A key question could be whether Cohen qualifies as a public figure. If he could convince the state court in New York where the suit was filed to treat him as a private citizen, then he would have to clear a lower bar to prove his case against BuzzFeed than would someone like his boss.
“He is not what we would call an 'all-purpose public figure,'” said Derigan Silver, co-author of the textbook “Mass Media Law.” “These are individuals who have achieved widespread fame or notoriety and have a position of continuing news value. I don't think he has reached this level yet. He might be a 'limited-purpose public figure.'
“Limited-purpose public figures have 'injected themselves into a public controversy' in order to influence the outcome or affect public opinion. The Russian investigation would clearly qualify as a public controversy. Simply being Trump's lawyer or being accused of a crime, however, is not enough to say you injected yourself. However, repeatedly reaching out to the media after an initial denial can transform someone into a limited-purpose public figure.”
Jonathan Peters, a media law specialist at the University of Georgia, said that Cohen “would likely qualify as a limited-purpose public figure. Cohen represents the president of the United States, and he has used the news media to shape debate on public issues, including those related to claims of Russian collusion. He has voluntarily attracted public attention.”
One twist could render Cohen's status moot: According to his complaint, Cohen is seeking compensatory and punitive damages, meaning he wants BuzzFeed to not only compensate for harm to his business and reputation but also to pay an additional penalty. Cohen's extra demand, if he clings to it, will force him to clear the higher bar required of public figures, even if he could be considered a private citizen, said Libby Locke, a partner at Clare Locke in Virginia.
I reached Locke by phone as she was preparing to board a flight back from Florida, where she was working on an unrelated libel suit against CNN. She said she had read Wednesday's New York Times op-ed by BuzzFeed editor in chief Ben Smith, an article in which Smith wrote that “a year of government inquiries and blockbuster journalism has made clear that the dossier is unquestionably real news.”
Smith's piece struck Locke as a potential liability. “There's a defense called the fair report privilege, which basically says a media entity is allowed to publish a fair report of legal proceedings or administrative proceedings,” she said. BuzzFeed's original publication of the dossier might be protected by the fair report privilege, according to Locke, but “if BuzzFeed is opining on the accuracy of the document, then it can lose that fair report privilege.”
“Once BuzzFeed starts endorsing the accuracy and the truth of the document, which Mr. Smith appears to have done in his New York Times op-ed, then BuzzFeed can be on the hook for the contents of the document,” Locke said. “I think BuzzFeed really stepped in it when it said not only that it was proud to have published the dossier but also that the file is 'unquestionably real news.'”
George Freeman, a former in-house lawyer for the New York Times, said that “journalistically, it's obvious you should publish” the dossier. However, many other news outlets that also possessed the dossier reached a different conclusion and decided not to publish information they could not verify.
“BuzzFeed let Trump cast a shadow of doubt on all reporting,” Poynter Institute Vice President Kelly McBride wrote at the time. Guardian media editor Jane Martinson wrote that “it is wrong for any respected news organization to publish information it knows may not be true.” Despite his support for BuzzFeed, Freeman fears the site “could be in a whale of trouble.”
The site told readers at the time of publication that its reporters “have been investigating various alleged facts in the dossier but have not verified or falsified them.”
“It is not just unconfirmed,” BuzzFeed said of the dossier. “It includes some clear errors.”
“You want to give your readers as much information as you can — that's the essence of journalism,” said Freeman, now executive director of the Media Law Resource Center. “On the other hand, the lawyers would say, 'Don't dare say that because that gives them evidence of actual malice. It actually hurts our legal case.'”
According to the Legal Information Institute at Cornell Law School, “actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether it was false.”
First Amendment attorney Charles D. Tobin is more optimistic about BuzzFeed's prospects. He noted that the “clear errors” BuzzFeed immediately identified did not relate to Cohen. To prove actual malice, Tobin said, Cohen would have to show that BuzzFeed knew specific claims about Cohen were false or actively doubted the claims. Demonstrating that BuzzFeed was generally skeptical about the dossier, as a whole, would not be enough to win the case, according to Tobin.
“Cohen is going to have to bring actual malice home to the individual facts that he claims are defamatory,” Tobin said. “An extraneous fact that didn't involve Cohen just isn't relevant to whether they knowingly published a false statement about him.”