Prince v. The Intercept

1

ERIK PRINCE, Plaintiff, v. THE INTERCEPT, et al., Defendants.

No. 21-CV-10075 (LAP)

United States District Court, S.D. New York

July 12, 2023

OPINION & ORDER

LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE

Before the Court is Defendants First Look Media Works, Inc. n/k/a First Look Institute, Inc. (“First Look”) and Matthew Cole's (together, the “First Look Defendants” or “Defendants”) second motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and New York's “anti-strategic litigation against public participation” (“anti-SLAPP”) statute, New York Civil Rights Law § 76-a.^[1] Plaintiff Erik Prince opposes the motion.^[2] For the reasons stated below Defendants' motion to dismiss is GRANTED.

I. Procedural History

Plaintiff filed suit against Defendants in this District on November 24, 2021, asserting claims for defamation per se and defamation per quod. (See dkt. no. 1.) The First Look Defendants moved to dismiss Plaintiff's complaint for failure to state a claim on February 11, 2022. (See dkt. no. 15.) Plaintiff opposed, (see dkt. no. 29), and on October 6, 2022, the Court filed an opinion resolving Defendants' motion, (see dkt. no. 38 (“October 2022 Op.”)).

In the October 2022 Op., the Court found that Plaintiff is a limited-purpose public figure. (Id. at 38.) Thus, for Plaintiff to plead defamation properly under New York law, he had to allege plausibly that Defendants acted with actual malice. (Id.) On this point, the Court held that Plaintiffs' “nonconclusory allegations against Defendants d[id] not raise a plausible inference of actual malice,” (id. at 46), and dismissed Plaintiffs' complaint while granting leave to amend, (id. at 48-50). On November 7, 2022, Plaintiff filed his Amended Complaint, (see dkt. no. 39 (“AC”)), and on November 21, 2022, Defendants filed their second motion to dismiss.

In the October 2022 Op., the Court found the following actual malice allegations were insufficient to meet the plausibility pleading standard. “Defendants (1) relied entirely on anonymous sources; (2) failed to include information regarding their anonymous sources in violation of

The Intercept's policies and procedures; (3) deliberately avoided the truth because Plaintiff's counsel denied Defendants' allegations, and Defendants refused to engage with Plaintiff by providing additional details regarding their allegations; and (4) harbored a political bias against Plaintiff.” (See October 2022 Op. at 42 (citations omitted).) In his AC, Plaintiff attempts to allege new facts to support the plausible inference that Defendants' actions meet the actual malice standard.

II. Factual Background^[3]

A. The Parties

This action was initiated by Plaintiff Erik Prince, an American businessman and former U.S. Navy SEAL officer who gained notoriety for founding the private military company Blackwater and who served as an executive Director and Vice Chairman of Frontier Services Group, which provides “integrated security, logistics, insurance, and infrastructure services for clients operating in frontier markets.” (AC ¶ 13.) Plaintiff is also well-known for his involvement in politics, particularly in the Trump administration. (See October 2022 Op. at 3.)

In this action, Plaintiff has sued Defendant First Look, a media company, founded by Pierre Omidyar (founder of eBay), that owns and operates the online nonprofit news publication The Intercept, (AC ¶ 26), and Defendant Matthew Cole, a national security reporter for The Intercept who Plaintiff alleges coauthored the article that is the basis for Plaintiff's defamation claim, (id. ¶ 16). The Intercept is funded by Mr. Omidyar and reader donations. (Id. ¶¶ 26, 30-31.)

B. The Alleged Defamation

Plaintiff claims that an August 13, 2020 article (dkt. no. 17-1, the “Article”), coauthored by Cole and published by The Intercept, defamed Plaintiff by portraying him as meeting “‘with a top official of Russia's Wagner Group^[4] and offer[ing] his mercenary forces to support the firm's operations in Libya and Mozambique.'” (AC ¶ 4.) Specifically, Plaintiff alleges that Defendants published seven defamatory statements of fact in the Article, including that Plaintiff:

a. “Offered Lethal Services To Sanctioned Russian Mercenary Firm Wagner;”

b. “sought in recent months to provide military services to a sanctioned Russian mercenary firm in at least two African conflicts;” c. “met earlier this year with a top official of Russia's Wagner Group;”

d. “met with Wagner leadership;”

e. “offered his mercenary forces to support the [Wagner Group's] operations in Libya and Mozambique;”

f. sought to assist the Russian military by providing “a force in Mozambique;” and

g. “sent a proposal to the Russian firm offering to supply a ground force as well as aviation-based surveillance.”

(Id. ¶ 66.)

