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Azerbaijan is very upset about a June 5 report on CNN that Israeli troops had used the country as a staging area for attacks on Iran. The country’s government says that the report, based on anonymous sources, is both
completely wrong and dangerous, as it risks drawing Azerbaijan into the conflict.
In this situation, most governments would issue a condemnatory statement and leave it at that. But Azerbaijan has gone a step farther, filing a defamation suit against CNN in Delaware last week. CNN’s response: “We stand by our reporting.”
The complaint acknowledges that this situation is unusual, and admits that the First Amendment gives Americans the right to criticize their own government without fear of liability. But, it argues that the same logic does not apply to a foreign government, “which is not accountable to the American electorate.”
To bring the case, Azerbaijan hired Wayne Dennison, a partner at Brown Rudnick who is best known for his work as part of Johnny Depp’s legal team in the case against Amber Heard.
In an interview, Dennison defended the suit, saying that his client is entitled to recourse for reckless reporting. “These untrue statements actually put lives at risk,” he said.
This interview has been lightly edited for length and clarity.
It would have been news to me that a foreign government would even think about suing for defamation, or that it would have standing to do that. How is that possible?
It’s long been clear that foreign sovereigns have the right to use the U.S. courts to redress harms that have been addressed to them. That’s a fundamental portion of the jurisdiction of our federal courts, and foreign governments have the opportunity to do this. With respect to this case in particular, what we’ve what we’ve looked at is we have a U.S. entity, CNN, engaged in activities that we think are improper and ultimately tortious. And the way in which this government will bring CNN to justice and ultimately to the table is to sue on CNN’s home court. Why’d you bring suit in the U. S.? Because that’s where the defendant is.
From the journalism standpoint, obviously there’s a total right to criticize the United States government embedded in the Constitution, right? And I would think that U.S. citizens would also have pretty wide latitude in terms of criticizing foreign governments, too.
We’re not talking about criticism. What we’re talking about are direct, factual statements that relate absolutely to an ongoing war. CNN is making statements relative to my clients’ activities in a war that my clients absolutely unequivocally say are untrue. And the result of these untrue statements actually put lives at risk. I know you phrase this in terms of “criticism.” We’re not talking about criticism. What we’re talking about here are statements that — literally the way CNN attributes this is “somebody said,” right? They say “We have an unnamed source.” That is literally nothing more than “somebody said.” And frankly, if what they had reported was “Iranian officials say this,” or “Iran has taken the position that this occurred.” OK, then readers can assess for themselves whether these people are being truthful. But what we have is a report that is nothing other than “somebody said,” and I don’t think you ought to have the umbrella of the First Amendment to protect you from, “Hey, I heard this thing,” especially when you’re in a situation where people may die.
In order to pursue this case, would you have to go get discovery from CNN — like, basically, “Tell me who your sources are.”
That may very well be where this ends up. And candidly, part of what you’re talking about here has always been one of the lesser holdings of New York Times v. Sullivan. And I think New York Times v. Sullivan has had some significant questions raised with respect to its continued viability, and this is a Supreme Court that seems far less interested in stare decisis than previous courts.
You think there’s an openness to allowing some government claim of defamation, despite what New York Times v. Sullivan says about that.
It’s not the only claim. There’s a prima-facie tort allegation under Delaware law. But the ultimate issue is that we very much expect to be able to go forward and to allege that if your sole reliance as a news organization is on an argument that “somebody said” — and the reporter, with respect to this, has a known history of anti-Azerbaijani reporting — that maybe you got to do a little more, as a news organization.
I hear your argument. I would wonder about a chilling effect. Think of foreign dissidents coming to the U.S. and speaking out against their home government. If Iran can come into U.S. courts and sue people who criticize its government, even if what they say is ridiculous and false, it feels like opening a door that you might not want to open.
Yeah, and again, I understand the use of the word “criticism.” They made a factual statement that we believe to be — and we believe we can prove to be — untrue. And it’s a factual statement that literally throws an entire country in the middle of a war. At some point, whatever the issue is, you got to look up and say, “Hey, I got to get this right.” I don’t know how to look at it any other way.
If this gets to trial, you will have to show somehow that, in fact, Israeli troops were not staged in Azerbaijan.
I assume that they are going to raise as a defense, truth, because that’s a complete defense to defamation. We will then establish that what they reported was untrue, which in fact it was untrue.
You spoke about the peril here. But in terms of the harm suffered, is there a way to quantify the harm to the government of Azerbaijan in terms of dollars from this report?
We haven’t made a damages estimate. And candidly, as we proceed, it’s unclear what the damages are going to be. The damages have been very, very significant in terms of international relations. But I can’t tell you to the dollar what the ultimate number is going to be. Frankly, one of the things that we have asked repeatedly from CNN, including in the complaint, is to simply retract the article. And thus far, that that’s been met with either silence or resistance.
