Images and Mentions Are Not Enough: Third Circuit Clarifies “Of and Concerning” and Reaffirms Opinion/Substantial-Truth Shields for Political Commentary

Case: Nina Jankowicz v. Fox News Network LLC and Fox Corp.

Court: U.S. Court of Appeals for the Third Circuit

Date: September 12, 2025

Disposition: Affirmed dismissal (Rule 12(b)(6))

Note: Not precedential under 3d Cir. I.O.P. 5.7

Introduction

This appeal arises from defamation-per-se claims brought by Nina Jankowicz, the former Executive Director of the Department of Homeland Security’s Disinformation Governance Board. After the Board’s creation prompted a wave of public and media scrutiny, Fox News programs repeatedly criticized the Board and Jankowicz. She alleged that Fox’s commentary defamed her in three principal ways: (1) by asserting she intended to censor or surveil Americans and could even jail them, (2) by saying she was fired or “booted” from DHS, and (3) by claiming she wanted to give verified Twitter users the power to edit others’ tweets (based on her 2021 remarks about Twitter’s “Birdwatch” pilot).

The District Court dismissed the complaint, holding that the challenged statements were either not “of and concerning” Jankowicz, were protected opinion, or were substantially true. The Third Circuit, applying New York substantive law by the parties’ stipulation, affirmed on all three grounds and did not reach the remaining issues (falsity beyond substantial truth, actual malice, per se categories, or parent-corporation liability).

Summary of the Opinion

“Of and concerning”: Broad attacks on a government program (the Disinformation Governance Board) were not “of and concerning” Jankowicz merely because her name or image appeared in the same segment. The court emphasized the Supreme Court’s instruction against converting criticism of government into personal libel of officials absent specific targeting (New York Times v. Sullivan; Rosenblatt v. Baer).
Opinion vs. fact (political commentary context): Statements that Jankowicz would “censor,” “surveil,” or even jail Americans were either speculation about motives/future actions, hyperbole, or lacked a precise, falsifiable meaning in context—thus non-actionable opinion under New York law (Gross; Steinhilber; Immuno AG).
Substantial truth—“firing” vs. “resignation”: Given that the Board was paused, her position eliminated, and she declined an alternative temporary policy role, describing her departure as being “fired,” “booted,” or “yanked” was substantially true because it carried the same “gist” or “sting” (Masson; Tannerite).
Birdwatch statements: Jankowicz’s own description of Birdwatch as allowing verified users to “edit” Twitter “like Wikipedia,” coupled with her saying “I like that,” rendered characterizations that she had “pitched” the idea or viewed it as “her fix” substantially true in gist.
Unreached issues: Because none of the statements were actionable, the court did not reach actual malice, defamation per se, or parent-company liability (Fox Corp.).

Analysis

Precedents Cited and Their Influence

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Rosenblatt v. Baer, 383 U.S. 75 (1966):
These foundational First Amendment cases guided the court’s “of and concerning” analysis in the public-official context. Sullivan warned against transforming generalized government criticism into personal libel of officials; Rosenblatt requires evidence that an audience would read the attack as specifically directed at the plaintiff. The panel relied on this to reject the argument that using an official’s image or mentioning her name in a segment criticizing a government entity suffices to make the statements about her.
Elias v. Rolling Stone LLC, 872 F.3d 97 (2d Cir. 2017) and Palin v. New York Times Co., 940 F.3d 804 (2d Cir. 2019):
These Second Circuit cases supplied the plausibility standard for the “of and concerning” element under New York law. While the bar is “plausible” rather than “probable,” the Third Circuit concluded that merely juxtaposing a government official’s name or photo with criticism of a government board does not meet even that threshold.
Gross v. New York Times Co., 82 N.Y.2d 146 (1993) and Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986):
These decisions provide New York’s three-factor framework for distinguishing fact from opinion: precision of language, verifiability, and contextual signals to the audience. The court applied this to hold that charged terms like “censorship” and “thought control,” used amid political commentary, lack the precision and verifiability necessary for defamation liability.
Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991):
Used to separate speculative predictions from verifiable assertions. The panel stressed that predictions about Jankowicz’s future conduct (e.g., what she “will” do) were not verifiable facts, distinguishing Immuno’s narrow example where plans were objectively verifiable.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) and Tannerite Sports, LLC v. NBCUniversal News Group, 864 F.3d 236 (2d Cir. 2017):
These authorities ground the “substantial truth” doctrine. The court relied on their “gist” or “sting” approach to hold that describing Jankowicz as “fired” was close enough to the reality of her position’s elimination and resignation decision, and that describing her Birdwatch comments as having “pitched” the idea was substantially accurate.
Pleading/Review Standards: Ashcroft v. Iqbal, 556 U.S. 662 (2009); McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240 (3d Cir. 2014); Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016).
These cases supply the Rule 12(b)(6) framework: assume well-pleaded facts as true, draw reasonable inferences, and ask whether the claim is plausible on its face.

