is if the quo were
somehow illegal,” but nonetheless told a CNN audience of millions that Professor Dershowitz
told the senate that a president could commit crimes and escape impeachment? Unless this court
concludes, on the basis of the complaint, that it is not plausible that plaintiff can prove to a jury
of reasonable minds that Joe Lockhart understood and knew that Professor Dershowitz excluded
illegal acts, then this complaint cannot be dismissed as a matter of law.

Then apply that same test to Paul Begala, chief strategist to the Clinton-Gore campaign
who is credited with making Bill Clinton president, a paid legal and political commentator who
also holds a Juris Doctor degree from the University of Texas and holds himself out as a legal
expert. Could a jury plausibly conclude that he knew Dershowitz had said that “the only thing
that would make a quid pro quo unlawful is if the quo were somehow illegal,” but nonetheless
wrote in his CNN piece that Professor Dershowitz said that a president is immune from every
criminal act and can commit bribery and extortion without limitation?

2
Par 13 of plaintiff’s complaint.

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And how about John Berman? He is a Harvard University graduate and the anchor of
CNN New Day. He is also the former writer for Peter Jennings and was a White House
correspondent. In fact, he is so smart that he was a champion on Jeopardy with Alex Trebek. Is
it plausible that a jury will conclude that he knew Dershowitz had said “the only thing that would
make a quid pro quo unlawful is if the quo were somehow illegal,” but nonetheless told his
audience that Professor Dershowitz said that a president “can do anything, anything?”

As such, without even needing to go any further or addressing the countless legally
incorrect arguments CNN made in their motion, and without the need to even discuss the video
as a stand-alone defamatory act, plaintiff’s complaint does state a valid claim for which relief can
be, and should be granted. For this reason, CNN’s motion should be denied.

CNN’S ARGUMENTS ARE WITHOUT ANY LEGAL MERIT

We will now go through CNN’s arguments, one by one, tracking them as they appear in
its motion, and show how each argument has no applicability to plaintiff’s claim but are instead a
grouping of diversions and tangents designed to distract this Court from the central legal issue in
the hopes of gaining a ruling in its favor.

In the introduction section of its motion, on page 2 specifically, CNN discusses the fair
report privilege, claiming that it fairly reported a government proceeding and somehow that
makes it immune from a defamation action. We can immediately dispose of this fair report
privilege because it is entirely irrelevant to this lawsuit. Plaintiff did not file a lawsuit
complaining that CNN aired only a portion of Professor Dershowitz’s senate floor argument.
Had CNN run several stories and stated something like, “earlier today Alan Dershowitz said the
following….” and then showed the truncated clip and moved on, then it might arguably fall
under the fair report privilege. However, the fair report privilege doesn’t give news outlets a free
pass to knowingly lie on the air. Plaintiff’s complaint is that CNN’s commentators told its

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audience that Professor Dershowitz stated, in response to a question posed, that a president can
commit illegal acts and be immune from impeachment depending on his subjective mindset and
knew that what they were saying was a lie. They all knew that Professor Dershowitz had just
prefaced the clip they chose to play with the clear caveat that illegal and unlawful activity can be
grounds for impeachment. It is truly remarkable that CNN is suggesting to this court that, so
long as they show a video of a governmental proceeding, they are subsequently immune from all
liability even if it is proven that its commentators lied about it.

Once again, for purposes of ensuring no possible confusion regarding this entire focus on
the video clip, this lawsuit has been brought because CNN commentators knowingly made false
statements. Once they did that, the tort was committed. They then used only a portion of the
video clip to make their lies appear believable to the audience, but the false statements were
defamatory, regardless of the clip. There is no federal statute, no state statute and no case law
that affords immunity to a news agency for knowingly lying. When the media lies and gets sued
for defamation because of that lie, it is for a jury to weigh the evidence and decide the case.

CNN then points to other news organizations that it claims reported on Professor
Dershowitz’s response in the “exact same way” that their commentators did. (CNN Motion to
Dismiss at 5). This may show that plaintiff should investigate whether there are other potential
defendants that deserve to be served with a defamation lawsuit, but the existence of other wrong-
doers does not absolve CNN of its culpability. Whether or not there are other networks that also
committed defamation, perhaps relying on CNN’s widely seen defamatory broadcasts, is another
story for another day.

