In granting summary judgment in favor of Dr. Amin, Judge Wood wrote:
Multiple statements are verifiably false. The undisputed evidence has established that: (1) there were no mass hysterectomies or high numbers of hysterectomies at the facility; (2) Dr. Amin performed only two hysterectomies on female detainees from the ICDC; and (3) Dr. Amin is not a “uterus collector.” The Court must look to each of the statements in the context of the entire broadcast or social media post to assess the construction placed upon it by the average viewer. Doing so, the undisputed evidence establishes that multiple NBC statements are false.
The Court emphasized that “it does not matter that NBC did not make these accusations directly, but only republished the whistleblower letter’s allegations. If accusations against a plaintiff are “based entirely on hearsay,” “[t]he fact that the charges made were based upon hearsay in no manner relieves the defendant of liability. Charges based upon hearsay are the equivalent in law to direct charges.”
That can be a chilling standard for the media, which often reports on the fact of allegations that are newsworthy. However, Judge Wood said that NBC went well beyond such a role in this case:
…the focus of these three broadcasts was not on unnecessary or unconsented-to “medical procedures.” The focus was on “mass hysterectomies” and “high numbers of hysterectomies,” performed without necessity and consent, at the facility. This is reinforced by MSNBC’s own headlines: “WHISTLEBLOWER: HIGH NUMBER OF HYSTERECTOMIES AT ICE DETENTION CTR.” and “COMPLAINT: MASS HYSTERECTOMIES PERFORMED ON WOMEN AT ICE FACILITY.”
The court noted that “[w]hile opinions and hyperbole are typically non-actionable, they become actionable when they are capable of being proved false.” That includes MSNBC referring to Dr. Amin as someone known to be a “uterus collector” and “taking everybody’s stuff out” state facts that can be proved false. Judge Wood held that “[t]hese statements are not mere subjective assessments of Plaintiff over which reasonable minds could differ. They are also not simply rhetorical hyperbole or obviously exaggerated statements that are unprovable…”
Under Georgia law, the court held that this met the “actual malice” standard. What makes the case particularly damaging is the use of MSNBC’s own hosts, lawyers, and fact-checkers to show knowingly false or reckless publication:
Plaintiff has presented evidence that NBC’s statements were inherently implausible. The allegations that there were “mass hysterectomies,” Plaintiff was a “uterus collector” or collected uteri, Plaintiff performed hysterectomies “for which no medical indication existed,” and that Plaintiff performed hysterectomies on all or nearly all his patients are so implausible that a jury could infer actual malice. The implausibility of these statements is clear, given that NBC found evidence of only two hysterectomies. NBC’s investigation did not yield evidence of more than two hysterectomies. Wooten told NBC she did not know how many women had had hysterectomies.
An attorney source, Sarah Owings, told NBC that her team was not finding evidence of mass hysterectomies. Another attorney source, Ben Osorio, told NBC that one client had had a hysterectomy that medical records revealed was medically necessary and another client believed she had had a hysterectomy, but no evidence supported this claim. NBC’s own reporter, Julia Ainsley, reinforced these facts when she texted her colleague: “But only two hysterectomies?” The attorney who told NBC that there were more than two hysterectomies, Andrew Free, also told NBC that those reports had not been confirmed and were still being vetted. Free even explicitly told NBC that he could confirm only one hysterectomy.
Nevertheless, NBC published statements that Plaintiff performed mass hysterectomies. Although NBC’s own sources told it that there was evidence of only one hysterectomy, NBC stated as fact: “five different women … had a hysterectomy done”; “as many as 15 immigrant women were given full or partial hysterectomies”; and “[e]verybody this doctor sees has a hysterectomy, just about everybody.” These statements contradict information known to NBC at the time of reporting. The same applies to the accusations that Plaintiff was a “uterus collector” or that detainees referred to him as such. Aside from Wooten’s allegation, NBC lacked any evidence that could support the accusation that Plaintiff collected uteri or was known as the “uterus collector” at the ICDC. A jury could conclude that NBC knew these allegations were false.
Plaintiff has presented evidence that there were obvious reasons to doubt Wooten’s reliability, credibility, and accuracy. In her interview with NBC, Wooten could not name Plaintiff, did not know what happened when detainees visited Plaintiff, and did not know how many women had received gynecological procedures, even acknowledged this herself. Wooten could not provide a number for how many women she had spoken to about gynecological care at the facility. She told NBC that she had spoken to “several women” in the eight years she worked at the ICDC. In essence, Wooten could provide only hearsay evidence to support her allegations. NBC’s reporter, Jacob Soboroff, texted his colleague that one source had “heard mixed things about Wooten.” NBC’s deputy head of Standards was critical of Wooten because she “provide[d] no evidence to back up her claims,” had “no direct knowledge of what she’s claiming,” and she could not “name the doctor involved.”
MSNBC’s hosts also voiced concerns over Wooten’s reliability. Rachel Maddow believed Wooten’s whistleblower letter jumped to conclusions and “didn’t want to assume it’s true.” Chris Hayes also criticized Wooten’s letter because it was based on secondhand information and Wooten had “no factual, firsthand knowledge.” Not only did NBC have reasons to doubt Wooten, but NBC actually doubted her.
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Here, there is evidence of just that. The deputy head of NBC’s Standards, Chris Scholl, said that the whistleblower letter “boils down to a single source—with an agenda—telling us things we have no basis to believe are true.” He also later said that Wooten “has a beef” and “a whole separate agenda.” As detailed above, Scholl interspersed these observations of Wooten’s bias with doubts about the truth of Wooten’s story. While only a jury can determine whether Wooten was a credible or believable source, Plaintiff has submitted sufficient evidence that would enable a jury to find that she was not….
The court also details how top executives ran the story despite their own reservations.
Chris Scholl approved the initial news article written by Ainsley and Soboroff. He also worked on MSNBC’s broadcasts of the statements. As detailed above, Scholl expressed concerns over the veracity of the statements. He pointed out the lack of evidence to support the accusations, doubted Wooten as a credible source, and said that NBC had been unable to verify the accusations. Scholl even explicitly stated: “We don’t know the truth.” A jury could determine that Scholl expressed serious doubts.
Judge Wood notes that Maddow “is responsible for the content of her show,” but ran the story despite expressing the fact that she had “serious doubt” about the account of the whistleblower.
She also noted that Hayes said that the story went viral because it recalled Nazi Germany or the Jim Crow South, but, in reality, that was “not the case here.”
While the court acknowledges that NBC could well convince a jury at trial, he held:
Plaintiff has presented sufficient evidence that could enable a jury to find actual malice. A jury could also conclude that NBC did not act with actual malice given the evidence that it published opposing information. This duel of conflicting evidence must be resolved by a jury….