From Judge Joseph Bataillon’s decision Tuesday in Straka v. NBC Universal Media, LLC (D. Neb.):
In his complaint, the plaintiff, Brandon Straka, alleges that NBC Universal published statements on primetime cable television that singled out Straka and falsely accused him of criminal conduct in connection with events that occurred on January 6, 2021, at the Capitol in Washington, D.C…. {Specifically, the plaintiff alleges NBC Universal employees Chris Hayes and Ari Melber made materially false statements on cable television programs that that Straka committed the “Federal crime of storming the Capitol;” that NBC Universal misattributed statements to Straka that he never made; that NBCU falsely stated that Straka “[broke] into the Capitol” on January 6, 2021; and that NBCU falsely stated or implied that Straka was “convicted” of “trying to help attack police officers” and that he “confessed” and was found “guilty” of “helping attack police.”} …
[Public records] show that the plaintiff entered a plea of guilty to count one of an information charging him with Engaging in Disorderly and Disruptive Conduct in the Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D). In the plea agreement, he acknowledged that the attached Statement of Offense fairly and accurately described his actions and involvement in the offense. He agreed and stipulated to the factual basis for his guilty plea and agreed that if the case were to proceed to trial, the United States could prove the agreed-to facts beyond a reasonable doubt. The Statement of Offense provides that Straka “knowingly entered the restricted area at the U.S. Capitol Grounds.” It further provides:
While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling “go, go, go” to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer’s shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying “take it, take it.” He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.
Also, Straka agreed that he “knew at the time he entered the U.S. Capitol Grounds that that he did not have permission to enter the Grounds, and the [he] did so with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress.” …
Under Nebraska law, a claim of defamation requires: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; 3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” … The standard is one of substantial truth or material falsity: … To satisfy his burden of proving material falsity, a plaintiff must prove that the “gist or sting” of the alleged defamation would have a different effect on the mind of the audience than the literal truth; “[w]hen the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.” In evaluating a statement’s substantial truth, courts should not engage in “fine splitting of semantic hairs” that “might leave room to argue about its literal truth.” …
The material challenged in the plaintiff’s complaint cannot be understood by a reasonable person as anything but substantially, if not literally, true. The differences between the statements NBC Universal published on cable television programs and the admissions Straka made in his criminal case are slight if not nonexistent. Although there may be no federal crime expressly denominated as “storming the Capitol,” the descriptions of Straka’s conduct on January 6, 2021, would roughly equate to such a crime. He admitted committing disorderly and disruptive conduct in the Capitol building or grounds, with the intent to disrupt the counting of electoral votes. That admission made him complicit in storming the Capitol. The public record shows that he was on the Capitol grounds with other “Patriots” encouraging them to enter the Capitol and commit violence. His conduct has the same “gist or sting” whether or not he crossed the building’s threshold or not.
The distinction between entering the Capitol building versus the grounds of the Capitol is meaningless in the context of the charges levelled against him. Straka admits he “chimed in with the crowd, saying ‘take it, take it.'” Whether he said, “take it away from him” or “take the shield!” as opposed to “take it! take it!” is another distinction without a difference. The reference is clear from the surrounding context. Whether the crime charged was a felony or misdemeanor is also a matter of no consequence. Straka admitted the public was restricted from the Capitol grounds and he was inside the grounds without authorization. In the context of the overall occurrence, there is no meaningful difference between the actions outlined in the Statement of Offense and the allegedly false statement or implication that that Straka was “convicted” of “trying to help attack police officers” and that he “confessed” and was found “guilty” of “helping attack police.” Whatever differences there are between statements that Straka committed the federal crime of storming the Capitol and the conduct that forms the basis of his plea amount to semantic hair splitting.
Also, Straka is barred by the doctrine of judicial estoppel from disavowing the admissions he made in connection with the criminal case. Straka obtained the benefit of dismissal of more serious charges in exchange for his guilty plea. Straka’s position in this action is clearly inconsistent with the statements he agreed to at the time of his plea. His assertion that the challenged on-air statements by Hayes and Melber are false are entirely contradicted by the factual basis of his guilty plea….
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