A federal appeals court has ruled against Nina Jankowicz in her defamation lawsuit against Fox News, finding that the network’s coverage, while harsh and frequently personal, was protected under the First Amendment as opinion or substantially true.
The Third Circuit issued its decision on Friday, affirming a lower court’s dismissal of the case.
Jankowicz, who served briefly as Executive Director of the Department of Homeland Security’s Disinformation Governance Board in 2022, argued that Fox News had targeted her with a smear campaign that misrepresented her role as being pro-censorship.
The court concluded that Fox’s statements did not meet the legal standard for defamation.
Jankowicz held the DHS position for less than three months. Her role was confined to coordinating and recommending best practices regarding disinformation threats to national security.
After the Board’s public announcement in April 2022, Fox News repeatedly criticized both the Board and Jankowicz.
Network hosts and guests aired segments calling the Board a “Ministry of Truth” and warned that it posed a danger to free expression.
Jankowicz claimed her photo was frequently shown during these broadcasts and that she was personally attacked, described as someone intent on censoring Americans.
DHS, along with other officials and even the White House Press Secretary, said that the Board had no enforcement authority.
Fox News continued to run segments making the same accusations. One point of focus for Fox was an interview in which Jankowicz discussed Twitter’s Birdwatch initiative.
On May 18, 2022, DHS announced that the Board would be paused. Jankowicz was offered a position as a policy advisor but chose to resign.
Fox personalities celebrated her departure, claiming she was “booted” or “yanked,” and suggested that her presence had embarrassed the administration.
Jankowicz brought a defamation suit against Fox, citing three primary claims.
According to the opinion by Judge Restrepo, the court found that the statements highlighted by Jankowicz fell into three categories: that she intended to censor speech, that she was fired from DHS, and that she supported verified Twitter users being able to edit others’ tweets.
The judges agreed with the lower court that none of these statements constituted defamation per se under the law.
The ruling emphasized that statements must be clearly “of and concerning” the plaintiff to be considered defamatory.
Despite Jankowicz’s argument that her image and name were frequently used during Fox’s segments on the Disinformation Governance Board, the court held that this was insufficient.
Referencing Rosenblatt v. Baer and New York Times Co. v. Sullivan, the court reiterated that criticism of government entities cannot be automatically equated with personal attacks on individuals within those entities. The panel wrote:
“Nor does merely referencing an official in the same segment that a critique of government is made—nor using an official’s photo as ‘a visual placeholder’… show that an ‘attack was read as specifically directed at the plaintiff.’”
On the claim that Fox had falsely accused her of pushing censorship, the court concluded the network’s statements fell under constitutionally protected opinion, especially given the political nature of the discourse.
The court noted that accusations of “censorship,” “thought control,” or calling Jankowicz “our new disinformation minister” are the kind of “hyperbolic descriptions” commonly found in political debate.
The judges ruled that these were not provable statements of fact and thus not defamatory under New York law.
“Such an amorphous political accusation cannot be assessed as true or false until the term is given a more precise meaning and thus, these statements lack the precision to give rise to a defamation claim,” the opinion stated.
Jankowicz also objected to Fox’s framing of her departure from DHS as a firing. Fox hosts had described her as having been “booted” or “yanked” from her post, while she argued she had voluntarily resigned after the board was paused.
But the court found no meaningful difference. It pointed out that the board was effectively shut down and that although she was offered a reassignment, she declined. The opinion concluded:
“There was no error in the District Court’s determination that this turbulent departure from DHS had the same gist and sting as a firing.”
Finally, the court reviewed statements about Jankowicz’s remarks on Twitter’s “Birdwatch” program, which allows users to add context to tweets.
Fox hosts had claimed she wanted to let verified users “edit” other users’ posts. The court said that interpretation was “substantially true,” quoting her own words where she described Birdwatch as a system that would let users “essentially start to ‘edit’ Twitter.”
Even though she included caveats about the limitations of the program, the court concluded that her comments amounted to a partial endorsement.
“Because Jankowicz expressed appreciation for the Birdwatch feature—even though she noted it was not a global solution to Twitter’s problems—it was substantially true to say she had ‘pitched’ it and that the feature was ‘her fix.’”
The court’s decision ultimately reaffirmed long-standing First Amendment protections, particularly for speech about public officials and government programs.
The ruling cautioned against stretching defamation law to silence media commentary on public affairs, no matter how intense or one-sided that coverage may appear.
“Jankowicz’s position—that criticism of government is transformed into actionable defamation when a television program displays an image of a government official or references a government official’s name in the same segment—is precisely the sort of attack on core free expression rights that Sullivan sought to avoid,” the court wrote.
The judgment signals a robust defense of political commentary and journalistic expression, particularly when it targets those in or associated with government power.
