Sean Hannity Threatens Lawsuit Against NYT, Demands Retraction Over COVID Story; Times Responds

On March 1, Joe Joyce and his wife, Jane, set sail for Spain on a cruise, flying first to Florida. His adult children — Kevin, Eddie and Kristen Mider — suggested that the impending doom of the coronavirus made this a bad idea.

“The April 18, 2020 Story is one of many instances of your ongoing campaign to personally attack Mr. Hannity by mischaracterizing and making false statements with respect to his coverage of the coronavirus pandemic,” the letter continues. “By way of example, in another story published by you on or about March 31, 2020, entitled ‘Fox’s Fake News Contagion,’ … you falsely state and imply that Mr. Hannity is responsible for determining all of Fox News’ coverage of the coronavirus, regardless of program or host, and you again falsely state and imply that Mr. Hannity has downplayed the seriousness of the coronavirus pandemic and given the public ‘misinformation’ about the pandemic…”

“Your foregoing statements about Mr. Hannity in the March 22, March 31 and April 18, 2020 Stories … are false and defamatory, and extremely damaging,” Hannity’s lawyers state. Even after he provided them “an exhaustive timeline of his coverage of the coronavirus pandemic in a near hour-long telephone call,” the paper “ignored these true facts and published Stories anyway, with these false statements intact, for the sole purpose of advancing your false narrative about Mr. Hannity and falsely blaming him for Mr. Joyce’s death.” After publishing the story, the paper “underhandedly edited that story to include a statement from Fox News which disproved your timeline, without notifying your readers that you were correcting or retracting your original false statements,” an action Hannity’s lawyers say “further evidences your malicious intent to harm Mr. Hannity.”

Joe Joyce was 74, a nonsmoker, healthy; four years after he opened his bar he stopped drinking completely. He didn’t see the problem.

“He watched Fox, and believed it was under control,” Kristen told me.
Early in March Sean Hannity went on air proclaiming that he didn’t like the way that the American people were getting scared “unnecessarily”…

Eventually, Fox changed course and took the virus more seriously, but the Joyces were long gone by then.

The April 18, 2020 Story is one of many instances of your ongoing campaign to personally attack Mr. Hannity by mischaracterizing and making false statements with respect to his coverage of the coronavirus pandemic. By way of example, in another story published by you on or about March 31, 2020, entitled “Fox’s Fake News Contagion,” available at https://www.nytimes.com/2020/03/31/opinion/coronavirus-fox-news.html (the “March 31, 2020 Story”), you falsely state and imply that Mr. Hannity is responsible for determining all of Fox News’ coverage of the coronavirus, regardless of program or host, and you again falsely state and imply that Mr. Hannity has downplayed the seriousness of the coronavirus pandemic and given the public “misinformation” about the pandemic, as follows:

You can relax, Sean Hannity, I’m not going to sue you.

Some people are suggesting that there might be grounds for legal action against the cable network that you pretty much rule — Fox News — because you and your colleagues dished out dangerous misinformation about the virus in the early days of the crisis in the United States. Some might allege that they have lost loved ones because of what was broadcast by your news organization.

You again falsely stated and falsely implied that Mr. Hannity downplayed the seriousness of the coronavirus pandemic in a story published by you on or about March 22, 2020, entitled “Rupert Murdoch Put His Son in Charge of Fox. It Was a Dangerous Mistake,” available at https://www.nytimes.com/2020/03/22/business/coronavirus-fox-news-lachlan-murdoch.html (the “March 22, 2020 Story”).

Your foregoing statements about Mr. Hannity in the March 22, March 31 and April 18, 2020 Stories (collectively, the “Stories”) are false and defamatory, and extremely damaging. First, your reporting that Mr. Hannity’s comments in any way influenced Mr. Joyce’s decision to take a cruise is demonstrably false. Mr. Hannity could not have influenced Mr. Joyce because the statements that you claim Mr. Hannity made which supposedly influenced Mr. Joyce were made on March 9—eight days after Mr. Joyce had already embarked on his cruise on March 1, according to the timeline in your report.

Mr. Hannity informed you of this fact when he provided you with an exhaustive timeline of his coverage of the coronavirus pandemic in a near hour-long telephone call that he had with Mr. Smith, prior to publication of the March 22, 2020 Story. During this telephone call Mr. Hannity also specifically explained to you that your characterization of his coverage of the coronavirus pandemic was false and incorrect. However, you ignored these true facts and published Stories anyway, with these false statements intact, for the sole purpose of advancing your false narrative about Mr. Hannity and falsely blaming him for Mr. Joyce’s death.

