Pentagon Contractor’s Libel Claim Over Hidden Date Recording by O’Keefe Media Group Can Go Forward

From today’s decision by Judge Amit Mehta (D.D.C.) in Mannina v. O’Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

The publication of these videos caused Plaintiff to lose his job. Plaintiff subsequently brought this action alleging defamation, false light, fraudulent misrepresentation, conspiracy, and violations of the District of Columbia and federal wiretapping statutes….

Plaintiff alleges that, “[t]hrough numerous edits and splices from statements made throughout both dates, and even between each date, the various videos and articles … were created to intentionally provide false or implied evidence to support Defendant OMG and O’Keefe’s fabricated claims that [Plaintiff] was essentially attempting to launch an unlawful coup against President Trump.”

Specifically, he alleges that “Defendants falsely state or imply in their [publications] that Mr. Mannina was a senior Pentagon Official providing direct advice to the [Joint Staff] and part of a subversive ‘Deep State’ that held covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration … in highly secure locations, including ‘The Tank’, that were ‘reserved for critical defense deliberations.'” “Defendants further falsely state or imply that [Plaintiff], in his official capacity, was lying, spying, conspiring to commit a coup, and acting unethically.” …

Defendants argue that, “as a matter of law,” the statements “[c]haracterizing Mr. Mannina as being part of a ‘Deep State’ effort or a ‘coup’ [are] the kind of political hyperbole and opinionated commentary that is not meant as a literal accusation of criminal conduct” and therefore are “fully protected by the First Amendment.” They cite much case law to stand for the proposition that the First Amendment protects “[s]tatements of political opinion, epithets, and hyperbolic characterizations” because “they are not provably true or false statements of fact.” Indeed, the First Amendment protects “statements that cannot ‘reasonably be interpreted as stating actual facts’ about an individual” to ensure that “public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole.'”

But the problem with Defendants’ argument is that the disputed statements are more than mere opinion. For example, Defendants argue that “‘Deep State’ is a subjective pejorative used in political rhetoric to suggest disloyal bureaucratic opposition, and accusing someone of a ‘coup’ in this figurative context is similarly a dramatic way to impugn one’s political allegiance or motivations.” But a reader or viewer of the publications could construe these characterizations as fact.

To start, “[a] classic example of a statement with a well-defined meaning is an accusation of a crime.” Accusing someone of attempting to stage a “coup” clearly falls within that example. And such an accusation is “obviously verifiable” and defamatory per se.

Turning to context, the statements appear not in an editorial or op-ed section of a newspaper, where readers are “fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper,” but rather in publications that Defendants describe as being the product of “undercover journalism” or “investigative journalism.” “Cautionary language” such as “In my opinion …” or “Is it not true that … ?” that would cause a reader to “discount that which follows” as fact also is absent. Moreover, the videos appear on OMG’s website, which touts itself as “uncover[ing] the truth.” All of these could “influence the average reader’s readiness to infer that a particular statement has factual content.”

OMG and O’Keefe’s motion makes the point. Those Defendants insist that Plaintiff “is nothing less than a traitor to our country” with “seditious thoughts and plans” who “plan[ned] to undermine the President of the United States” but “got caught.” And they contend that “[t]his was Mr. Mannina’s chance in life to measure up for his cause of sedition against the government of the United States, and for a pretty smile, he chose to brag and reveal his secrets.” Defendants apparently believe that Plaintiff is in fact involved in sedition.

And so do the viewers of OMG’s videos “to whom [the statements were] addressed.” On each of the Videos, hundreds of viewers implicitly or explicitly accuse Plaintiff of being a “criminal” or “traitor” who should be charged with “treason” or “sedition.” These facts render it plausible that the disputed statements can “reasonably be interpreted as stating actual facts about an individual.”

The implication that Plaintiff is part of the “Deep State” is a closer call, but that too can be interpreted as stating facts when considered in the overall context. The D.C. Circuit has held that general accusations such as that someone is a “fascist,” “Marxist,” or even “political activist” are “hopelessly imprecise” and “obviously unverifiable.” Where those terms were used to denounce someone with whom the speaker disagrees or to express “that a person’s political outlook is not respectable,” they are constitutionally protected opinions.

But that does not mean such terms are not capable of being factual in other contexts. For example, labeling someone as a “Leninist” or “Communist-fronter” may be considered a defamatory factual assertion where those characterizations were also reinforced by additional accusations that the person advocated for “a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship.”

The “Deep State” implication plausibly resembles this latter example. Simply accusing someone of being part of the “Deep State” may be an expression “that a person’s political outlook is not respectable.” But Defendants have additionally asserted that, as part of the “subversive ‘Deep State,'” Plaintiff was a “senior Pentagon official” who held “covert meetings with retired military leaders, including admirals and generals, who were collaborating from within the Pentagon on the means to undermine and counteract the incoming Trump administration” and “was lying, spying, conspiring to commit a coup, and acting unethically.”

The imputation that Plaintiff is part of the “Deep State,” at least in this case, then, can reasonably be interpreted to state a fact that Plaintiff, by way of membership in the “Deep State,” is a government official conspiring to commit crimes against the Trump administration. That is not “obviously unverifiable.” …

[C]haracterizing statements such as that Plaintiff was part of a coup or the Deep State as opinion or political epithet does not negate that they “may still imply a false assertion of fact”—that Plaintiff is a government official involved in subversive criminal activity. And Plaintiff has alleged that some of the facts on which Defendants base these implications are “incorrect or incomplete,” such as that Plaintiff is a “Top Pentagon Advisor” or a “Senior Advisor” to the Joint Staff, much less a government official at all, or that he met with military leaders in the Tank in order to undermine the Trump administration. So even those statements—which Defendants have argued are not actionable because they are not disparaging but rather “over-credit[] his importance”—are relevant to Plaintiff’s defamation claim….

The court also concluded that it wasn’t clear that plaintiff was a public figure (even a limited-purpose public figure). “To be clear, the court does not foreclose Defendants from making the case on summary judgment that Plaintiff is a limited-purpose public figure. At this stage, it is at least plausible that Plaintiff is not.” Because of this, he had to plead only negligent falsehood, not reckless or knowing falsehood. “And Defendants do not argue that Plaintiff failed to plausibly allege ‘at least negligence.'”

Given that the court denied the motion to dismiss, “Plaintiff’s defamation claim can proceed to discovery. So, too, can Plaintiff’s false light claim.”

Separate posts cover the fraudulent misrepresentation claim, the wiretapping claim, and the Heidi pseudonymity issue.

Bradley Prescott Moss and Mark S. Zaid (Law Offices of Mark S. Zaid, P.C.) represent plaintiff.