OPINION AND ORDER BACKGROUND Plaintiffs Jack and Leslie Flynn have sued Defendant Cable News Network (better known as CNN) under Rhode Island’s false-light statute. The Flynns claim $75 million in damages. The entire dispute stems from a six-minute segment and, more specifically, the segment’s use of a two-second clip in which the Flynns appear. The Flynns say the segment falsely painted them as “QAnon followers.” The parties agree that QAnon is “an American conspiracy movement that began in 2017.” Dkt. 212 4. The conspiracy centers around “Q,” who is supposedly “a high-ranking government official” who “leak[s] top secret information” about the “Deep State.” Id. There have been about 5,000 of these leaks (or “Q drops”). Id. The Flynns say that “a series of outlandish beliefs…have grown out of these Q drops.” Id. 5. But just exactly what those beliefs are is unclear (and is one of the main subjects of this opinion). Before this suit was filed, Jack himself characterized QAnon as “[j]ust People doing their own research and learning independence of thought to find the truth.” Dkt. 198-11. The CNN report at issue aired in February 2021. It was framed around an October 2020 event called “Q Con Live!” Dkt. 212 86. The report opens with a series of short clips from the event, followed by the reporter’s voiceover explaining that the footage was from a “gathering of QAnon followers in Arizona just two weeks before November’s election.” Dkt. 184-1 at 0:01-0:22. The video next shows the so-called QAnon Shaman, who is wrapped in a flag that says, “WHERE WE GO ONE WE GO ALL.” Id. at 0:37-0:42. The voiceover explains, “He’s known as the QAnon Shaman, and he would go on to storm the Capitol in January.” Id. The video then cuts to someone at the event singing “where we go one, we go all.” Id. at 0:43-0:50. The voiceover then says, “‘Where we go one, we go all’: an infamous QAnon slogan promoted by Trump’s first National Security Advisor, Michael Flynn.” Id. at 0:51-0:58. At that point, the video cuts to the key clip. The clip is from the Flynns’ July 4 barbecue and was originally tweeted by Michael Flynn. Dkt. 212
13, 37, 39. It shows a row of six people raising their right hands. Dkt. 184-1 at 0:58-1:00. Standing toward the middle of the group, Michael Flynn says, “Where we go one, we go all.” Id. Alongside Michael Flynn are Jack and Leslie, though they say nothing. Id. The video then returns to Q Con, and the voiceover continues, “And played as an anthem at this meeting of Trump supporters.” Id. at 1:01-1:03. The rest of the segment discusses President Trump’s refusal to disavow QAnon, the January 6 attack on the Capitol, and the QAnon movement more generally. Id. at 1:04-5:52. Neither Jack nor Leslie is shown or mentioned again. Finally, for nearly the whole segment, there is a headline-style chyron that reads, “CNN GOES INSIDE A GATHERING OF QANON FOLLOWERS.” Id. at 0:01-5:13. The Flynns originally had two claims: defamation per se and false light. Am. Compl., Dkt. 7. Before this case was reassigned to me, the Court dismissed the defamation claim but not the falselight claim. Dkt. 42. CNN has now moved for summary judgment on the false-light claim. LEGAL STANDARDS “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if a reasonable jury could find for either side. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is “material” if it could “affect the outcome.” Id. The Court views the record “in the light most favorable to the non-movant.” Williams v. MTA Bus Co., 44 F.4th 115, 126 (2d Cir. 2022) (cleaned up). But if the non-movant will bear the burden of proof on an issue at trial, it must point to some evidence supporting the “essential element[s]” of its position. Celotex Corp. v. Catrett, 477 U.S. 317, 323-26 (1986). Rhode Island’s invasion-of-privacy statute lays out the elements of its false-light claim: (a) Right to privacy created. It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include any of the following rights individually: … (4) The right to be secure from publicity that reasonably places another in a false light before the public; (i) In order to recover for violation of this right, it must be established that: (A) There has been some publication of a false or fictitious fact which implies an association which does not exist; (B) The association which has been published or implied would be objectionable to the ordinary reasonable man under the circumstances[.] 9 R.I. Gen. Laws Ann. §9-1-28.1(a). The statute also creates a private right of action. §9-1-28.1(b). This statute differs from the common-law tort in that (among other differences) it requires a “false or fictitious fact,” making the claim here more like defamation. Compare §9-1-28.1(a)(4)(i)(A), with Restatement (Second) of Torts §652E. In interpreting the statute, the Supreme Court of Rhode Island has imported many defamation doctrines, noting that plaintiffs should not be able to “evad[e] the limitations of a successful defamation action by using the alternate theory of a falselight claim.” Cullen v. Auclair, 809 A.2d 1107, 1112 (R.I. 2002). And it pulls many of those doctrines from the Second Restatement of Torts. See, e.g., id. Separately, this case involves potential liability for speech, so it implicates “a complex mixture of common-law rules and constitutional doctrines.” Cheng v. Neumann, 51 F.4th 438, 443 (1st Cir. 2022) (citation omitted). Below, the Court draws on all these sources. DISCUSSION “To recover under §9-1-28.1(a)(4), [a] plaintiff must establish that there has been some publication of a false or fictitious fact which implies an association which does not exist; and the association which has been published or implied would be objectionable to the ordinary reasonable man under the circumstances.” Cullen, 809 A.2d at 1112 (cleaned up). “[I]t is the responsibility of the court to determine as a matter of law whether a statement portrays an individual in a false light under §9-1-28.1(a)(4).” Id. That is, “the threshold determination of whether a statement is capable of bearing a defamatory meaning is for the court to decide, [and] the ultimate conclusion on whether