Notwithstanding the legal irrelevance of CNN’s argument here, it is rather remarkable

that one of the sources CNN quotes on page 5 of its motion is NPR and they include the part
where NPR stated, “a quid pro quo can’t be illegal unless the quo is illegal.” In fact, CNN’s
argument actually inspired plaintiff to look into other major news agencies, which resulted in
revelations that further undermine CNN’s points. Fox News included the part of “the only thing
that would make a quid pro quo unlawful is if the quo were somehow illegal,”
([Link]

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impeachment-trial-enters-new-phase). Vox gave their take but responsibly and honestly

included, “In other words, if the president thinks his or her reelection itself is in the public
interest of the United States, then anything short of crimes he or she does to make that happen
— including strong-arming foreign governments into announcing investigations into political
foes — is justified.” [Link]
quid-pro-quos-not-impeachable. The Wall Street Journal: “The Harvard Professor said
explicitly that a president can be impeached for criminal acts.”
[Link] Then there was USA
Today’s report that included: “Dershowitz said a quid pro quo that involved an illegal act, or
was done for personal financial gain, would be impeachable,
however.” [Link]
controversial-trump-impeachment-argument/4618461002/

Normally none of this would be relevant in determining whether the complaint states a
viable claim, but CNN opened the door with its inclusion of these points in their motion. Not
only did other news organizations prove that they acted far more responsibly than CNN, the fact
that they got it right and told their audiences that Professor Dershowitz did exclude “crimes”
from his statements, demonstrates even further that plaintiff satisfies the plausible inference
prong of Iqbal and that plaintiff’s complaint cannot be dismissed.

Section “D” of CNN’s motion can also be summarily dispensed with because it contains
nothing more than a mitigation of damages argument. It has no bearing on whether the
complaint states a claim. While CNN’s Chris Cuomo gave Professor Dershowitz a platform two
days later to expose Begala, Berman and Lockhart’s lies, that might help mitigate damages with
those viewers who tuned into Cuomo’s broadcast. Certainly, not everyone who watched the
Berman, Lockhart and Begala broadcasts also watched Chris Cuomo two days later. While
CNN then argues on page 8 of its motion that “Dershowitz has already had ample opportunity to
air his grievances with CNN in the court of public opinion,” we remind CNN that a victim of
defamation who appears on news shows to defend himself does not waive his right to move his
grievances from the court of public opinion to the court of law. Rather, his appearances satisfied
his duty to attempt to mitigate the damages inflicted upon him by the slanderers and libeler.

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In section I of the argument portion of its motion, CNN revisits its alleged fair report
privilege. The inapplicability of this was discussed earlier, but here CNN adds more to its
argument by again suggesting that it only aired a verbatim clip of Professor Dershowitz’s
argument that they received from the congressional record printed well after the airing of their
commentators’ false statements. Once again, the tort was committed by the commentators when
they made their statements; their use of a truncated portion of plaintiff’s statement to fool their
viewers into believing the false statements is a separate tort. As such, the privilege is irrelevant
here. But the real crux of CNN’s argument here comes in the first full paragraph of page 10
where it argues, “[i]t is self-evident that the fair report privilege applies to the reporting at issue
here – matters of virtually unprecedented historical and public interest concerning the
impeachment trial of the President of the United States for soliciting foreign interference in an
upcoming domestic election.” This argument is frightening. What CNN is arguing is basically
this: So long as the matter being reported is really, really important and really historical, the
press has a privilege to go on television and blatantly lie when reporting it. According to CNN,
the rule of law is suspended so long as the subject matter is unprecedented. Thankfully for all
Americans, and unfortunately for CNN, that it not the law.

CNN then cites to Gubarev v. Buzzfeed, 340 F. Supp 3d 1304 (S.D. Fla 2018), and
claims that the way the congressional record ultimately printed Professor Dershowitz’s statement
as its own stand-alone paragraph is somehow dispositive and that Professor Dershowitz’s book
broke it up in the same way, notwithstanding the fact that his book merely contains a verbatim
reprint of the transcript. All of this they claim should exonerate them at the initial pleadings
stage. First, CNN continues to ignore that the lawsuit is not only about the airing of the clip but
is also about false statements and the additional use of a clip in support of the false statements.

