WASHINGTON (CN) — A D.C. Circuit panel heard arguments Thursday from a right-wing online commentator, an investigative journalist and National Public Radio, over the commentator's claims that he was wrongly linked to spreading conspiracy theories surrounding the death of a Democratic National Committee staffer during the 2016 presidential campaign.
Matt Couch brought his initial suit against Michael Isikoff, the chief investigative reporter for Yahoo News, over his podcast series “ConspiracyLand,” which focused on the fringe theory that Hillary Clinton had ordered the killing of Seth Rich.
Eden Quainton, Couch’s attorney, claimed in his appellate brief that Isikoff had tried to paint his client as the “villainous face of the threat to democracy created by online misinformation” and the poster child for the “post-truth era.”
The sixth and final episode in the series focused on Couch and his claims that Aaron Rich, Seth’s brother, had worked with Seth Rich to steal internal DNC emails and sell them to WikiLeaks, then tried to cover up the story after the fact.
“The extreme statements and actions attributed to Couch were not based in reality but were conjured up, in reckless disregard of the truth, in service of a narrative desire to ‘tag’ someone with responsibility for harmful speech and conduct,” Quainton wrote. “Ultimately, Couch was used for the very thing of which he was accused: to drive clicks and profit in reckless disregard of the truth of the statements.”
Arguing before a three-judge panel on Thursday, Quainton said the core questions were whether Isikoff had acted with actual malice and whether U.S. District Judge Richard Leon, a George W. Bush appointee, set a bad standard by requiring clear and convincing evidence that Isikoff knew he was wrong in linking Couch to the conspiracy theory at the outset of the case.
“The question is not what the plaintiff needs to show, but what plaintiff needs to allege to raise a reasonable inference,” Quainton said.
He offered a three-step analysis a plaintiff can offer: “Denial plus, editorial decision making and context.”
Quainton defined “denial plus” as when a plaintiff in a defamation case who is a limited public figure, like Couch and his account with over 667,000 followers on X, formerly Twitter, denies an allegation about their speech and has an extensive public record of their statements that the allegations can be compared to.
He further explained that editorial decisionmaking and context contributes to how a plaintiff is framed within a story, including preceding and subsequent quotes and paragraphs that don’t directly address the individual but position them within a narrative.
The three-judge panel, made up of U.S. Circuit Judges Cornelia Pillard, Justin Walker and Bradley Garcia, seemed hesitant to accept the analysis, particularly how Quainton seemed to hold Isikoff solely responsible for his sources’ quotes in the podcast.
“What is wrong with Isikoff reasonably crediting [Mark] Mueller’s report that Couch was one of the people involved?” asked Pillard, a Barack Obama appointee. Mueller, a neighbor of Seth Rich, was the first person on the scene when Rich was killed.
Mueller — no relation to former special counsel Robert Mueller in charge of the Russia investigation — called Couch his “chief tormentor” and had accused him of involvement in Rich’s death, according to Isikoff’s reporting.
Jean-Paul Jassy, an attorney of firm Jassy Vick Carolan representing Isikoff, argued Quainton’s arguments were “coming at the appeal from the wrong direction" by suggesting it was the defendant’s duty to disprove actual malice, and not up to the plaintiff to bring reasonable claims of such wrongdoing.
Jassy added that there was no malice to prove on Isikoff’s part, as he had no reason to believe Mueller was lying during their interview, as he was providing a first-person account of his own experiences.
Matthew Kelley, an attorney of Ballard Spahr representing NPR, said that his client’s involvement was “extenuated,” as Couch’s claims against the outlet derived from a single radio interview featuring Isikoff about his podcast, and was not accused of harboring any malice in broadcasting the interview.
Couch was previously involved in a lawsuit brought by Aaron Rich in 2018, along with fellow right-wing activist Ed Butowsky and the Washington Times, which resulted in a settlement and Couch issuing an apology to Rich for his involvement in spreading the theories.
“Today we retract and disavow our statements and we offer our apology to Mr. Rich and his family,” Couch said in a video posting after the settlement in 2021. “I take full responsibility for my actions.”
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