CoreCivic argued that Simon’s statements regarding its involvement in running detention centres that housed separated families were defamatory. CoreCivic denied that it “operated any immigration detention facilities for children separated from their parents pursuant to the government’s family separation policy.” [p. 18] Alternatively, CoreCivic contended defamation by false implication. CoreCivic argued that it would be “reasonable” to interpret Simon’s statements tying CoreCivic to “family separation” as implying that it held children separated from their parents in its facilities, especially so because Simon mentioned that “the terminology of ‘family separation’ tends to focus on the detention of children.” [p. 18] CoreCivic further highlighted a picture included in the September 25, 2018 article which could be linked to CoreCivic’s detention of children visually.

CoreCivic also pleaded distinct theories of express and implied defamation in relation to Simon’s statements about its lobbying practices.

In defamation actions against public figures or involving statements about matters of public concern, a plaintiff must plead that the allegedly defamatory statements are false. [p. 17] The Court observed that CoreCivic did not contest the assertion that the allegedly defamatory statements pertained to matters of public concern and that in order to plead falsity, CoreCivic had to deny the “substance of the charge.” [p. 18] The Court determined that “CoreCivic failed to contest the substance of the charges made against it in Simon’s articles.” [p. 18] CoreCivic had made a very “specific denial” and stated that it did not operate immigration detention facilities for children separated from their parents, however the court noted that Simon did not state this in his article. The Court stressed that the substance of Simon’s charge was “much broader, it was that CoreCivic was involved in the business of family separation and incarceration at the border.” [p. 18]

Therefore, the Court determined that CoreCivic had failed to plead that the allegedly defamatory statements were false as required in a defamation suit.

The Court further observed that “even if a statement is literally accurate, defamation may be proven if it has a false implication” as stated in Hawran v. Hixson, 209 Cal. App. 4th 256. [p. 18] However, the Court rejected CoreCivic’s allegations of implied defamation. The Court reiterated that the published statement must “reasonably be understood as implying the alleged defamatory content” as held in Price v. Stossel, 620 F.3d 992, 1003. [p. 18] The Court ruled that Simon’s statements could not reasonably be interpreted as suggesting that CoreCivic detained children separated from their parents.

The Court noted that the statements alleging CoreCivic as managing detention centres at the heart of the controversy over the separation of families and profiting off the pain and separation of families could not reasonably imply that they housed children separated from families. The Court observed that the statement – “the terminology of ‘family separation’ tends to focus on the detention of children” did not appear in Simon’s original article and was added as part of a “clarification” required by CoreCivic’s legal team. [p. 19] The Court observed that the main purpose of this clarification was to convey that CoreCivic had not detained children while including a direct quote from CoreCivic that “CoreCivic does not and has never housed children separated from their parents.” [p. 19]

Therefore, the Court concluded that interpreting these statements in any other way than suggesting that “CoreCivic did not detain such children” would be unreasonable. [p. 20]

The Court rejected CoreCivic’s assertion that the images in the article which stated that “I Am A Child”, “Families Belong Together” and “Moms Rising Against Family Separation” linked the issue of family separation and the detention of children visually. The Court discussed the precedent – Manzari v. Associated Newspapers Ltd., 830 F.3d 881 (9th Cir. 2016) where a photograph was considered the basis for a defamation by implication claim. In this case, the Court held that the publication of an image featuring a pornographic actor in a news article could reasonably suggest that the depicted actor had tested positive for HIV since it was captioned that “a performer had tested HIV positive.” However, in the instant case, the Court ruled that the images highlighted the family separation issue as a whole and did not explicitly reference the detention of children. The Court observed that neither the caption (“Mom’s Rising”) nor the headline of the article (“What Do Big Banks Have To Do With Family Detention? #FamiliesBelongTogether Explains.”) implied any connection to detention of children.