(3D graphics image by Quince Creative)
Looks like Dan Bongino’s fake defamation suit against The Daily Beast is about to cost him some real cash after U.S. District Judge for the Southern District of Florida Jose Martinez dismissed the case and imposed SLAPP fees on the gun-loving media star.
Bongino sued the site in December over a story by reporter Lachlan Markey which noted that the now-defunct NRATV had “dropped” him from its lineup. According to the batguano complaint, readers could only conclude that Bongino been fired, which was defamation per se because it implied “unfitness to perform the duties of an office or employment for profit, or the want of integrity in the discharge of the duties of such office or employment.” This caused the well-known snowflake-hater “pain, embarrassment, humiliation, mental suffering,” for which the only remedy was $15 million.
So Bongino hired Steven Biss, the libelslander lawyer currently representing Rep. Devin Nunes in his various suits against every media outlet in the country and also a Twitter cow.
Biss isn’t barred in Florida, or anywhere in the 11th Circuit, and it shows. He failed to serve written notice on the media outlet five days in advance of filing, as required under Florida law, and then argued bizarrely that the court was forbidden to look at the postmark establishing the date of service when considering a motion for summary judgement.
He disregarded Florida’s single publication doctrine which prohibits recovering twice for the same published statement, i.e. once for defamation and once for commercial disparagement; he ignored 11th Circuit precedent barring shotgun pleadings which “contain[] several counts, each one incorporating by reference the allegations of its predecessors [i.e., predecessor counts], leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.”; and he bungled Florida’s commercial disparagement statute in a laughable attempt to convert the Beast article into commercial speech.
But other than that, NAILED IT. Or, as Judge Martinez put it, “Nonetheless, because the Court is able to discern the basis of the Complaint, the Court will proceed on the merits.”
Sadly, the court was just as unimpressed with the substance of Bongino’s case as it was with the procedure. The entire suit rests on a claim that the Beast defamed Bongino by implying that he was fired. Except, as Judge Martinez notes, that never happened.
Here, even a cursory review reveals that nowhere in the article does it state that Plaintiff was fired—much less that he was fired for cause. The article merely states that NRATV “dropped” Plaintiff from its lineup of conservative commentators. And as Plaintiff concedes, this is in fact true.
Indeed, the article’s subheading explains that NRATV was “downsizing” and Plaintiff’s show was “a casualty of those plans.” The article even reflects that NRATV made “every effort to retain [Bongino].” Such reporting is a far cry from stating that Plaintiff was fired for anything other than corporate downsizing. [Internal citations omitted.]
So, no defamation, no defamatory gist, no defamation per se, no defamation per quod, no defamation by implication, no commercial disparagement and no $15 million.
And unless Biss can come up with a colorable argument in the next two weeks explaining how First Amendment-protected, non-commercial speech can trigger liability under Florida’s commercial disparagement statute, Bongino is shit outta luck. Because Judge Martinez ruled that Florida’s SLAPP law does not conflict with the Federal Rules, and thus the Beast’s legal fees are shifted to the plaintiff.
Ah, well. When life gives you lemons …
Pretty weird that NRATV folded with primo content like that! But don’t dare say that only a deranged lunatic makes lemonade that way, or Dan Bongino will sue you for commercial disparagement and hurting his tender feefees.
Order Granting Defendant’s Motion to Dismiss [Dan Bongino v. The Daily Beast Company, LLC, Case 2:19-cv-14472-JEM (S. D. Fl. August 6, 2020)]
Elizabeth Dye lives in Baltimore where she writes about law and politics.