After you published the April 18, 2020 Story, you then underhandedly edited that story to include a statement from Fox News which disproved your timeline, without notifying your readers that you were correcting or retracting your original false statements. This further evidences your malicious intent to harm Mr. Hannity.

Your reporting also takes Mr. Hannity’s remarks completely out of context to falsely claim that he said the coronavirus pandemic could not affect a 74 year-old such as Mr. Joyce. This is the direct opposite of what Mr. Hannity stated in his March 9, 2020 broadcast: he stated that the coronavirus is more serious to individuals who are older, have compromised immune systems, or underlying health conditions. Mr. Hannity’s other comments regarding young, healthy individuals with lowered risk from the virus were merely echoing the same comments being made by Dr. Anthony Fauci at the time, who had stated on that same day (March 9, 2020) that healthy young individuals could still take cruises. See,https://www.forbes.com/sites/douggollan/2020/ 03/09/fauci-says-cruising-is-ok-if-you-are- healthy/.

Mr. Hannity has never disseminated “misinformation” about the coronavirus. On the contrary, Mr. Hannity has extensively and truthfully covered the virus and the seriousness of the pandemic during the same time that The New York Times was minimizing the seriousness of the pandemic, including during the purported “crucial” and “critical” time period of late February and early March that you describe in the March 22 and March 31 Stories, and Mr. Hannity continues to extensively and truthfully cover the coronavirus. By way of example:

• On January 27, 2020, just days after the Centers for Disease Control and Prevention confirmed the first case of the virus in the United States, Mr. Hannity announced that the coronavirus had reached the United States and had Dr. Fauci on as guest on his Fox News show to discuss the potential spread of the virus, including the issue of asymptomatic transmission. This was shortly after The New York Times downplayed the coronavirus in a story published on January 8, 2020, stating that the coronavirus “doesn’t appear to be readily spread by humans.” You also quoted Dr. Guan Yi of the University Hong Kong as stating “We can assume that this virus transmissibility is not that high.” See, https://www.nytimes.com/2020/01/08/health/ china-pneumonia-outbreak-virus.html.
• On January 28, 2020, Mr. Hannity interviewed three different physicians about the unprecedented nature of the coronavirus, including how individuals may be infectious while the virus is incubating in their bodies without their knowledge.
• On February 2, 2020, Mr. Hannity interviewed President Trump about potentially closing the borders due to the seriousness of the virus. Just days later, on February 5, 2020, you again downplayed the severity of the pandemic and described the travel ban to China as “unjust.” See, https://www.nytimes.com/2020/02/05/opinion/china-travel-coronavirus.html.
• On February 10, 2020, Mr. Hannity interviewed Dr. Fauci again about the coronavirus, including the issue of asymptomatic transmission.
• On February 26, 2020, Mr. Hannity reported on how scientists were in the process of working on a vaccine for the coronavirus, and stated “I think you should take every virus seriously… we have to take it [the coronavirus] seriously.” On this same date, you published a story entitled “Let’s Call It Trumpvirus,” which attempted politicize the coronavirus and made light of the federal government’s efforts to combat the coronavirus. https://www.nytimes.com/2020/02/26/opinion/coronavirus- trump.html.
• On February 27, 2020, Mr. Hannity reported on the importance of President Trump’s travel ban in connection with the coronavirus and further discussed the potential timeline for a vaccine. On the same day, Ms. Bellafante of the New York Times Tweeted: “I fundamentally don’t understand the panic: incidence of the disease is declining in China. Virus is not deadly in vast majority of cases. Production and so on will slow down and will obviously rebound.” See, https://twitter.com/GiniaNYT/status/ 1233135863560843264 (emphasis added).
• On February 28, 2020, Mr. Hannity stated on his program in connection with the coronavirus: “We’ve got to do everything we can do to keep America and the world safe and healthy in every way…if it gets bad, I mean would we have to consider closing schools and…mass transit until it’s contained? It’s got that potential.”
• On March 2, 2020, Mr. Hannity stated on his program, in reference to the coronavirus that “of course we have to take it seriously.”
• On March 6, 2020, Mr. Hannity again stated that school closures and tele-working may be necessary as a result of the coronavirus.
• On March 9, 2020, Mr. Hannity criticized the politicization of the coronavirus by politicians and the media, and urged people to unite to combat coronavirus.
• On March 10, 2020, Mr. Hannity stated, in reference to the coronavirus that “we don’t want Americans to get sick…do everything you can do to keep your loved ones safe.”
• On March 11, 2020, Mr. Hannity stated “If you are one of those people [infected with the coronavirus] you have got to self-quarantine in a sense. Be careful. The people around you have to be tested. Be careful, don’t go out as much as you normally would. Be careful. I want to keep every American safe…I want to prolong life as much as possible.”