Next, the Buzzfeed case is different. In that case, Buzzfeed simply published the Steele
Dossier in its entirety and included a disclaimer to its accuracy: “[The Dossier] is not just
unconfirmed: It included some clear errors.” Gubarev v. Buzzfeed, 340 F. Supp at 1308 (internal
quotations and citation omitted). The readers read it and made of it what they understood it to
be. In this case, CNN’s commentators made false statements and then used only a part of

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Professor Dershowitz’s video in a manner they knew was out of context for purposes of
bolstering their lies. That’s not the fair report privilege, but is instead a novel doctrine CNN
hopes to create in this court – the false report privilege.

Furthermore, the stylistic manner which the congressional record ultimately chose when
it printed the transcript of Professor Dershowitz’s response to Senator Cruz’s question also has
no legal bearing on whether plaintiff’s complaint states a claim. CNN is free to make that
argument to a jury as it attempts to convince them that they did not know they were publishing
false statements, but it is irrelevant at the motion to dismiss stage.

Even if this case were only about the redacted video clip as a stand-alone issue, plaintiff
would have a claim for defamation based on Masson v. New Yorker Magazine, Inc., 501 U.S.
496 (1991). Masson prohibits journalists from quoting a person in a manner that changes the
meaning of what that person actually said. Here, CNN would like to claim that they had no
responsibility to play Dershowitz’s entire argument because the part of the video where
Dershowitz explains that illegal acts are impeachable did not immediately precede the part CNN
played but appeared a few sentences earlier. However, the complaint alleges that CNN
intentionally used the tape in an out-of-context manner in order to add false video corroboration
for their commentators’ false statements. This is not a case where CNN didn’t know about
Dershowitz’s earlier statement or negligently overlooked it. Plaintiff claims that CNN
deliberately omitted a part of the video that it knew existed, that it knew was the preface to the
clip it aired and knew that the omitted part completely disproved the narrative it peddled to its
audience.

CNN seems to believe that so long as it played a video clip, it is free to say anything it
pleases. However, the court of appeals in Price v. Stossel, 620 F.3d 992 (9th Cir. 2010) held the
opposite. In that case, ABC aired a video clip of Price exactly word for word as it was filmed.
In the clip, Price, a minister, had said, "I live in a 25-room mansion. I have my own $6 million
yacht. I have my own private jet, and I have my own helicopter, and I have seven luxury
automobiles." Id. at 994. ABC broadcast the clip exactly as it was and suggested that Price was
bragging about his wealth. The point, of course, was to make the minister seem unsavory.

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However, the clip was excerpted from a longer sermon in which Price was speaking from the
perspective of a hypothetical person who, though wealthy, was spiritually unfulfilled.

The district court dismissed the defamation action as frivolous, reasoning that the video
was a true rendition of what Price had said and was not doctored, but the Ninth Circuit reversed,
citing Masson. “Where the published quotation contains a material alteration of the meaning
conveyed by the speaker, the published quotation is false. [501 U.S.] at 517. Here, the context in
which Price's words were presented materially changed the words' meaning.” Id. at 994
(emphasis added). As the Supreme Court noted in Masson, “quotations add authority to the
statement and credibility to the author's work. Quotations allow the reader to form his or her own
conclusions, and to assess the conclusions of the author, instead of relying entirely upon the
author's characterization of her subject.” 501 U.S. at 513. When the quotations are false or
misleading, they lend spurious credibility to the message the author is trying to convey.

The same is true here. CNN did not just play a video clip as part of “fair reporting” of a
governmental proceeding. CNN knew that it was changing the meaning of Professor
Dershowitz’s words by using only that portion his statement, which would successfully change
the meaning of what Professor Dershowitz actually said in order to support its commentators’
false and distorted message. Because a reasonable jury could so conclude, dismissal of this
complaint is improper and would send a chilling signal of perpetual immunity to the media at the
expense of countless future defamation victims.

CNN goes on to spuriously cite Folta v. New York Times Company, 2019 WL 1486776
(N.D. Fla 2019), a case decided on summary judgment, not on a motion to dismiss. The
argument CNN attempts to advance is that, even if it was wrong in omitting the significant part
of the tape, it wouldn’t really matter because it isn’t apparent that, had they included the omitted
part, it would have had an effect on the average audience member. But Folta is apples and
oranges to this case. Folta dealt with a string of emails about GMOs in the biotech arena and
incestuous relationships between chemical companies and industry professionals. The court
reasoned that the omitted part would not have ameliorated, and may well have exacerbated, the
implication that plaintiff was in bed with the chemical companies: “It is not apparent that the

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inclusion of the sentences would at all change the effect of the statement in the average reader’s
mind. If anything, their inclusion would likely strengthen the theme of industry executives seeing
value in professorial allies.” Id. at 21.