Legal Reasoning

“Of and concerning” and government-program criticism
The panel rejected the notion that a broadcaster’s on-screen use of an official’s photo or mention of her name, when commenting about a government program, transforms the program critique into a personal attack. Citing Sullivan and Rosenblatt, the court underscored that such a rule would chill core political speech—precisely what the First Amendment seeks to avoid. Because the segments’ thrust was the Board itself, not Jankowicz personally, these statements failed the “of and concerning” requirement.
Opinion vs. fact in a political-commentary context
For statements directly about Jankowicz, the court held that accusations that she would “censor,” “surveil,” or even jail Americans were not actionable. Applying New York’s tripartite test:
- Precision: Terms like “censorship” and “thought control” are amorphous and politically charged without a single, precise, and commonly accepted meaning.
- Verifiability: Speculation about motives or future conduct is not readily capable of proof or disproof.
- Context: The statements arose during intense political debate about the Board—a setting in which audiences expect hyperbole and rhetorical flourish.
The combination of conjecture and hyperbole pushed these statements squarely into non-actionable opinion.
Substantial truth—“fired,” “booted,” and “yanked”
On the “firing” category, the court emphasized “gist/sting.” The Board was paused, eliminating the Executive Director role; Jankowicz was offered a temporary policy post but resigned. Describing that outcome as being “fired,” “booted,” or “yanked” conveyed the same essential sting as the actual events. Minor imprecision does not defeat substantial truth.
Birdwatch—partial endorsement supports “pitched”/“her fix” characterization
Jankowicz’s own words described Birdwatch as enabling verified users to “edit” Twitter, “like Wikipedia,” and she said “I like that.” While she also expressed reservations about scalability and whether it would be a comprehensive solution, her favorable statements made it substantially true to characterize the feature as something she had “pitched” or as “her fix”—the gist being that she expressed approval.
Unreached elements
Because the case was resolved on “of and concerning,” opinion, and substantial truth, the court declined to address falsity beyond substantial truth, actual malice (a requirement for public officials), per se categories under New York law, and corporate parent liability.

Impact and Practical Significance

“Of and concerning” in the age of televised and online segments: The decision squarely rejects the theory that merely placing a government official’s image on screen or referencing her name in a segment criticizing a government unit suffices to make the statements actionable as to the official. Plaintiffs will need concrete allegations that the statements themselves were read as specifically about the person, not just the office or program.
Robust protection for political commentary: The opinion reinforces the strong First Amendment and New York common-law tradition that political rhetoric, predictions, and hyperbole—especially around hot-button issues—are treated as opinion unless tethered to precise and verifiable facts. Media defendants have a reinforced shield where the language is rhetorical and the context is political debate.
“Fired” vs. “resigned” narratives: Where a position is eliminated or rendered untenable (e.g., a program is “paused” and the role disappears), characterizing the departure as being “fired” may be substantially true. Plaintiffs challenging such language will need to show that the “sting” differs meaningfully from the reality of a forced or functionally involuntary departure.
Partial endorsements and the “gist” of speech: If a plaintiff voices approval of a proposed feature or policy (even with caveats), descriptors like “pitched” or “her fix” may be insulated by substantial truth. The takeaway is that courts look at the overall gist; nuanced or mixed statements can still support simplified but substantially accurate summaries.
Strategic pleading under New York law: Because the parties chose New York law, the fact/opinion framework (Gross; Steinhilber) and the substantial-truth focus on “gist/sting” governed. Litigants should be mindful that stipulating to New York law often strengthens opinion defenses in media cases.
Actual malice avoided—yet looming: Although the panel did not reach actual malice, the subtext is that public officials face multiple early-stage hurdles. Even before malice, claims can fail on “of and concerning,” opinion, and substantial truth. That layered protection will continue to steer many public-official defamation suits toward early dismissal.
Non-precedential but influential: While not binding precedent, the decision synthesizes central principles in a contemporary media context. Expect litigants to cite it for its clear articulation that images/mentions do not satisfy “of and concerning,” and for its application of New York’s opinion and substantial-truth doctrines to political commentary.

Complex Concepts Simplified

“Of and concerning”: The statement must be reasonably understood to be about the plaintiff. Criticism of a government body is not automatically about its leaders. Simply showing a person’s photo or saying their name during program-focused criticism is not enough.
Opinion vs. fact: Only factual statements can be defamatory. Courts ask whether the language has a precise meaning, whether it can be proven true/false, and whether the context signals opinion (e.g., political commentary with hyperbole). Vague, rhetorical, or predictive statements usually count as opinion.
Substantial truth (“gist”/“sting”): A statement can be technically inaccurate yet still non-actionable if its overall impact on the reader/listener matches the truth. The law protects close-enough descriptions that do not materially worsen the sting of the true facts.
Actual malice (not reached here): Public officials must show the defendant knew the statement was false or recklessly disregarded its probable falsity. This is a high bar that the court did not need to address because other elements failed first.
Defamation per se (not reached here): Certain categories of statements are presumed harmful (e.g., imputing a serious crime). Even then, plaintiffs must get past “of and concerning,” opinion, and substantial truth.
Non-precedential disposition: The Third Circuit marked this decision as not binding on future panels, but it remains persuasive and instructive, especially given its careful application of New York law to modern media speech.

Conclusion

The Third Circuit’s decision in Jankowicz v. Fox News Network LLC affirms three interlocking guardrails that often dispose of public-official defamation suits at the pleading stage: (1) program-focused criticism is not automatically “of and concerning” the official leading the program, even if the official’s image or name appears; (2) politically charged rhetoric, speculation about motives or future actions, and hyperbole are non-actionable opinion under New York law; and (3) minor inaccuracies give way to substantial truth where the “gist” or “sting” matches reality—here, both in describing a de facto ouster as being “fired” and in characterizing favorable remarks about Birdwatch as a “pitch” or “fix.”

Although designated non-precedential, the opinion meaningfully clarifies how entrenched First Amendment and New York defamation principles apply to modern, fast-paced political commentary. For government officials contemplating litigation, the case underscores the necessity of pinpointing statements that are specifically about them, objectively verifiable as false, and materially divergent from the truth’s sting. For media speakers, it reinforces the substantial leeway afforded to commentary, especially when the language is rhetorical and the context is political debate.