Cassandra Fairbanks.
(Credit: YouTube)
Attorney Robert Barnes sees the mainstream media a little bit like the IRS: “If anyone gets in their way, they crush them.”
That goes a long way to explaining how the Malibu attorney, best known for his celebrity tax defense practice, turned up last week representing a Trump-aligned media figure in a high-profile defamation lawsuit.
Barnes represents Cassandra Fairbanks in a libel suit that accuses Emma Roller, a reporter for Fusion and a contributor to The New York Times, of defaming Fairbanks in a tweet. Barnes reached out to Fairbanks after the journalist asked for legal help via—where else?—Twitter.
The suit filed in Washington D.C. federal court is the third in as many weeks targeting a reporter or news outlet over coverage of President Donald Trump and his backers. Some see the spate of suits as a worrisome sign that the White House and its allies are launching a concerted legal attack on what they call “the liberal media.”
Speaking to the National Law Journal one day after the suit was filed, Barnes said the case pitting a right wing journalist against an establishment media figure is just the fight he’s been spoiling for.
“The First Amendment was intended to protect way more than The New York Times, and this case is perfect for illustrating that,” Barnes said.
By focusing on a tweet, the suit also touches on a new frontier in libel law. In January, a New York state Supreme Court judge dismissed a suit filed against Trump by a political pundit who he’d insulted, finding the “intemperate tweets” at issue could only be read as opinion and thus couldn’t be defamatory.
A Fusion representative declined to comment on the suit. In a statement to BuzzFeed, Editor-in-Chief Dodai Stewart called the libel charges frivolous. “This suit is an obvious publicity stunt and an attempt to intimidate reporters who scrutinize the activities of the extreme right. We fully support Emma and will defend her,” Stewart said.
The Fairbanks suit comes on the heels of more conventional libel actions sparked by coverage of the Trump administration.
On May 26, three Russian bankers represented by Alan Lewis of Carter Ledyard & Milburn sued BuzzFeed for defamation over the site’s publication of a dossier that made unverified claims of ties between Russian interests and the Trump campaign.
A week earlier, Oleg Deripaska, a Russian aluminum magnate represented by New York-based Boies Schiller Flexner, sued The Associated Press for libel over a story he claims gave the false impression that he had paid Trump’s campaign manager Paul Manafort for work that advanced Russian interests. The AP is standing by its story and will “defend the lawsuit vigorously,” according to general counsel Karen Kaiser.
Attorney Theodore Boutrous Jr., a Trump critic and a partner at Los Angeles-based Gibson, Dunn & Crutcher, said he blames the president for fostering a “profoundly disturbing” climate for journalists. “He’s sent a clear signal that it is open season on the media.”
Boutrous said that he is fielding more calls from media clients these days and that his advice is very basic.
“Don’t be intimidated. They are trying to squelch that brick-by-brick building of a story that is essential,” he said. “Focus on the facts and keep your eye on the ball. And I remind them that most of them have superb newsroom lawyers.”
LIKE LAWYER, LIKE CLIENT
The case against Roller revolves around an April 28 Twitter post, which included a picture of Fairbanks and pro-Trump blogger, Mike Cernovich, flashing the classic “OK” hand sign next to a podium. Roller’s Twitter caption reads, “just two people doing a white power hand gesture at the White House.”
Roller, according to the complaint, additionally posted that the Anti-Defamation League had identified the hand signal as one used to mean “white power”—an assertion the organization denied days later. The initial post was shared on Twitter more than 6,000 times, the suit alleges.
Barnes said Roller’s tweets about Fairbanks are different from those at issue in the Trump case in New York. Asserting that the gesture was a “white power” signal and that the Anti-Defamation League had confirmed that interpretation are “falsifiable statements, and were, in fact, false,” Barnes said. “Vague statements are more immune from suit, especially when they don’t touch on something very inflammatory, unlike allegations of racism.”
Barnes is probably best known for his criminal tax work for high-profile clients. Actor Wesley Snipes was cleared of serious tax charges and avoided a 16-year prison sentence while represented by Barnes, who also helped “Girls Gone Wild” producer Joe Francis avoid a $20 million IRS payment and walk away with a $2,500 fine.
But by his own estimate, “about a quarter” of his workload is pro bono media and First Amendment work. Barnes noted that he’s worked for clients on the liberal end of the political spectrum, helping consumer advocate Ralph Nader and California’s Peace and Freedom Party win spots on election ballots.
Fairbanks, who has more than 100,000 Twitter followers, is a media celebrity in her own right and her politics, like Barnes’, don’t always conform to expectation.
She currently works for Big League Politics, a far-right site run by a former Breitbart reporter. It’s one of several pro-Trump activist sites that have gained access to the White House under the new president. When the photo that triggered the lawsuit was shot, Fairbanks was working for the Russian government-owned website Sputnik.
Barnes calls his client a “grassroots journalist,” pointing out she organized protests involving an Ohio rape case and backed the Black Lives Matter demonstrations. Her profile spiked when the mainstream media jumped on her decision to back Trump for the White House.
The suit says Fairbanks’ background as a “civil rights writer, journalist and advocate” should have prompted Roller to consider more seriously whether Fairbanks was using a “white power” hand signal. “At a minimum, defendant failed to exercise reasonable care when she published such a serious allegation,” states the complaint, which advances claims for libel, invasion of privacy, intentional infliction of emotional harm and negligent infliction of emotional distress.
“She comes from a working class background, the constituency that helped elect President Trump, and she doesn’t fit into any elite liberal archetypes, because she has advocated for liberal causes and she hasn’t been a right-winger forever,” Barnes said.
Her toughness helped convince Barnes to take the case, he said.
“She knew what was coming when she came out for Trump,” said Barnes. “People were threatening her daughter on Twitter and shaming her. She stood up to all of it. She’s tough.”
Todd Cunningham covers entertainment, media and sports law in Los Angeles for The Recorder and Law.com. Contact him at [email protected]. On Twitter: @toddcnnnghm