Folta has no relevance because the statement omitted here completely changed the
meaning of the portion CNN quoted, and would easily have been so understood by the average
viewer. Dershowitz’s statement “the only thing that would make a quid pro quo unlawful is if
the quo were somehow illegal” makes clear that certain kinds of quid pro quo arrangements are,
in fact illegal, and its inclusion would have fatally undermined the narrative being peddled by
CNN and its cohorts that Dershowitz claimed that the president can commit crimes. While the
average reader might not have followed the technical intricacies contained in the Folta emails,
the average American certainly does understand what illegal and unlawful mean.

CNN also argues, on the bottom of page 12 of its motion, that Professor Dershowitz’s
arguments weren’t as clear as he thinks. If CNN believes that and wants to make that argument
to the jury at trial, it is free to do so, although it is doubtful jurors will be taken in by it. But this
is a debatable question subject to resolution by the trier of fact after hearing all the evidence at
trial, not by the court on a motion to dismiss for failure to state a claim.

CNN then continues its exhausting list of arguments with the notion that this was “heated
public debate” and the audience therefore knew to take it all with a grain of salt. CNN then once
again brings up that others also came to the same conclusions as its commentators. First, heated
public debate does not include a license to lie. In debating whether one should be required to
wear face masks in public, for example, it is not permissible to falsely claim that Professor
Dershowitz refuses to wear a mask. Second, simply because CNN claims that others made the
same remarks that CNN did does not mean CNN gets a pass and it is certainly not grounds for
dismissing the complaint because of what others did and did not do.

CNN then plucks a quote from Newton v. Nat’l Broad Co., 930 F.2d 662 (9th Cir 1990) to
suggest that its editorial decisions should be left to it itself with impunity, not second-guessed by
judges and juries. But Newton preceded the Supreme Court’s Masson opinion and therefore

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followed the later-discredited Masson Ninth Circuit opinion. The law in the Ninth Circuit at the
time Newton was decided was that changing the wording of quotes or even attributing false
quotes to a speaker could not constitute malice under New York Times v. Sullivan. See Masson
v. New Yorker Magazine, Inc., 895 F.2d 1535, 1541,1542 (9th Cir. 1989). The Ninth Circuit
Masson opinion, over a vigorous dissent, in fact accorded wide latitude to publishers in
exercising editorial judgment over what words they attributed to the subject of a story. The
Newton panel was bound by the Masson panel opinion which, at the time, was the law of the
Ninth Circuit. Until the Supreme Court unanimously reversed the Ninth Circuit, there was no
authority anywhere (other than the Masson Ninth Circuit dissent) to the contrary. Thus, the
Newton quote that CNN plucks out of context—that “[e]ditorial decisions . . . should be left to
editors, not to judges and juries” 930 F.2d at 686, has no force in a legal regime where editors are
no longer entitled to fabricate quotes or to conform quotes to fit the meaning they wish to convey
to their audience. Contrary to what the Newton court seemed to believe, after Masson, such
decisions are no longer left to the unfettered discretion of editors. CNN is able to quote no post-
Masson case expressing similar sentiments regarding the editorializing of quotes. That ship has
sailed. Today, editors who intentionally leave something highly relevant and connected out in
order to bolster a lie they know they are telling cannot get immunity from a lawsuit by chanting
editorial freedom.

Plaintiff’s complaint alleges that CNN set out to punish Professor Dershowitz for having
defended President Trump, whom that network clearly abhors. The complaint alleges that CNN
intentionally made the decision to omit the part of the clip (that it initially played) for all future
broadcasts and programming, and that this was done to advance an intentional disparaging of
Professor Dershowitz with statements that CNN and its commentators knew were false. Each
commentator knew that Professor Dershowitz had excluded illegal acts from his response to
Senator Cruz’s question and, despite knowing this, told their audience the exact opposite. In a
post-Masson world, such manipulation to fit the editor’s preferred narrative is unlawful.

CNN next argues that the false statements of each of the commentators were all non-
actionable opinions. This is perhaps the easiest section of CNN’s motion to dispense with

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because it deals with the English language. Plain and simple: The defamatory statements that are
the basis of plaintiff’s complaint are not opinion. They were made as statements of fact.

