On Wednesday, Daily Wire Editor-in-Chief Ben Shapiro and his attorney, Kurt Schlichter, had reason to celebrate their victory in court on a free speech issue: the appeal filed by Ahmed Mohamed, aka “Clock Boy,” to reverse a lower court’s ruling that ruled for Shapiro was completely dismissed.
To recapitulate the case, as the court reported, Ahmed Mohammed was a Muslim and a United States citizen who emigrated with his father from Sudan to reside in Irving, Texas. On September 14, 2015, Mohammed was 13 and in his freshman year of high school when he brought a homemade alarm clock to his school and showed it to a teacher, who took it from him and contacted a school resource officer.
Later in the school day, Mohammed was escorted out of class to meet with police officers and the school counselor, then later arrested and taken to the Irving Police Department for bringing a “hoax bomb” to school. The charges were dropped by the Irving Police Department on September 16, 2015, but his school suspended him for three days for his actions.
That precipitated national news attention; the New York Times, the Dallas Morning News, the Washington Post, the New York Post and the Huffington Post all covered the story.
A Washington Post article wrote:
His parents had a choice: deal with this quietly, or tell someone. Their son had been placed in handcuffs and interrogated, in a town known for its resentment of Muslims. So they called the media, and soon Ahmed was trending on Twitter, and everyone from Mark Zuckerberg to President Obama was sharing messages of support.
On September 16, 2015, Mohamed hosted a press conference at the family residence to respond to the arrest and to speak to the press. The Council on American-Islamic Relations (CAIR) co-hosted the press conference and noted in its press release that “the incident is symptomatic of growing Islamophobia in American society.”
Mohamed appeared on "Good Morning America," "The Nightly Show with Larry Wilmore," and MSNBC. On September 17, 2015, the website The Daily Beast released an article entitled “‘Man, I Went Viral’: My Day with Ahmed Mohamed, the Most Famous Boy on Earth.” The article discussed Islamophobia, Mohamed trending on Twitter, the additional media appearances—Ellen DeGeneres and Stephen Colbert—being offered to Mohamed and the fact that his name came up in the Republican presidential debates. President Barack Obama tweeted an invitation for Mohamed to come to the White House and Hillary Clinton and Mark Zuckerberg expressed public support for Mohamed; CAIR named Mohamed as the American Muslim of the Year; he attended astronomy night at the White House.
After all of this, Shapiro appeared on The Kelly File on October 19, 2015. During Shapiro’s interview, he asserted that the alarm clock incident was a “hoax” and a “setup” and that Mohamed's father used his son to advance his agenda.
In 2016, Ahmed Mohamed's father filed suit against Shapiro, asserting claims for defamation and defamation per se. Shapiro filed a motion to dismiss the claims pursuant to chapter 27 of the Texas Civil Practice and Remedies Code by alleging that his statements were non-actionable opinions, Ahmed Mohamed was required to prove actual malice because he was an all-purpose public figure or limited purpose public figure, the plaintiff could not establish actual malice or show that Shapiro’s statements were false, and Shapiro's statements were protected as “fair comments” and under the qualified privilege.
The trial court granted Shapiro’s motion to dismiss and awarded Shapiro his attorney’s fees and costs. Mohamed then filed a notice of appeal.
Justice David Evans, writing for the Court of Appeals Fifth District of Texas at Dallas, wrote that the controversy was public, that Mohamed had more than a trivial or tangential role in the controversy, and that the alleged defamation directly related to Mohamed’s participation in the controversy. He pointed out that the actual malice standard requires that a defendant have, subjectively, significant doubt about the truth of his statements at the time they are made.
Shapiro had argued that Mohamed offered “no evidence of malice, much less clear and specific evidence” and that a “defendant does not demonstrate actual malice merely by failing to somehow verify the subjective intentions of the plaintiff, and the Brief never explains how Ahmed Mohamed's intentions could somehow be verified.” Shapiro added that he was not being “sued for lying about the Appellants but for interpreting the facts in a manner they do not approve of.” Shapiro asserted that he made his statements “without actual malice and without knowledge that they are in whole or in part untrue. In fact, I stand by my statements, having believed them to be true at the time I made them, and I continue to believe them to be true today.” He added he had “no independent knowledge of facts that would exonerate them of what I believe is their attempt to promote their agenda.”
Evans wrote, “After a review of the evidence in its entirety, we conclude that Mohamed has not demonstrated a prima facie showing of actual malice. As stated above, to establish actual malice, a plaintiff must prove that the defendant made the statement with knowledge that it was false or with reckless disregard of whether it was true or not.”
Evans concluded, “On the record of this case, we affirm the trial court’s granting of the motions to dismiss and denial of the motion for reconsideration. “
The court ruled that all costs Shapiro incurred had to be covered by Mohamed.