from the does-the-vampire-squid-have-a-lawyer? dept
Perhaps Matt Taibbi’s most famous bit of writing ever was his takedown of Goldman Sachs in Rolling Stone (and then in a book that followed) that opened with the highly evocative metaphor:
The world’s most powerful investment bank is a great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money.
Even now, if you ask anyone about Taibbi’s writing, the phrase “great vampire squid”* is probably the most likely response.
* For what it’s worth, contrary to the what you might think given the name, vampire squids are (1) not actually squids, (2) not bloodsucking as they’re actually described as gentle scavengers, and (3) pretty small.
So, a question: how do you think that Matt Taibbi (who claims to be a giant free speech supporter) would react if Goldman Sachs had sued him back then claiming that they were not, literally, a cephalopod?
I think he would have been rightly outraged at the abuse of the courts to attack his free speech for his use of a metaphor.
So it was pretty shocking back in January when Taibbi sued author Eoin Higgins over his (excellent) book, Owned: How Tech Billionaires on the Right Bought the Loudest Voices on the Left. The crux of Taibbi’s argument was that he wasn’t literally “owned” by billionaires, and thus it was defamatory:
The Book’s title and subtitle “Owned: How Tech Billionaires on the Right Bought the Loudest Voices on the Left” falsely state that Plaintiff was “owned” and “bought” by billionaires.
Even more ridiculously, Taibbi took to the pages of Bari Weiss and David Ellison’s The Free Press to claim that he was suing a journalist for his reporting “to protect free speech.”
Yeah, sure man, whatever you have to tell yourself to sleep at night.
But, no, vexatious SLAPP suits don’t protect free speech; they do the exact opposite. Higgins wrote a thorough and sharp critique of how a bunch of people, like Taibbi, who had been formerly associated with left-leaning views, seemed in recent years to have drifted sharply rightward — frequently with the financial and institutional backing of right-wing tech billionaires.
Taibbi’s lawsuit was weak from the start, repeatedly insisting that obviously metaphorical statements were defamatory because he wasn’t literally “owned” or that he didn’t make that much money by cozying up to Elon Musk with his ridiculously misleading Twitter Files. Even Taibbi’s amended complaint was laughably bad, whining that because he took no direct payments or “financial inducement” from Elon Musk, that it was unfair to associate him with Elon Musk. This despite Taibbi getting the first exclusive batch of internal Twitter documents, which he did discuss on Twitter (this is pre-X) but absolutely used to burnish his own reputation and that of his Substack newsletter.
Thankfully, Higgins and his publisher, Bold Type Books (a Hachette imprint) had strong representation: Elizabeth McNamara and Leena Charlton from Davis Wright Tremaine — McNamara in particular is well known in media and First Amendment circles as one of the best in the business — and the court has issued a pretty quick and pretty thorough dismissal of the case.
Over and over again, the judge, George B. Daniels, patiently explains to Taibbi that metaphors and opinion are not defamatory. Which, you know, is the kind of thing you’d hope a famous writer like Taibbi would have understood already. Alas.
The Book’s Cover and Jacket
None of the statements Plaintiff identifies on the Book’s cover and jacket, standing alone, are actionable. Statements 1 and 2, the words “Owned” and “Bought” on the Book’s front cover, are susceptible to both literal and metaphorical meanings depending on the surrounding context. Plaintiff acknowledges, however, that the contents of the Book cannot support a literal reading, stating that the “[t]he Book contains no evidence of any financial transaction, payment, contract, or quid pro quo involving Plaintiff.” (Opp. at 4.) In this context, “Owned” and “Bought” naturally read as attention-grabbing rhetoric used to signify Higgin’s opinions and the Book’s conclusions. Aside from the scattered words and phrases discussed below, Plaintiff does not dispute the accuracy of the vast majority of the Book’s factual content that informs these views or point to language suggesting the opinions are based on facts other than those disclosed in the book. See Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (noting that “hypothesis or conjecture… may yet be actionable if they imply that the speaker’s opinion is based on the speaker’s knowledge of facts that are not disclosed to the reader”). Plaintiff may not like Higgins’s subjective conclusions, or agree with their accuracy, but that does not make them actionable defamation.