What CNN has chosen to ignore are two well established principles of law. The first is
that just calling something an opinion doesn’t make it an opinion. If that were the case, all
newspapers could put the word “OPINION” on the top of each article or a television broadcast
can have a banner on the screen that says “OPINION SEGMENT” and then make false
statements and claim they were just offering opinions. The Supreme Court in Milcovich v.
Lorraine Journal Co., 497 U.S.1, 18, 19 (1990), (and literally hundreds of cases since), stated
that,

If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of

facts which lead to the conclusion that Jones told an untruth. Even if the speaker
states the facts upon which he bases his opinion, if those facts are either incorrect
or incomplete, or if his assessment of them is erroneous, the statement may still
imply a false assertion of fact. Simply couching such statements in terms of
opinion does not dispel these implications; and the statement, "In my opinion
Jones is a liar," can cause as much damage to reputation as the statement, "Jones
is a liar." As Judge Friendly aptly stated: "[It] would be destructive of the law of
libel if a writer could escape liability for accusations of [defamatory conduct]
simply by using, explicitly or implicitly, the words `I think.' See Cianci v. New
Times Publishing Co., 639 F. 2d 54, 64 (CA2 1980)”. It is worthy of note that at
common law, even the privilege of fair comment did not extend to “a false
statement of fact, whether it was expressly stated or implied from an expression of
opinion.

CNN points to parts of Berman, Begala and Lockhart’s statements (which were quoted in
paragraph 13 of plaintiff’s complaint) and does identify parts that can be classified as opinion
when read standing alone. The key word there being “parts.” But one does not escape liability
for false statements simply because those false statements were nestled in the company of
opinions. Simply put, one cannot say, “In my opinion, Senator Smith is a loudmouth maniac
megalomaniac, just like Hitler, and his cocaine use isn’t helping things much either,” and then
claim immunity from defamation for falsely asserting that Senator Smith uses cocaine.

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For easier reference, here is an excerpt of paragraph 13 of plaintiff’s complaint with the
false statements of fact in bold and the opinions or hyperbole underlined.

Having worked on about a dozen campaigns, there is always the sense that, boy, if
we win, it's better for the country. But that doesn’t give you license to commit
crimes or to do things that are unethical. So, it was absurd. What I thought when I
was watching it was this is un-American. This is what you hear from Stalin. This is
what you hear from Mussolini, what you hear from authoritarians, from Hitler, from
all the authoritarian people who rationalized, in some cases genocide, based what
was in the public interest.” – Joe Lockhart @ 7:11 p.m., January 29, 2020.

The president’s defense team [Dershowitz] seems to be redefining the powers of

the president, redefining them towards infinity.” . . . [out of context video snippet
then played]. . . then Berman continues… “If you look at what he says there it blows
your mind. He says if a president is running for re-election because he thinks
getting elected will help America, he can do anything, anything. And that
redefines the presidency and America. – John Berman @ 6:17 a.m., January 30,
2020.

I did not go to Harvard Law, but I did go to the University of Texas School of Law,
where I studied criminal law and constitutional law, but never dreamed a legendary
legal mind would set them both ablaze on the Senate floor. The Dershowitz
Doctrine would make presidents immune from every criminal act, so long as
they could plausibly claim they did it to boost their re-election effort.
Campaign finance laws: out the window. Bribery statutes: gone. Extortion: no
more. This is Donald Trump's fondest figurative dream: to be able to shoot
someone on Fifth Avenue and get away with it. Paul Begala on [Link],
January 29, 2020 @ 9:11 p.m.

Plaintiff alleged in his complaint that the statements indicated in bold are false statements
that all of the speakers knew were false when they spoke and that there is a plausible inference
(which is all we need at the 12(b)(6) stage) that each uttered them knowing the statements were
false, given the combination of who each of these people is--and the fact that the first part of the
video (not shown to the audience) excepted illegal acts and that they subjectively knew that. In
this section, CNN is once again confusing a motion to dismiss with the summary judgment they
one day hope to file or what they think they can convince a jury of at trial.

