In the News, On the Bar Exam: Defamation, the FBI Director, and the Two “F” Words That Matter

If you’ve been following the news, you may have seen the lawsuit filed by FBI Director Kash Patel against The Atlantic and one of its writers, alleging a “sweeping, malicious, and defamatory hit piece” that was published on April 17, 2026.

As always with my "In the News, On the Bar Exam" series, let me start here: I’m not weighing in on whether the lawsuit is correct, justified, or politically motivated. Instead, I’m using this headline as a bar exam opportunity because buried in this real-world dispute is a doctrine you are very likely to see tested in some form: Constitutional defamation.

Start Where You Should Always Start: The Statement

Every defamation analysis begins with the statement itself.

Ask: Does the statement tend to harm the plaintiff’s reputation?

According to the complaint, the article alleged that Director Patel:

• Drank to the point of intoxication

• Was difficult to reach or wake for official duties

• Delayed investigations

• Posed risks to national security

If false, these types of statements go directly to fitness for office and professional competence. That’s classic defamatory territory.

The statements are also clearly of or concerning the plaintiff. They name him directly and focus on his conduct.

But even here, a careful reader should pause.

A defendant might argue that some of these statements are not pure facts, but rather interpretations, characterizations, or opinions based on reported behavior. On the bar exam, that distinction matters. Only false statements of fact (not opinions) are actionable.

Publication Is Straightforward but Still Required

The complaint alleges that the statements were published online and widely disseminated. That easily satisfies the publication requirement.

There’s typically not much room for dispute here. But it still needs to be stated in your analysis. Don't leave easy points on the table.

The First “F”: Falsity

Now we move into constitutional territory. The plaintiff must prove that the statements are false.

The complaint pushes hard on this point, alleging:

• The FBI warned the defendants before publication that the claims were “totally false”

• Specific allegations (like alcohol abuse or security incidents) were “made up”

• Public records allegedly contradict the narrative presented in the article

From a bar exam perspective, this is exactly what you want to see: A direct dispute over truth. But this is also where the defense has meaningful counterarguments.

Defendants might argue:

• Their reporting was based on sources they believed to be credible

• Some statements reflect subjective impressions (e.g., “erratic behavior”) rather than verifiable facts

• The article may contain substantially true statements, even if not perfectly accurate in every detail

Remember: Truth is a complete defense, and even substantial truth can defeat a defamation claim. Even if parts of a statement are inaccurate, there is no liability if the “gist” of the statement is true.

The Second “F”: Fault

Now we get to the most heavily tested issue: Fault.

Under ordinary circumstances, a plaintiff must show at least negligence. But when the plaintiff is a public official, the standard becomes much higher.

Under New York Times Co. v. Sullivan, the plaintiff must prove actual malice, and the plaintiff must do so by clear and convincing evidence, not just a preponderance.

Actual malice means:

• Knowledge that the statement was false, or

• Reckless disregard for whether it was true or false

The complaint points to several facts aimed at meeting this standard:

• Pre-publication warnings that the allegations were false

• A short response deadline allegedly limiting meaningful rebuttal

• Heavy reliance on anonymous sources

• Alleged failure to investigate or reconcile contradictory information

• A detailed pre-publication letter that was allegedly ignored

These are strong facts to argue actual malice.

But again, this is not a slam dunk. Defendants might respond:

• Reliance on anonymous sources is common in journalism and does not itself establish actual malice

• Even flawed or rushed reporting does not necessarily show reckless disregard

• Including denials from officials may demonstrate an effort to present competing viewpoints

• The standard is intentionally difficult to meet to protect speech about public officials

This is a high constitutional bar, and many plaintiffs fail to meet it, even in cases involving serious allegations.

What About Damages?

The complaint alleges significant reputational harm and seeks substantial damages (in fact, $250 million).

In many jurisdictions, statements that harm someone in their profession may qualify as defamation per se, meaning damages can be presumed.

But even here, defenses remain. Some jurisdictions limit damages, and publishers may mitigate exposure through retractions or corrections.

Why This Is a Classic Bar Exam Scenario

This case is almost tailor-made for a bar exam essay because it sits right at the tension point between protecting reputation and protecting free speech about public officials.

You have:

✅ A public official

✅ A media defendant

✅ Disputed facts

✅ Questions about sourcing and editorial judgment

Read the full complaint here.