From Georgia Court of Appeals Judge Gobeil in Thursday's Sinclair, Inc. v. Amin; note that the other two panel members concurred only in the judgment.

Appellee Mahendra Amin, M. D., sued appellant Sinclair, Inc. d/b/a Sinclair Broadcast Group ("Sinclair") and Dawn Wooten for defamation after Sinclair aired a broadcast in which journalist Sharyl Attkisson interviewed Wooten about conditions at a detention center in Irwin County….

"[V]iewing the pleadings and affidavits submitted by the parties in the light most favorable to the plaintiff (as the non-moving party)" …, the record shows the following. On March 5, 2023, an episode of a television news program, "Full Measure with Sharyl Attkisson," was broadcast on Sinclair television stations. In that episode, Attkisson interviewed Wooten, a nurse who worked at the the Irwin County Detention Center ("ICDC"), who claimed that in 2020, female detainees at the facility reported undergoing "mysterious surgical procedures" that "they did not fully understand." After Wooten's initial inquiries went unanswered, Wooten worked with a whistleblower group to file complaints with various federal agencies. Wooten claimed that a number of sterilization procedures, including hysterectomies, ovary removal, and tubal ligation, were being performed on ICDC women in the custody of United States Immigration and Customs Enforcement ("ICE") without their knowledge or consent.

The episode also discussed eugenics and recounted forced sterilization procedures (throughout history) that were performed on various groups of women without their full or informed consent. In addition, the broadcast quoted language from a 2022 Senate committee report, entitled "Medical Mistreatment of Women in ICE Detention," with Attkisson stating: "A Senate committee in November concluded that 'female detainees [at the Irwin County Detention Facility] appear to have undergone excessive, invasive, and often unnecessary gynecological procedures.'"

Dr. Amin subsequently filed a complaint for defamation against Sinclair and Wooten, alleging that the broadcast was "of and concerning" him and contained false statements that accused him of performing mass hysterectomies on immigrant women housed at the ICDC that were not medically necessary and were performed without their knowledge or consent. He characterized the broadcast's statements as "convey[ing] to the average viewer that Dr. Amin was an evil doctor seeking to carry out a sterilization campaign on immigrant women detained at ICDC." Specifically, Amin challenged the following statements from the broadcast:

[Wooten]: They would leave, go get treatment, and they would return back to this facility to be monitored. They would talk about the incisions that they had had or would have on their abdomen laparoscopically, and they realized that there was invasive procedures that were done.

[Attkisson: "What procedures were they doing?"] [Wooten]: Hysterectomies, and tubal ligations and tubal removals, ovary removals, D & Cs.

[Wooten]: According to the records that were found and released, they were being sterilized without their consent.

[Attkisson: "How many women did you know of that this impacted?] [Wooten]: We're talking 30 to 50.

[Wooten]: What I saw was the inhumane treatment of human beings and lives being — decisions made for without consent.

[Attkisson]: A whistleblower who exposed alleged medical abuses of prisoners that evoke images of another era, when women deemed to be unfit, for whatever reason, were sterilized without their knowledge or with coerced consent.

[Attkisson]: But Wooten's most startling discovery was yet to come. It came when women inmates at the Irwin County Detention Center began approaching her, asking about mysterious surgical procedures they were getting that they did not fully understand.

[Attkisson]: She says a doctor was performing life-changing surgeries on the women that they say they didn't want or properly consent to.

[Attkisson]: So you're saying that physicians were sterilizing these women without their permission or unbeknownst to them?

[Attkisson]: To Wooten, she was seeing shades of that past with illegal immigrant women at the Irwin County Detention Center.

Dr. Amin, who completed his residency in gynecology and has practiced medicine in Georgia for over 35 years, provided gynecological care for detainees housed at ICDC. Dr. Amin averred that he only performed two hysterectomies on ICDC patients and both were medically necessary, and he stated that he did not perform tubal ligation on any ICDC detainee. He also maintained that all procedures performed on ICDC detainees must be pre-approved as medically necessary and that he obtained informed consent for each procedure he performed.

As part of his complaint, Dr. Amin noted that the Senate report had concluded that only two hysterectomies were performed, both medically necessary. That conclusion, however, was not mentioned in the broadcast. Notably, although the Senate report thoroughly discussed Amin's work in connection with detainees held at ICDC, the broadcast at issue did not mention him, or any physician or hospital affiliation, by name.

The court rejected Amin's libel claims, because the article wasn't "concerning the plaintiff" (as required by Georgia law and by First Amendment libel law):

["]To sustain an action for [defamation], the allegedly defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff. If the words used really contain no reflection on any particular individual, no averment or innuendo can make them defamatory. An innuendo cannot make the person certain which was uncertain before.["]

"A publication claimed to be defamatory must be [viewed] and construed in the sense in which the [viewers] to whom it is addressed would ordinarily understand it." Put another way, in considering whether a publication is defamatory as a matter of law, "we look not at the evidence of what the extrinsic circumstances were at the time indicated in the [publication], but at what construction would be placed on it by the average [viewer]."

It is undisputed that Dr. Amin is not named in the episode. The episode makes a single reference to "a doctor [ ] performing life-changing surgeries on the women that they say they didn't want or properly consent to." Immediately after this statement, Attkisson asks Wooten: "What procedures were they doing?" She then asks Wooten: "So you're saying that physicians were sterilizing these women without their permission and unbeknownst to them?"

Nevertheless, Amin contends the broadcast was "of and concerning" him because he previously had a practice in Ocilla, Irwin County, had treated ICDC detainees, and he had often been the only gynecologist in Irwin County—thereby he concludes that he is the only person the episode could be referencing. As noted earlier, "[i]f the words really contain no reflection on any particular individual, no averment or innuendo can made them defamatory" and "[a]n innuendo cannot make the person certain which was uncertain before." Further, although the trial court described that Amin "is the only known provider of gynecological care for women detained at ICDC," this information does not appear in Dr. Amin's affidavit. {Likewise, in his brief on appeal, Dr. Amin has not directed this Court to other instances in the record that would support the trial court's statement that he was the only known provider of gynecological care to women detained at ICDC.}

Under these circumstances, we disagree that Amin was ascertainable from the broadcast alone. It follows that … Amin cannot demonstrate a likelihood of success on the merits of his defamation claim ….

For lawsuits brought by Amin over other publications that had made similar allegations (and, as I recall, did mention him by name), see these three posts.

Jacquelyn Nicole Schell, Isabella Salomao Nascimento, and Anna Kaul (Ballard Spahr LLP) represent Sinclair and Wooten.

The post Libel Lawsuit Over ICE Mass Hysterectomies Claim Thrown Out appeared first on Reason.com.