SAN DIEGO (CN) — A Pulitzer Prize-winning national correspondent for The New York Times dodged a lengthy list of defamation claims Monday in a case brought against him by the subject of his newly published book: former Navy SEAL Edward “Eddie” Gallagher.
Gallagher was exonerated on the most egregious war crimes charges in a court martial held in San Diego in 2019 where he was accused of stabbing a teenage Islamic State group fighter to death after the young man had been wounded.
A jury of Gallagher’s peers found he was only guilty of posing for illegal pictures taken of the IS fighter, prompting the U.S. Navy to reduce Gallagher’s rank from an E7 to an E6 and his responsibilities, salary and pension benefits with it.
The conviction came with four months of confinement, which Gallagher received credit for time served, as he was detained pre-trial in the brig.
Within months of the two-week trial, then-President Donald Trump — who had previously tweeted out support for Gallagher — restored Gallagher’s rank and pay.
David Philipps, a reporter for The New York Times who extensively covered Gallagher’s case using 500 pages of leaked Navy documents and attended the two-week trial, recently released a book about the case called “Alpha: Eddie Gallagher and The War for the Soul of the Navy SEALs.”
Philipps was on the receiving end of Gallagher’s post-trial ire in 2020 when Gallagher sued him in the Southern District of California, claiming Philipps was hand-selected to be the Navy’s “chief mouthpiece” in an alleged negative publicity campaign to pressure Gallagher to accept a plea deal prior to the court martial.
Gallagher claimed starting April 23, 2019, Philipps began publishing “false and misleading information” about him in Times articles, an appearance on the Times' podcast “The Daily” and in a “companion piece” Philipps published in conjunction with an FX-produced documentary about Gallagher.
He also sued Navy Secretary Kenneth John Braithwaite II in the case.
In a 66-page order Monday, U.S. District Judge Janis Sammartino found most of the defamation claims brought against Philipps did not hold up under California’s anti-SLAPP statute ensuring free speech.
Her line-by-line analysis of Gallagher’s challenged statements in 31 of Philipps’ articles found some of them to be “too generalized” to be evaluated as defamatory or libelous and to have been used to contextualize the articles.
Most of the challenged statements in Philipps’ articles centered around explosive trial testimony by Special Operator Corey Scott, one of Gallagher’s teammates who claimed he — not Gallagher — killed the IS fighter by plugging his breathing tube and asphyxiating him.
Philipps cited the pivotal moment in much of his reporting of the court martial and credited the testimony with throwing a wrench in the case presented by Naval Criminal Investigative Service prosecutors.
When he claimed to have killed the IS solider while testifying on the stand, Scott said of Gallagher: “He’s got a wife and family … I don’t think he should spend the rest of his life in prison.”
Gallagher didn’t dispute Scott said the quote on the stand but said Philipps' reporting was defamatory because the statements were made when Scott was answering different questions when testifying during the trial.
But even though the response was patchworked in Philipps’ reporting, Sammartino found it doesn’t amount to defamation.
“Special Operator Scott’s answer is not taken out of context such that the truth would have a different effect on the mind of the reader. The statement is protected by the fair and true reporting privilege and cannot serve as a basis for an allegation of defamation,” she wrote.
Other statements Gallagher challenged in Philipps’ reporting were based on unactionable opinion, the George W. Bush appointee found.
Gallagher is represented by Timothy Parlatore of New York-based Parlatore Law Group, who said his client is weighing options.
“Even though the legal standard for defamation in California is high, it demonstrates Dave Philipps fails to get basic facts accurately,” Parlatore said, noting they had 30 days to amend the complaint and the claims Sammartino dismissed were due to privilege.
He added: “We’ll be examining whether to bring a separate action in Florida for the contents of that book.”
Philipps is represented by Thomas Burke of Davis Wright Tremaine, who did not respond to an email request for comment.
No court hearings are currently scheduled in the case.
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