CNN’s fact-checking criticized in defamation case

PANAMA CITY, Fla. (CN) — Attorneys for Zachary Young, a security consultant who sued CNN for defamation, took aim at the network’s reporting and fact-checking process on Tuesday, highlighting the concerns some editors had over a Nov. 11, 2021, story about Afghans trying to flee their country during the United States’ hasty withdrawal.

Thomas Lumley, senior national security editor for CNN’s digital operation, wanted to “pause” the digital version of the story even as the television segment aired, according to Slack messages shown in court.

“I would suggest this is still very much not ready for prime time,” Lumley wrote to his superiors about the story reported by CNN national security correspondent Alex Marquardt that appeared during “The Lead with Jake Tapper.”

“I might even argue that this is pretty flawed, and we should consider forgoing the write and just having the video segment,” he continued.

Young — a U.S. Navy veteran who had previously worked for military contractors Blackwater and Dyncorp International — was the only private contractor named in the segment that included interviews with Afghans claiming some private contractors were charging up to $14,000 for “black market” evacuations. That prompted Young to file his 2022 lawsuit accusing the network of ruining his reputation and business, Nemex Enterprises.

Young, 49, has maintained he never accepted money from individual Afghans and instead relied on sponsorships from corporations and nongovernmental organizations to help rescue those fleeing the war-torn country. Prior to the trial, 14th Judicial Circuit Court Judge William Henry ruled that there is no evidence that Young did anything illegal.

Other messages between Lumley and breaking news editor Megan Trimble also display his reservations about publishing the digital version of the story right away.

“The story is full of holes like Swiss cheese,” Lumley wrote.

“Agree. The story is 80% emotion, 20% obscured fact lol,” Trimble responded.

After taking the stand on Tuesday, Lumley explained he did not doubt the facts of the story but wanted to know if any Afghans had successfully fled the country using private operators before publishing. That question was still not addressed in the final version of the digital article published on Nov. 13, 2021.

“I’m never going to publish a story that is factually incorrect or unfair,” Lumley said. “That’s the red line.”

Young’s attorneys also continued to hammer on the term “black market” in questions to CNN employees during depositions played for the court. The term never made its way into the story, but was shown on a banner on the bottom of the screen during the 5-minute-long segment.

“To me, black market doesn’t necessarily have a negative connotation,” said producer Michael Conte in his deposition. “I don’t think it was an error that black market was used.”

Other CNN staff who reviewed the story — Michael Callahan, a senior producer, and Virginia Moseley, executive vice president of editorial — said “black market” meant “unregulated” and not necessarily illegal.

Some CNN employees also had to answer for off-color remarks while speaking about Young in internal communications.

“Do you think he has a punchable face?” one of Young’s attorneys asked Conte, the producer, referencing a Slack message produced in discovery.

“Yeah,” Conte replied in his deposition.

When asked what that meant, Conte said, “To me it looks like someone I wouldn’t want to hang out with.”

In an exchange between Marquardt and his assistant managing editor Matthew Philips, the reporter says, “We gonna nail this Zachary Young mfucker.”

To which Philips replies, “Gonna hold you to that one cowboy.”

In his deposition, Philips called the exchange “banter.”

“I took it as he’s going to do his due diligence,” he said.

In his deposition, Adam Levine, senior vice president of news, said those messages do not violate CNN policies.

“It’s a conversation between two colleagues and it does not impact editorial,” he said.

Levine also stood by using the phrase “black market” in the segment, and said the decision to issue an on-air apology laid on their legal team.

“In order to help ameliorate that situation, we felt that a correction was due,” he said. “This was a decision for legal reasons.”

CNN’s attorneys suffered a set-back earlier in the day when the judge refused to allow their first witness to testify without his face being shown by the media pool’s cameras.

Ralf Otto, a German national who helped evacuate Afghans during the U.S. withdrawal, was prepared to testify, but requested that he not be photographed or video recorded in court. CNN attorney David Axelrod characterized the request as a “safety issue,” because the Taliban has issued a fatwa against him.

“We’re looking for reasonable accommodation,” Axelrod said. “And can do so without risking safety or what he enjoys doing which is helping people.”

Young’s attorneys objected to the motion, because Otto is not a victim of a crime or confidential informant.

One member of the media in the courtroom, Nicholas Fondacaro of NewsBusters, also objected.

The witness could have been significant for CNN, as Otto was a volunteer for CivilFleet, a German NGO, which contracted with Young to evacuate six Afghans in the fall of 2021. But Young did not evacuate three of them, according to court documents filed by the network, and refused to refund the organization.

Henry denied the motion.

The trial is expected to end this week.

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