Additional information regarding Mr. Hannity’s extensive coverage of the coronavirus pandemic can be viewed at https://hannity.com/media-room/seans-coronavirus-timeline/, which Mr. Hannity directly provided to Mr. Smith prior to March 22, 2020 and Ms. Swisher on April 1, 2020. See, https://twitter.com/ seanhannity/status/1245326164534706176; https://twitter.com/seanhannity/status/ 1245326501438017536;https://twitter.com/seanhannity/status/1245327736379527169;https://twitter.com/seanhannity/status/1245328148780199938. All this information was readily available to you prior to your publication of the Stories, further evidencing your complete disregard for the truth in mischaracterizing Mr. Hannity’s coverage of the coronavirus pandemic.

Your publication of the above false and defamatory statements constitutes libel. A statement that carries a false implication is defamatory where “the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” Stepanov v. Dow Jones & Co., 120 A.D.3d 28, 37-38 (1st Dep’t 2014); see also Partridge v. State, 173 A.D.3d 86 (3d Dep’t 2019)

As detailed herein, the Stories, at the very least, impart the false and defamatory inference that (1) Mr. Hannity’s on-air statements (on March 9, 2020) caused Mr. Joyce to believe it was a safe to take a cruise on March 1, 2020, that apparently led to his death; and (2) Mr. Hannity (allegedly) disseminated “misinformation” about the pandemic. Both of these implied statements are completely false. Moreover, the language in the April 18, 2020 Story reflects that you intended these false inferences, by how you deliberately manipulated the wording to create the false narrative. The Stories also encourage readers to draw the false conclusion that Mr. Hannity has no concern for the lives of his viewers.

These false statements do not constitute protected opinion. A statement is not an opinion if “a reasonable listener … could have concluded that [the defendant] was conveying facts about the plaintiff.” Enigma Software Group USA, LLC v. Bleeping Computer LLC, 194 F.Supp.3d 263, 281 (S.D.N.Y. 2016). Here, the Stories went far beyond an opinion about Mr. Hannity’s coverage of the coronavirus pandemic, instead mischaracterizing his on-air comments and drawing a causal connection between them and a cruise that started more than a week earlier.

You have acted with actual malice in publishing the foregoing statements. As detailed herein, it was readily apparent at the time of publication that Mr. Hannity had devoted substantial, truthful coverage to the coronavirus, and his remarks attributed by you were made eight days after Mr. Joyce had already embarked on his cruise. Thus, you consciously disregarded the falsity of your statements in publishing them. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Based on the foregoing, we demand that you promptly remove the foregoing false and defamatory statements from the Stories and any subsequent republications in print or any other medium, and publish a full, fair and conspicuous retraction, correction and apology as to each of the false and defamatory statements identified above, with as prominent placement as the original statements.

Your malice is further evidenced by the clear bias you have exhibited by your repeated attacks against Mr. Hannity and mischaracterization of his coverage of the coronavirus, all while disregarding numerous statements minimizing the pandemic by Democratic Party politicians and Democratic Party-friendly media outlets, including during late February and early March, which you proclaim to have been a “critical” or “crucial” time period.

By way of example, New York Mayor Bill de Blasio minimized the seriousness of the coronavirus pandemic on numerous occasions, including:

• On January 24, 2020, Mayor de Blasio stated the following to the press in reference to the coronavirus pandemic: “[I]t’s important to just go about your lives, continue living as you have because there is no indication that casual contact with some who is infected could lead to others contracting this disease…Yes people should enjoy the Lunar New Year, I’m going to be participating myself. I want to urge everyone to be part of those celebrations…” https://www1.nyc.gov/office-of- the-mayor/news/039-20/transcript-mayor-de-blasio-holds-media-availability-the-city- s-response-the-novel-coronavirus (emphasis added).
• In a March 2, 2020 tweet, Mayor de Blasio encouraged New York residents to go the movies: “Since I’m encouraging New Yorkers to go on with your lives + get out on the town despite Coronavirus, I thought I would offer some suggestions. Here’s the first: thru Thurs 3/5 go see ‘The Traitor’…”https://twitter.com/BilldeBlasio/status/1234648718714036229 (emphasis added).
• In a March 10, 2020 interview on MSNBC, Mayor de Blasio stated: “We have 25 cases of [coronavirus] this morning. We care deeply about each of those individuals, but against the backdrop of 8.6 million people, and for the vast majority of New Yorkers, life is going on pretty normally right now. We want to encourage that…if you’re under 50 and you’re healthy, which is most New Yorkers, there’s very little threat here. This disease, even if you were to get it, basically acts like a common cold or flu. And transmission is not that easy. And transmission is not that easy. I think there has been a misperception that coronavirus hangs in the air, waiting to catch you. No. It takes direct person-to-person contact, direct transmission of fluids.” https://www.msnbc.com/morning-joe/watch/de-blasio-new-york-can-t- shut-down-over-undue-fear-80390725536 (emphasis added).