such a meaning was indeed conveyed is for the jury to decide.” Healey v. New Eng. Newspapers, Inc., 520 A.2d 147, 150 (R.I. 1987) (citation omitted). “In determining whether a particular communication is capable of bearing a defamatory meaning,” the question “is what the person to whom the communication was published reasonably understood as the meaning intended to be expressed.” Budget Termite & Pest Control, Inc. v. Bousquet, 811 A.2d 1169, 1172 (R.I. 2002) (cleaned up). Here, the Flynns’ claim is that CNN called them “QAnon followers.” See Dkt. 197 at 18-21; Dkt. 221 at 1. Although CNN never overtly said that, a false fact may be implied. See McCann v. Shell Oil Co., 551 A.2d 696, 697-98 (R.I. 1988). The Court assumes without deciding that the video was capable of implying that the Flynns were QAnon followers. That implication, “once defined, is treated like a claim for direct defamation.” Cheng, 51 F.4th at 444; see also Biro v. Conde Nast, 883 F. Supp. 2d 441, 468-69 (S.D.N.Y. 2012). In other words, the Court will analyze the issue as if CNN called the Flynns “QAnon followers” explicitly. But determining “whether a communication is capable of bearing a particular meaning” is only the first step. Restatement (Second) of Torts §614(1)(b). It is still a matter for the Court to decide “whether that meaning is defamatory.” Id. It was not. Calling the Flynns “QAnon followers” was, in defamation law-speak, an opinion.1 And an opinion is “actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” Restatement (Second) of Torts §566.2 Put differently, “the dispositive inquiry here is…whether the challenged statement can reasonably be construed to be stating or implying [defamatory] facts about the [Flynns].” Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 148 (2d Cir. 2000).3 Here, the statement neither stated nor implied defamatory facts, so it is a nonactionable opinion. This conclusion is based on two independent — but mutually reinforcing — grounds.4 First, the statement is unverifiable. And second, it was a comment on disclosed, nondefamatory facts. Both characteristics ensure that the reasonable viewer understands that the statement is the speaker’s opinion (rather than stating facts) and that the speaker is not harboring additional, undisclosed facts to justify the statement. So Rhode Island law and the First Amendment demand its protection. I. The statement is an opinion A. Whether the Flynns are QAnon followers is unverifiable 1. Rhode Island law, the First Amendment, and public concern One type of opinion is an unverifiable statement. Under Rhode Island law, a statement is an opinion if it is “too imprecise and vague to be verifiable as either true or false.” Ferreira v. Child & Fam. Servs., 222 A.3d 69, 75 (R.I. 2019) (citation omitted). Under the First Amendment, too, “a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved.” Milkovich v. Lorain J. Co., 497 U.S. 1, 19-20 (1990).5 And under both, the burden is on the plaintiff to prove falsity. See Beattie v. Fleet Nat. Bank, 746 A.2d 717, 721 (R.I. 2000); Swerdlick v. Koch, 721 A.2d 849, 862 (R.I. 1998); Cullen, 809 A.2d at 1112-13; Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 778 (1986). Here, the statement was on matters of public concern. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (cleaned up). The target audience may be “narrow” so long as the speech “addresses matters that concern the public.” Heim v. Daniel, 81 F.4th 212, 228 (2d Cir. 2023). This “inclusive standard” aims to keep “debate on public issues…wide-open.” Id. at 228-29 (citation omitted). Speech “of only private concern” involves purely personal squabbles, internal business affairs, and the like. See Snyder, 562 U.S. at 453. Whether speech deals with matters of public concern is a “question of law that is determined by the content, form and context of a given statement, as revealed by the whole record.” Singh v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008) (internal quotation marks omitted). The speech here plainly fits the bill. QAnon itself is a topic of public concern, and the segment also reported on the connections between QAnon, January 6, and former president Trump. The Flynns acknowledge that the report as a whole was on matters of public concern. Dkt. 197 at 25-26. They argue that including them in the report did not “further[]” any “ legitimate public interest” because (1) they are not public figures and (2) “the clip does not relate to the public concern that is the subject of the Report.” Id. The first argument misunderstands the law. The public-figure and public-concern tests have little to do with each other. Compare Lerman v. Flynt Distrib. Co., 745 F.2d 123, 137 (2d Cir. 1984), with Snyder, 562 U.S. at 453. And the second argument fails because it presumes the Flynns’ favored conclusion on the merits. Connections between QAnon and those in power were the core public concern addressed by the report. The clip of Michael Flynn — President Trump’s first National Security Advisor — saying a phrase associated with QAnon certainly addresses that concern, even if the Flynns think it was totally innocent.6 The Flynns’ argument boils down to the idea that including them wasn’t integral to the report. See Dkt. 197 at 28 (arguing that CNN should’ve “blur[red] out Jack and Leslie’s images like MSNBC did”). But this argument operates at the wrong level of generality. The question is whether the speech “addresses matters that concern the public,” not whether the particular method of doing so had broad public or persuasive appeal. Heim, 81 F.4th at 228. In Snyder, the Supreme Court focused on “the fact that the overall thrust and dominant theme of [the speech] spoke to broader public issues,” “even if a few of the signs…were viewed as containing messages related to [the plaintiffs and their family] specifically.” 562 U.S. at 454. So too here. And even if the report needed to justify including the Flynns, it could. They are Michael Flynn’s family members, and they were defending him in the court of public opinion while also fundraising for his defense in a court of law. See, e.g., Dkt. 212