And for all of Taibbi’s “but Elon didn’t give me any money!” whining, that doesn’t matter. That’s not how defamation law works. Because if it did work that way lots of journalists wouldn’t be able to report on anything, for fear of vexatious SLAPP suits like the one Taibbi filed. As the judge explains:
Statement 3, that Plaintiff was in “the snug patronage of billionaires,” is also a nonactionable opinion. Just like “Owned” and “Bought,” the language “snug patronage” does not have a readily understood precise meaning, so there is no way for a reader to determine whether the statement is true or false. The statement also appears as a reviewer comment on the back cover under the heading “Praise for Owned.” From this context, a reader would likely intuit this statement as an opinion of the reviewer, supported by the facts disclosed in the Book, and not a statement of fact about Plaintiff. See Hammer v. Amazon.com, 392 F. Supp. 2d 423, 431 (E.D.N.Y. 2005) (“[T]he average person understands that [book reviews] are the reviewer’s interpretation and not ‘objectively verifiable’ false statements of facts.” (quoting Hammer v. Trendl, No. CV 02- 2462 (ADS), 2003 WL 21466686, at *3 (E.D.N.Y. Jan. 18, 2003)).
Rhetorical statements and opinions cannot be defamatory. Just like calling Goldman Sachs a vampire squid couldn’t be. Just like saying you’re someone’s “crony.” Incredibly, there was even an earlier ruling in the very same district specifically on whether or not calling someone a crony was defamatory. A good lawyer would have known that before suing over the word “crony.”
Statement 4 is a passage from the Book’s left flap that states that Plaintiff was one of the right-wing technology billionaires “cronies.” (Am. Compl. 20.) Courts in this district have previously held that calling someone a “crony,” without more, is nonactionable rhetorical hyperbole. See Cassava Scis., Inc. v. Heilbut, 2024 WL 553806, at *5 (S.D.N.Y. Jan. 5, 2024), report and recommendation adopted sub nom. Cassava Scis., Inc. v. Bredt, 2024 WL 1347362 (S.D.N.Y. Mar. 28, 2024) (holding that a presentation which labeled individuals as “cronies” was nonactionable opinion); cf. Biro, 883 F. Supp. 2d at 463 (“[T]he use of the terms ‘shyster,’ ‘con man,’ and finding an ‘easy mark’ is the type of ‘rhetorical hyperbole’ and ‘imaginative expression’ that is typically understood as a statement of opinion.”) (internal citation omitted). The same is true here. The assertion that Plaintiff is a billionaire’s crony is the sort of excessive, unverifiable language that signals to a reasonable reader that they are reading the speaker’s opinion, and not a statement of fact.
Also a fail: claiming that more general statements not directly about Taibbi could be defamatory about Taibbi. In this case, Taibbi claimed that Higgins book flap saying that the book “follows the money, names names” is somehow defamatory to Taibbi, despite not being directly about him. Again, making claims about general statements like that is a hallmark of vexatious, speech-suppressing SLAPP suits. As the judge notes:
Statement 5 also appears on the left flap and states that the Book “follows the money, names names,” and is a “biting expose of journalistic greed.” (Am. Compl. 24-25.) Plaintiff alleges that “follows the money” and “names names” “represents to readers that the author has traced actual financial relationships and identified specific recipients of improper payments or patronage.” (Id.24.) “In New York, a plaintiff cannot sustain a libel claim if the allegedly defamatory statement is not ‘of and concerning plaintiff but rather only speaks about a group of which the plaintiff is a member.” Chau, 771 F.3d at 129 (internal citation omitted). Statement 5 does not indicate that it is “of and concerning” Plaintiff it describes Higgins’s investigative process for all the Book’s subjects, not only Plaintiff. A reasonable reader would, therefore, not interpret “follows the money” and “names names” as a false statement of fact about Plaintiff.
It’s also not defamatory (and obviously opinion) to call someone “greedy.” You would think that the author of a supposed exposé on Goldman Freaking Sachs would know that. Alas. The judge has to explain it to Taibbi.
Statement 6 states that the Book is an “exposé of journalistic greed,” which Plaintiff alleges “asserts professional dishonesty and unethical conduct.” (Id. 25.) But whether someone is motivated out of greed or ambition is a subjective determination that is not capable of being proven true or false. See Rosa v. Eaton, No. 23 CIV. 6087 (DEH), 2024 WL 3161853 (S.D.N.Y. June 25, 2024) (“[C]ourts have recognized that words like… ‘greedy crooks’ are vague, imprecise statements of hyperbole considered nonactionable opinion.”) Further, the context surrounding the statement, including its placement on the left flap of the Book’s cover, clearly implies that the facts on which this opinion is based can be found within the Book. Cf. Graham v. UMG Recordings, Inc., 806 F. Supp. 3d 454 (S.D.N.Y. 2025) (holding that an album’s cover art shares the same overall context as the recording itself because the cover is “designed to reinforce the message of the [recording.” (internal citation and quotation marks omitted)).