New York Governor Andrew Cuomo minimized the seriousness of the coronavirus pandemic on numerous occasions, including:

• In a January 24, 2020 Tweet, Governor Cuomo stated: “State health officials are carefully monitoring this novel coronavirus, and we are prepared. The current risk to New Yorkers is low.”https://twitter.com/NYGovCuomo/status/1220802912479272963 (emphasis added).
• On January 26, 2020, Governor Cuomo stated to the press: “While the experts still believe the risk of catching this novel coronavirus is currently low in New York, I want all New Yorkers to know we are prepared and continue to take all necessary steps to keep people informed and safe.” https://www.governor.ny.gov/news/governor-cuomo-announces-states-continued- response-novel-coronavirus-three-more-individuals-are (emphasis added).
• On January 26, 2020, Governor Cuomo stated to the press: “New York does not have one single confirmed case of the novel coronavirus, but we are taking every necessary precaution to protect against its spread into our state. We have been here before, and I want to remind New Yorkers that it is much more likely that they will be exposed to the influenza virus than to the coronavirus.” https://www.governor.ny.gov/news/governor-cuomo-provides-update-novel- coronavirus-while-reminding-new-yorkers-flu-still (emphasis added).
• On February 2, 2020, Governor Cuomo stated to the press: “There is no reason to panic. There is no reason to have an inordinate amount of fear about this [coronavirus] situation. There are different viruses that develop on an ongoing basis. Take everyone seriously, but don’t have an overly anxious reaction to any one situation.” https://www.governor.ny.gov/news/video-audio-rush-transcript-governor- cuomo-issues-update-novel-coronavirus-and-announces-new (emphasis added).
• On February 7, 2020, Governor Cuomo stated to the press: “We went through this before: Zika virus, Ebola, et cetera. But let’s have some connection to the reality of the situation, and as the doctor said, catching the flu right now is a much greater risk than anything that has anything to do with Coronavirus.” https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-novel- coronavirus-and-urges-continued-awareness-while-flu-0 (emphasis added).
• On March 5, 2020, Governor Cuomo stated to the press: “The facts do not merit the level of anxiety that we are seeing…The number will increase because it is math. The more people you test, the more positives you are going to find. I’m a little perturbed about the daily angst when the number comes out and the number is higher. Perturbed meaning, I’m perturbed that people get anxious every time the number goes up. The number has to go up if you continue to test.” https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-novel- coronavirus-briefing-governor-cuomo-confirms-11 (emphasis added).
• On March 9, 2020, during an interview on MSNBC, Governor Cuomo stated: “Well, you know, people are very, very anxious. There’s a lot of fear. This virus is not as dangerous as many of the viruses we’ve seen before, right? H1N1 was complicated. Ebola was a frightening virus…I think the anxiety is unduly high.”https://www.governor.ny.gov/news/audio-rush-transcript-governor-cuomo-guest- msnbc-katy-tur (emphasis added).

Dr. Fauci, one of the nation’s foremost infectious disease experts, minimized the seriousness of the coronavirus on numerous occasions, including:

• During a January 21, 2020 interview, Dr. Fauci stated: “[T]his [the coronavirus] is not a major threat for the people of the United States, and this is not something that the citizens of the United States right now should be worried about.”https://dailycaller.com/2020/04/03/flashback-fauci-coronavirus-us-threat-trump/ (emphasis added).
• During a January 31, 2020 Coronavirus Task Force press conference, Dr. Fauci stated in reference to the coronavirus: “We still have a low risk to the American public, but we want to keep it at a low risk.” https://www.whitehouse.gov/briefings- statements/press-briefing-members-presidents-coronavirus-task-force/ (emphasis added).
• During a February 29, 2020 interview, Dr. Fauci stated in response to American citizens going to malls, movies and the gym: “Right now at this moment, there is no need to change anything that you are doing on a day-by-day basis. Right now the risk is still low…” https://www.today.com/video/dr-fauci-on-coronavirus-fears- no-need-to-change-lifestyle-yet-79684677616 (emphasis added).
• As referenced above, during a March 9, 2020 interview Dr. Fauci stated: “If you are a healthy young person, there is no reason if you want to go on a cruise ship, go on a cruise ship.” https://www.forbes.com/sites/douggollan/2020/ 03/09/fauci-says- cruising-is-ok-if-you-are-healthy/ (emphasis added).

