In a Monday brief in D.C. federal court, Arpaio, represented by conservative group Freedom Watch Inc., claimed that the three news outlets had knowingly published the errors, which have since been corrected, and that they did so with malice. Arpaio urged the court not to dismiss the lawsuit, as the news outlets requested.
In 2018 news reports, both CNN and Rolling Stone incorrectly referred to Arpaio as a “felon,” while HuffPost mistakenly wrote he was “sent to prison.” Arpaio was convicted of a misdemeanor, but he was pardoned by President Donald Trump and never served any prison time. CNN newscaster Chris Cuomo made an on-air correction within minutes of the network’s mistake, and both Rolling Stone and HuffPost issued corrections online soon after their stories were published, according to court filings.
“It is the media’s job to know what the facts are before publishing a story,” the Monday motions say, “and it had been widely reported that not only was Plaintiff Sheriff Arpaio not sent to prison (or jail) but the media … knew that he had filed court papers seeking to have his misdemeanor liability vacated, even though President Trump pardoned him.”
Arpaio also alleged in the briefs that the news outlets had a motive to hurt his reputation, accusing them of harboring a “leftist” agenda.
Arpaio filed his lawsuit in D.C. federal court in December, claiming that the reporting errors had hurt his reputation and political chances, including by interfering with potential relationships with the Republican National Committee and GOP donors.
Arpaio was defeated by Rep. Martha McSally, R-Arizona 2nd Dist., in the primary for the Arizona Senate race last year. He said in the lawsuit that he intends to run for public office in 2020.
Arpaio, who served as sheriff of Arizona’s Maricopa County from 1993 to 2017, was accused by the U.S. Department of Justice of a pattern of discriminatory law enforcement practices against Latinos, including by targeting and detaining Latinos at work site raids and traffic stops based on their perceived race. Arpaio settled the bulk of those claims in 2015.
Arpaio was then convicted of criminal contempt in July 2017, when an Arizona federal judge found he had continued to detain individuals not suspected of criminal activity solely based on their immigration status after a court order blocked the practice. But a month later, before Arpaio was sentenced, President Trump pardoned him in the first presidential pardon of his term. Arpaio is also currently fighting to vacate that underlying conviction.
According to Freedom Watch, Arpaio’s lawsuit against the media outlets is part of the group’s so-called “leftist media strike force.”
The three outlets filed motions to dismiss in March, arguing that Arpaio had failed to state a claim of malice because the mistakes were minor and the reporting was overall “substantially true,” since Arpaio had been convicted of a crime.
“At bottom, what happened here — a minor inaccuracy in reporting about a public figure — is precisely what the actual malice standard is intended to shield from liability,” Rolling Stone’s attorneys wrote in their motion to dismiss.
The First Amendment “does not require perfection from the news media,” the magazine added, quoting a Fourth Circuit decision.
“Arpaio’s legal claims have no plausible basis and are as far-fetched as the damages he alleges,” CNN’s attorneys added in their motion to dismiss.
The news outlets also filed motions to dismiss under D.C.’s Anti-SLAPP Act, which aims to protect defendants from “strategic lawsuits against public participation.”
“It’s clear that they maliciously and intentionally called him a felon because their game is to use him as a whipping boy against Trump because they’re both against illegal immigration,” Larry Klayman, general counsel for Freedom Watch, told Law360 on Wednesday.
He said he was confident the lawsuit would survive the motions to dismiss and move on to the discovery phase.
“You get at discovery and God only knows what we’ll find,” Klayman said, adding that he believes it “will enhance the malice allegations.”
Arpaio has also sued the New York Times for $147.5 million over an editorial which included descriptions of alleged abuse of immigrants detained at the former Maricopa County sheriff’s infamous outdoor “tent city.” The Times moved to dismiss that suit earlier this year. Arpaio is represented by Klayman in that suit as well.
Counsel for CNN, Rolling Stone and HuffPost did not immediately return requests for comment on Wednesday.
Arpaio is represented by Larry Klayman of Freedom Watch Inc.
Rolling Stone and Tessa Stuart are represented by Alison Schary, Elizabeth A. McNamara and Rachel Strom of Davis Wright Tremaine LLP.
Jeff Zucker, Chris Cuomo and CNN are represented by Kevin Taylor Baine, Stephen J. Fuzesi and Nicholas G. Gamse of Williams & Connolly LLP.
HuffPost and Kevin Robillard are represented by Jean-Paul Jassy, William T. Um and Elizabeth H. Baldridge of Jassy Vick Carolan LLP and Laura C. Fraher of Shapiro Lifschitz & Schram PC.
The case is Arpaio v. Zucker et al., case number 1:18-cv-02894, in the U.S. District Court of the District of Columbia.
–Additional reporting by Matthew Bultman and Cara Bayles. Editing by Daniel King.