from the this is a problem... dept
Last Thursday a very silly defamation lawsuit was filed that has gotten a fair bit of attention online. I’ve been debating whether or not to even write it up, because it’s clearly frivolous and clearly designed for publicity. And yet, there are free speech/First Amendment implications here, and those are the kinds of things that we cover. My solution is this: I am writing about the lawsuit, but I’m not directly naming the plaintiff, who has a history of fairly trollish, attention seeking behavior, of which this appears to be the latest example. It will not be hard to figure out who the person is. I will include it in the tags and you can see it in the embedded lawsuit. But I’m not naming her in this story.
The background is pretty straightforward. The person in question, who is known as a strong Trump supporter (though, in the past also got attention as a strong Bernie supporter, and once said this: “I got called a literal Nazi so many times, I eventually went, Fuck it, I’ll just go all in.”) was at the White House and had a picture taken of herself and someone else, standing behind a podium, with both doing the “OK” sign with their hands. There was a stupid little thing a few months back where some 4chan trolls tried to pretend that the OK sign was a symbol for “White Power”. The idea was to get the press to report on this kind of thing and then laugh at how silly the press could be. Well, mission accomplished. A reporter for Fusion tweeted about the photo of these two people doing the “OK” sign were “White Power” hand signals being done in the White House.
The whole thing was pretty dumb all around. No one looks good coming out of this. For what it’s worth, the plaintiff in the lawsuit has been running around deleting a bunch of tweets in which she was “laughing at people being mad” at her making the OK symbol and joking about how reporters have “become so easy to troll.” It’s doubly ironic that she’s now deleting tweets, since in her own lawsuit, she points to the fact that the defendant deleted tweets as evidence of guilt (which is also silly). But, if you’re going to point to someone else deleting tweets as evidence of guilt, maybe don’t go deleting your own tweets too? It also probably doesn’t help her case that after the lawsuit was filed, she tweeted out a tweet admitting that 4chan “set a trap” for reporters.
That tweet alone basically should help kill the lawsuit, because it’s a direct admission that it wasn’t actual malice. Actual malice, under the law, means that the original statement was done with “knowledge that the information was false or published with reckless disregard of whether it was false or not.” When the plaintiff in the case then admits that it was a trap set to deliberately trick reporters like the defendant… uh… you have no case.
But, let’s get to the actual lawsuit itself, because it’s just chock full of ridiculous assertions about the First Amendment.
Many members of prominent media organizations see themselves as the exclusive
arbiters of truth. Protecting their self-declared monopoly, many of these “journalists” use their
perch of public influence to defame, slander and libel those they disagree with politically and
ideologically. They see the First Amendment as a sword, not a shield; they view the First
Amendment as only protecting those with elites on their rolodex, and view the First Amendment
as a wholly owned property of elite-backed journalists to smear and slime their adversaries at
will with libels and defamation. In fact, the First Amendment’s foundations rest on the
cornerstones of independent, outsider writers, scribes, advocates and journalists, from Thomas
Paine to Thomas Jefferson, almost always resisted by the establishment courtiers of. and
courtesans to, the truth-corrupted power of their day. The First Amendment is meant to protect
the [Plaintiff’s name] of the journalism world: independent. alternative voices of truth in a
sea of fake news. It is in this context that this suit arises.
Huh? Besides being horribly written, most of this opening paragraph makes no sense. I’ve got a long history of mocking bad coverage by the “mainstream” media on issues of importance, but I’ve never seen any hint or suggestion that the big media players think they have a monopoly on the First Amendment (let alone a “self-declared” one). I’ve seen no evidence that any of them think the First Amendment doesn’t apply to independent media at all. Quite the contrary — we’ve seen large media organizations willing to step up and help defend free speech of smaller independent media players and individuals.
Also… this is a weird way to open a defamation lawsuit. To be charitable, at best it seems to be arguing that the First Amendment should only mean that independent media can speak their mind, while mainstream media should be sued or chilled into silence? The rest of the lawsuit is just silly. It recounts the events and then claims that the original tweet was both defamation and false light.
Amusingly, again, the plaintiff in the case seems confused about her own case:
Well, she should read the opening paragraph of her own damn lawsuit where her lawyer makes it quite clear that it’s a First Amendment case. Second, a defamation case is by definition a First Amendment case, because defamation is one of the few, very narrow exceptions to the First Amendment. And to win a defamation case, you have to overcome a bunch of serious First Amendment hurdles which this case has almost no chance of clearing.
It’s notable (if unfortunate) that this case was filed in the federal district court in DC. You see, Washington DC actually has an excellent anti-SLAPP law that you would think should be useful in a case like this, that appears to be a standard-issue SLAPP suit. However, a few years ago, the DC Circuit went against most other circuits that had decided this issue (including the 9th and the 1st Circuits) and said that anti-SLAPP laws couldn’t be used in federal court. This was a bad and unfortunate ruling, and on an issue that’s likely to reach the Supreme Court eventually. It’s possible that the defendant in this case might try to make the (somewhat odd) move of trying to move the case to the DC Superior Court, where the anti-SLAPP law would apply, but even if they do not, it seems quite likely that the case would be dismissed for failure to state a claim. Again, for there to be a legitimate claim here, the plaintiff would have to show “actual malice” which (as mentioned above) has a specific definition which is not what most people think it is. It is not “said it with anger” or “said it while disliking the person.” It means that it was said by the person knowing that it was false, or with reckless disregard for whether it was true or false. And, again, the plaintiff is out there admitting that this was part of a troll effort to trick people. You can’t really then turn around and claim that someone who was tricked was defaming you.
Unfortunately, because of these polarized partisan times, many of the people talking about this case are supporting the side they support politically, rather than a side based on the actual merits of the case. Frankly, everyone involved in this case comes out looking silly to me. The original tweet was really dumb, but the response has been even worse. And filing a lawsuit like this is a clear and dangerous attack on free speech and the First Amendment. Which brings up an even more ridiculous quote from the plaintiff who is now suing someone over their free speech:
“I care more about free speech, including for Chelsea Manning and Julian Assange, than almost any other issue,”
You care more about free speech than almost any other issue… and yet you sue someone for a tweet? Uh huh. That’s believable.