Speaker of the House Nancy Pelosi minimized the seriousness of the coronavirus pandemic on numerous occasions, including:

• On February 24, 2020, Speaker Pelosi stated the following while in San Francisco’s Chinatown: “We want to be vigilant about what is out there in other places. We want to be careful about how we deal with it, but we do want to say to people ‘Come to Chinatown, here we are — we’re, again, careful, safe — and come join us.’”https://www.washingtonexaminer.com/news/pelosi-encouraged-public-gatherings-in- late-february-weeks-after-trumps-china-travel-ban (emphasis added).
• On February 24, 2020, Speaker Pelosi stated the following while in San Francisco’s Chinatown: “We want to be vigilant about what is out there in other places. We want to be careful about how we deal with it, but we do want to say to people ‘Come to Chinatown, here we are — we’re, again, careful, safe — and come join us.’”https://www.washingtonexaminer.com/news/pelosi-encouraged-public-gatherings-in- late-february-weeks-after-trumps-china-travel-ban (emphasis added).
• On April 14, 2020, Speaker Pelosi, in an interview with late night host James Corden, made light of the coronavirus shelter-in-place situation and showed off an extensive supply of ice cream in her home. https://www.youtube.com/watch?v=DgfumenJbXE.

The Washington Post minimized the seriousness of the coronavirus pandemic on numerous occasions, including:

• In a January 31, 2020 story, entitled “How our brains make coronavirus seem scarier than it is,” which stated, among other things: “[t]he flu is a far more infectious and deadly disease” than the coronavirus. The risk, however, for the flu is through the roof.” http://transcripts.cnn.com/TRANSCRIPTS/2002/15/cnr.08.html (emphasis added).
• On a March 4, 2020 episode of Anderson Copper 360, Anderson Cooper told viewers that they “should be more concerned about the flu” than the coronavirus. https://dailycaller.com/2020/03/21/flashback-cnn-anderson-cooper-flu- coronavirus/ (emphasis added).

Your attempt to single out and attack Mr. Hannity for his coronavirus coverage, when he was more responsible in his coverage that all of the foregoing individuals and media outlets, and your intentional disregard for the foregoing irresponsible Democratic Party politicians and Democratic Party-friendly media outlets, including ABC, NBC, CBS, and MSNBC establishes clear bias on your part in connection with Mr. Hannity and the Stories.

Please confirm in writing within twenty-four (24) hours of transmission of this letter that you will retract, correct and apologize for each of the foregoing statements. Failure to do so will leave Mr. Hannity with no alternative but to consider instituting immediate legal proceedings against you. Should that occur, Mr. Hannity would pursue all available causes of action and seek all available legal remedies to the maximum extent permitted by law, including without limitation, actual damages, special damages, punitive damages, and temporary and permanent injunctive relief.

You are officially on notice of this dispute and therefore you (including all writers, editors and publishers of the Stories, as well as The New York Times company as a whole) are required to undertake immediate steps to affirmatively preserve, and not delete, any and all physical and electronic documents, materials, information, and data that pertain in any way to the Stories and/or Mr. Hannity, including without limitation all emails, text messages, instant messages (IMs), letters and memoranda, articles, and social media postings (including all drafts as well as final versions of all written communications), as well as all other types of written, physical and digital materials including handwritten notes, typewritten notes, summaries, charts, receipts, audio recordings, video recordings, photographs, telephone call logs, calendar entries of all types, financial data and information, etc. that pertain in any way or might otherwise be relevant or related to the foregoing matters. All sources of documents, materials, information, and data should be preserved, including without limitation, physical files, electronic and digital files, computer servers, email servers, backup tapes, cloud storage, personal computers, hard drives, smart phones, tablets, and other types of storage devices including external drives, thumb drives, zip drives, disks and DVDs. Failure to affirmatively preserve such documents and materials could result in severe sanctions imposed by a court which could include, among other remedies, monetary sanctions, evidentiary sanctions, issue sanctions and/or the striking of an answer and entry of a default judgment.

This letter is not intended as a full or complete statement of all relevant facts, applicable law, causes of actions or legal remedies, and nothing herein is intended as, nor should it be deemed to constitute, a waiver or relinquishment of any of our client’s rights, remedies, claims or causes of action, all of which are hereby expressly reserved.

We look forward to your prompt response to this letter.

Very truly yours,

cc: Mr. Sean Hannity

Dilan A. Esper, Esq.

Steven H. Frackman, Esq.