As a kind of SLAPP Hail Mary, Taibbi’s lawyer had admitted that even if all of these statements were protected opinion, you could still claim defamation on the theory of “yeah, but if you lump them all together, people might jump to false and defamatory conclusions” and the judge has to explain that that, for that to be the case, you have to actually show that the statements are really intended to show such a defamatory meaning. And Taibbi’s lawyer couldn’t do that. Because it does not appear to be true.
Plaintiff acknowledges that these statements “might be protected opinion standing alone.” (Opp. at 11.) But he claims that when viewed together, the statements on the Book’s cover and jacket “become implied factual assertions that the accused was actually paid.” (Id.at 12.) Plaintiff is correct that otherwise nonactionable statements may create “false suggestions, impressions, and implications,” and that these false implications can serve as the basis of a defamation claim. See Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380-81 (1995). But plaintiffs alleging defamation by implication must “make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” Stepanov v. Dow Jones & Co., 987 N.Y.S.2d 37, 44 (N.Y. App. Div. 2014) (emphasis added).
Even assuming that Plaintiff has affirmatively alleged a defamation by implication claim-despite not labeling his sole cause of action as such-Plaintiff has failed to allege facts showing that Defendants intended or endorsed the defamatory inference. As stated above, Plaintiff admits that “the Book contains no evidence whatsoever that Plaintiff received payments, sponsorship, or financial inducement from Elon Musk or any other billionaire.” (Am. Compl. 29.) Instead of endorsing the alleged defamatory implication, the Book argues that Plaintiff’s central reason for agreeing to participate in the Twitter Files was to “gain access.” Higgins, supra at 182. Plaintiff also claims that Higgins “admitted contemporaneously that readers expecting proof of who was ‘bought’ would be disappointed.” (Am. Compl. 62.) In short, the Book’s contents and Higgins contemporaneous statements distance the Book from the defamatory implication Plaintiff alleges. See Henry v. Fox News Network LLC, 629 F.Supp.3d 136, 150 (S.D.N.Y. 2022) (finding that a corporate statement did not endorse a defamatory implication because the statement intentionally included “nebulous” phrasing). Without any additional facts pointing to Defendants’ intent, Plaintiff’s defamation by implication claim fails.
There’s more. Taibbi sued Higgins over the phrase “cash in” but the judge points out that doesn’t need to literally mean getting cash:
This context makes clear that the Book’s reference to “cash in” is not referring to literal money, but rather the idea that Plaintiff traded his reputation for access to the Twitter Files. This sort of loose, figurative language would naturally lead a reasonable reader to interpret this as a statement of opinion.
Hilariously, Taibbi had tried to argue that Higgins claiming that Taibbi got a bunch of new Substack followers because of the Twitter Files was defamatory, but Taibbi’s lawyer had to admit during oral arguments that “getting a bunch of new Substack subscribers” is not the kind of statement that injures your reputation. Oh, and also, it turned out to be true.
Similarly, statement 8 is a nonactionable subjective determination. Statement 8 claims that Plaintiff’s Substack “gained thousands of subscriptions” following his work on the Twitter Files, which translated to a “financial windfall.” But as Plaintiff’s counsel acknowledged during oral argument, this statement, “in the abstract,” is not defamatory because it does not tend to injure Plaintiff’s reputation. Oral Arg. Tr. at 44:13-17; see also Chau, 771 F.3d at 127 (“To be actionable … the statement must do more than cause discomfort or affront; the statement is measured not by the sensitivities of the maligned, but the critique of reasonable minds that would think the speech attributes odious or despicable characterizations to its subject.”) And even if one could read a defamatory meaning into these words, Plaintiff admits that he did in fact gain thousands of Substack subscribers following the Twitter Files reporting. (See Am. Compl. 11 38-39 (“The ‘thousands of new subscribers Owned claims Plaintiff gained after publication represented only a small percentage of Plaintiff’s overall readership.”) Whether this “small percentage” of increased subscribers represented a “financial windfall” is a subjective determination.
In other words, the entire case was a garbage, vexatious attack on Higgins’ own speech — and should put to rest forever the idea that Taibbi was ever a true supporter of free speech. He spent years falsely implying that protected speech activities of private companies were an attack on free speech, and now he’s moved on to actually attacking the free speech of others — abusing the power of the courts to cost them time, money, and attention to fight off a vexatious lawsuit.
Honestly, it seems that, if anything, the small, cuddly, vampire squid would likely have a stronger case against Taibbi than Taibbi had against Higgins.
Filed Under: 1st amendment, defamation, elon musk, eoin higgins, free speech, matt taibbi, metaphor, opinion, rhetorical hyperbole, vampire squid
Companies: hachette
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