CNN then points to case law that it claims supports the view that these statements cannot
be actionable because the facts are otherwise known or available to the reader (meaning the
beginning part of Dershowitz’s words where he excluded illegal acts) and then selectively quotes

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from Zambrano v. Devanesan, 484 So.2d, 603, 606 (Fla 4th DCA 1986), “even if the speaker or
writer does not present the facts, or does not present all of them, like comments may still justify a
finding of pure opinion where the facts are already known to the audience”. The parts of the
CNN’s commentators’ statements that we just outlined are pure fact statements, not opinions at
all. But even if we hypothetically assumed that they were opinions, even though they are not,
this argument still fails.

First, to make this premise work, CNN is essentially suggesting that the entire Begala,
Berman and Lockhart audience knew the underlying facts, meaning that they must have all
watched Professor Dershowitz’s senate floor presentation or that they all watched Blitzer/Tapper
at 3pm on January 29th. Only then could it be positively concluded that Professor Dershowitz’s
exclusion of illegal acts was “already known” to them. CNN is free to make this far-fetched
argument to the jury, but this cannot serve as grounds for a 12(b)(6) dismissal. But even more
significant is that Zambrano supports plaintiff, not CNN.

Zambrano involved statements made by defendants at an in-person staff meeting

consisting of doctors at a hospital—not to a world-wide audience of millions of remote viewers.
In that context, the Zambrano court allowed for the possibility that certain facts might already
have been known to all the participants, in which case any opinion implicitly based on those
facts would not be defamatory because it would not have conveyed any new factual information
to the participants. But the court also made it clear that prior knowledge of the derogatory facts
by all the participants was itself a question of fact—one that defendants had failed to prove at
trial: “The testimony at trial revealed that not everyone present during this meeting knew all of
the facts underlying the controversy.” Id. at 605. Zambrano thus helps plaintiff in three
respects: First, Zambrano makes it clear that, even in the microcosm of a hospital staff meeting
consisting of a handful of professional colleagues, pre-knowledge of the relevant facts cannot be
presumed; it must be proved. This would apply exponentially to a group as large, dispersed, and
heterogeneous as CNN’s audience. But, second, and more importantly, Zambrano was decided
after a trial on the merits where the parties had full opportunity to present their respective cases.
It says nothing at all—indeed, can say nothing at all—about how this question is to be resolved

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on a motion to dismiss. We can infer, of course, that since this issue turns on a factual question,
it cannot be resolved at the 12(b)(6) stage, but nothing in Zambrano speaks to that point.

Finally, Zambrano is substantively helpful to plaintiff because it holds that, where a

speaker expresses an opinion based on fact, it is treated as a “mixed opinion,” which is
actionable if that fact turns out to be false and defamatory. Id. at 607. Dr. Zambrano won for
precisely that reason: The defendants in that case (fellow doctors) made certain statements
during the staff meeting that they tried to characterize as opinion but the Court of Appeals
concluded that the statements in question “at the very least constituted mixed opinion, and were
thus actionable.” Id. In reaching that conclusion, the court explained: “An important factor in
the process of analyzing a comment is determining whether the speaker accurately presented the
underlying facts of the situation before making the allegedly defamatory remarks. Where the
speaker or writer presents the facts at the same time he or she offers independent commentary, a
finding of pure opinion will usually result. . . . Conversely, where the speaker or writer neglects
to provide the audience with an adequate factual foundation prior to engaging in the offending
discourse, liability may arise.” Id. at 606-07 (emphasis added). CNN’s statements fall in the
latter category. CNN can try to dispute this at trial, but citing cases like Zambrano does nothing
to help its case at this stage of the proceedings.

Lastly, CNN argues again in the last section (section III) of its motion that the plaintiff
failed to plead malice. And, once again, uses this section to present summary judgment
arguments (as though all discovery has been complete) or post-verdict appeal arguments (as
though a plaintiff verdict exists), and ignores the fact that plaintiff’s complaint clearly pleads
malice inside its four corners. This was demonstrated earlier in this opposition memorandum
and rather than cause this court to revisit that well-worn path yet again, plaintiff reminds the
court that paragraph 16 of his complaint unequivocally pled malice, that each commentator made
false statements and knew that the statements were false.

CNN’s reliance on Mejia v. Telemundo Mid-Atlantic, 440 F. Supp 3d 495 (D. Md. 2020)
is entirely misplaced, as is CNN’s reliance on the fact that Wolf Blitzer and Jake Tapper showed

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the entire clip properly earlier in the day. In fact, the latter actually makes plaintiff’s point and
helps defeat this motion.