Plaintiff alleges that he never: (1) met with “any representative of the Wagner Group;” (2) “offered his services to support the Wagner Group's operations in Libya and Mozambique;” or (3) “sent Wagner Group a proposal to offer his services” in Libya and Mozambique. (Id. ¶ 70.) Plaintiff also denies “caus[ing] any third party to meet with or submit a proposal to the Wagner Group on his behalf.” (Id.) Because Plaintiff's counsel told Cole that Plaintiff did not meet with representatives of the Wagner Group prior to the Article's publication, Plaintiff contends that Defendants published the statements with knowledge of their falsity. (Id. ¶¶ 82-86.) Defendants included Plaintiff's denial in the Article. (See Article at 2.) Rather than engage with Plaintiff about the details of their allegations, Plaintiff alleges that Defendants published each of the disputed statements based on anonymous sources. (AC ¶¶ 82-88.)

Plaintiff contends that the Article accuses him of being “a criminal and disloyal to his nation” by claiming that he “engaged in illegal conduct and violated U.S. and U.N. sanctions and U.S. arms trafficking regulations by allegedly soliciting business from Wagner Group.” (Id. ¶ 116.) These allegations have allegedly caused substantial harm and special damages to Plaintiff in the form of, among other things, monetary loss, injury to reputation and good will, and loss of profits. (Id. ¶ 117.) The Article was subsequently republished by news outlets including, but not limited to, the Daily Beast, The Intellectualist, and The Moscow Times. (Id. ¶¶ 90-95.)

C. Factual Allegations of Actual Malice

Plaintiff asserts that his AC “cures any deficiency” that the Court found in his original complaint by “including extensive additional factual material about Defendants' bias and political agenda, and its knowing reporting of false information about Mr. Prince.” (Pl. Opp. at 1.) Regarding actual malice, Plaintiff alleges that Defendants' publishing the Article was part of a “concerted effort” to discredit him by “publishing false or misleading statements about him and his business in The Intercept in order to boost The Intercept's readership, appease its leadership's well-documented dislike of Mr. Prince, gain notoriety, and profit at Mr. Prince's expense.” (AC ¶ 1.)^[5]

i. Allegations of “Reckless and Biased Journalism” at The Intercept

Plaintiff alleges that The Intercept “has a history of reckless and biased journalism” and “knowingly and recklessly cultivated a culture that rejects accountability for bad journalism.” (Id. ¶¶ 32, 35.) To support this allegation, Plaintiff alleges that in 2016, a journalist at The Intercept engaged in a “pattern of deception” that required The Intercept to correct five stories and retract one. (Id. ¶ 32.) Plaintiff also alleges that in 2017, The Intercept and Cole sent a document provided by one of their sources to the NSA for identification, resulting in the source's arrest and incarceration. (Id. ¶ 33.) Plaintiff alleges that Laura Poitras, an Intercept co-founder, was fired two weeks after she publicly criticized The Intercept's failure to protect its source. (Id. ¶ 35.) Plaintiff quotes Poitras as saying that Betsy Reed, The Intercept's editor-in-chief at the time the Article was published, oversaw the reporting on the NSA leak, directed the investigation into The Intercept's failure to protect its source, and removed a staff person from the investigation when the facts suggested that editorial failures were responsible for the failure. (Id.)

Plaintiff makes several allegations regarding The Intercept's bias toward the political left. Plaintiff begins by detailing Omidyar's political donations and statements against Donald Trump and his connections to the Democratic Party. (Id. ¶¶ 27-28.) As further evidence of bias, Plaintiff points to comments made by Glenn Greenwald, another Intercept co-founder, who said he resigned because The Intercept censored an article he wrote that was critical of President Biden. (Id. ¶ 36.) Greenwald blamed The Intercept's failure to protect its source in the NSA story and the censuring of his article on Intercept editors' “overarching need to secure the approval and admiration of” mainstream media outlets and liberal political interests. (Id. ¶¶ 34, 37.)

ii. Allegations of The Intercept's Bias Against Plaintiff

Plaintiff alleges that Defendants defamed him due to the bias that both Cole and Jeremy Scahill, The Intercept's sole remaining co-founder, have against him. (AC ¶ 8.) First, Plaintiff alleges that The Intercept has had a “history of false reporting” against him, citing “over a dozen inaccurate stories” published between 2014 and the present, “almost all” of which were written by Cole and Scahill. (Id. ¶¶ 42-43.) Plaintiff goes on to share a list of quotes from these articles that he alleges are false or not accurate. (Id. ¶¶ 44-52.)

Second Plaintiff alleges that Scahill “constantly”...