In Mejia, defendant’s publication was the product of an error in placing the wrong banner
under a photo and plaintiff made no allegations referring to the state of mind of the individual in
charge of the defendant’s banners. Plaintiff’s case here is pled as the total opposite of Mejia:
Plaintiff alleges that this was not an error but an intentional planned and calculated decision by
the defendant (see paragraphs 9 and 10 of the complaint) and, unlike Mejia, plaintiff made
allegations pertaining to the commentators’ “state of mind,” specifically alleging, “[t]he
defamatory statements CNN published were made by each person knowing that what they were
stating was false.” The English words “knowing that” refers to what is going on in one’s mind.

Finally, CNN’s argument that it cannot be found to have acted with malice because Wolf
Blitzer and Jake Tapper played the tape properly earlier in the day (about 3pm) and that this
reduced the risk that its viewers would draw the wrong conclusions when the three commentators
all said that Professor Dershowitz argued that a president can commit crimes and escape
impeachment, only helps prove plaintiff’s case. By including plaintiff’s full comment on the
Blitzer/Tapper segment, CNN has shown that it is neither too burdensome nor too distracting to
include what the plaintiff said about the president’s ability to commit crimes. It also shows that
other CNN commentators considered the initial disclaimer to be an integral part of the message
plaintiff was communicating. And of course, it shows that CNN was aware of Professor
Dershowitz’s full statement on the issue of whether or not the president can commit crimes. This
is therefore not a case where a plaintiff wants to reach back in time to qualify a later statement,
or insists on inclusion of an unwieldly amount of information that is too long or far-fetched for a
public audience to understand or appreciate. Nor is it a case where the defendant was simply
unaware of what plaintiff had said. Blitzer and Tapper certainly thought the full statement was
necessary and useful to home audiences, so this much can be taken as conceded by CNN.
Moreover, neither Blitzer, Tapper nor any of their five guests, including their legal expert on the
panel, stated that Professor Dershowitz claimed that the president can commit crimes so long as
he thought his reelection was in the public interest. They didn’t because the video of Professor

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Dershowitz’s full answer, which was played at the top of the segment, precluded any of them
from making such false statements without looking foolish to the audience.

Nor does the full disclosure help CNN for a simple reason: There is no showing—nor
indeed can there be—that the Begala/Berman/Lockhart audiences consisted of exactly the same
viewers as the Blitzer/Tapper audience. Certainly nothing plaintiff has said in his complaint
supports any such inference and, as repeatedly pointed out, the motion to dismiss must be judged
on the basis of what is said in the complaint. Again, CNN is free to try to prove at trial that the
Blitzer/Tapper audience members in question were identical to the Begala/Berman/Lockhart
audiences, even though any such effort will fail to fool a Florida jury. In any event, this is the
wrong time and place to raise such an argument because if even one member of the later
audiences did not see Blitzer/Tapper segment, there would be defamation and the only remaining
question would be the amount of damages.

CONCLUSION

Depriving Professor Dershowitz of justice and what he sees as his responsibility to hold
CNN to a standard of honest and fair reporting would further open the floodgates of false and
misleading reporting, hit pieces, and attempted cancellations of human beings. It has become all
too apparent in the last few years that these dangerous floodgates have already cracked.

Plaintiff respects the First Amendment’s protection that encourages vigorous

investigative journalism, passionate reporting of events and strong and robust legal debate, but
those that are grounded in truth, honesty, good faith, and integrity. CNN failed to live up to that
standard and must be held to account.

In the end, there is no disputing that the four corners of Professor Dershowitz’s complaint
states a claim for which relief can be granted. Accordingly, this Court should deny CNN’s
motion to dismiss.

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REQUEST FOR HEARING

Plaintiff requests a hearing and estimates that 60 minutes would be the appropriate
amount of time for argument (30 minutes per side). A hearing may be helpful to elaborate on
any complexities to the issues presented.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
Court’s CM/ECF portal this 21st day of December 2020 to George LeMieux, Esq.,
glemieux@[Link] Gunster, Yoakley & Stewart, P.A. and Katherine M. Bolger, Esq.,
katebolger@[Link] Davis Wright Tremaine LLP.

RODIER & RODIER, P.A.

Attorneys at Law
400 North Federal Highway
Hallandale, FL 33009
Tel: (954) 455-9300
Fax: (954) 457-0499

By:________//s//__________________
BRIAN M. RODIER, ESQ.
Fla Bar #: 42250

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