Kentucky Court Tells Anonymous Covington Students They Can’t Sue For Defamation If They’re Anonymous

Defamation

from the that's-not-how-any-of-this-works dept

You all remember the media shit-storm around kids from Covington Catholic High School and a run-in with folks in Washington DC that became a sort of Rorshach test demonstrating your political viewpoints based on how you viewed the encounter. The main character from Covington Catholic was Nick Sandmann, who sued a bunch of media orgs over their characterization of the events. While a few publications settled — for what it seems was clearly a tiny “nuisance fee” — Sandmann lost all of his other cases against the media, because there was no defamation at all.

In the midst of all this, we had noted that lawyer Robert Barnes, a lawyer who has only appeared in our pages for his habit of filing laughably bad lawsuits that seem more about publicity than anything else, had announced publicly that he would sue the media pro bono on behalf of Covington Catholic students. And then something kinda weird happened. He did file a defamation lawsuit against various media personalities, but all of the plaintiffs were listed as “John Does.” Among those included in the lawsuit was Reza Aslan, for his comment that Nick Sandmann had “a punchable face.”

This resulted in the somewhat crazy situation in which lots of people on Twitter assumed that when Aslan and others were sued over this, that the plaintiff was Sandmann himself. Sandmann was… not happy about it:

And, I mean, as Sandmann correctly points out, even if Barnes claimed he was suing on behalf of other Covington Catholic kids, the only kid Aslan actually spoke about was Sandmann (and saying someone has a punchable face, while immature, is not defamation).

But, also, can you sue for defamation while remaining anonymous? After all, isn’t the point of a defamation lawsuit that the commentary is harmful to your reputation? If you’re anonymous, how do you show that there was any actual harm? Or even that the commentary was about you?

Kentucky courts dismissed the lawsuit, and Barnes (being Barnes) appealed to the Kentucky Appeals Court, which has easily dismissed the nonsense lawsuit yet again. Almost all the defendants had the case dismissed for lack of personal jurisdiction, seeing as none of them were in Kentucky. However, one defendant, Adam Edelen, a Kentucky politician, couldn’t argue lack of personal jurisdiction, because he’s actually in Kentucky.

Of course, it still doesn’t matter and the case against him got tossed as well, because you can’t really sue for defamation and remain anonymous. That’s not how any of this works.

We will only review the claims against Edelen as he is the only defendant that was not dismissed for lack of personal jurisdiction. First, however, we must address the elephant in the room: is it even possible to make an anonymous claim for defamation? It defies logic to think anyone could present proof of defamation anonymously. The notion is so preposterous that Does have not pointed to any case law that allows them to proceed in this manner, nor have we found any.

The court at least tries to reason out if it could even be possible to sue for defamation as a John Doe and concludes that, no, that’s not possible. Since defamation needs to be about the plaintiff, the anonymity creates a real problem:

The first requirement for a defamation claim is that the challenged statements be “about” or “concerning” the plaintiff(s). Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004), overruled on other grounds by Toler, 458 S.W.3d 276. “[T]he plaintiff need not be specifically identified in the defamatory matter itself so long as it was so reasonably understood by plaintiff[’]s ‘friends and acquaintances . . . familiar with the incident.’” Stringer, 151 S.W.3d at 794 (quoting E. W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700, 702 (Ky. App. 1978)).

Even so, “where defamatory statements are made against an aggregate body of persons, an individual member not specially imputed or designated cannot maintain an action.” See, e.g., Louisville Times v. Stivers, 252 Ky. 843, 847, 68 S.W.2d 411, 412 (1934) (citation omitted). For an individual plaintiff to bring a defamation action based on such comments, “the statement must be applicable to every member of the class, and if the words used contain no reflection upon any particular individual, no averment can make them defamatory.” Kentucky Fried Chicken of Bowling Green, Inc. v. Sanders, 563 S.W.2d 8, 9 (Ky. 1978). In either event, it is impossible for Does to satisfy their burden of proof on this element without revealing their identities.

Of course, even if they chose to name themselves, there’s still no actual defamation.

The tweet Edelen made that got him sued read:

“This is outrageous and abhorrent behavior. I hope part of any punishment is to ensure they read a history book on how America’s indigenous people have been treated. The parents and school that produced these boys need to do some serious soul-searching.”

It also linked to a story quoting Nathan Phillips (the guy with whom Sandmann ended up in a staring contest) talking about his side of the story.

The court notes that there’s nothing in that tweet that appears defamatory.

Kentucky has adopted the view of Restatement (Second) of Torts § 566, which states: “A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” See Lassiter v. Lassiter, 456 F. Supp. 2d 876, 881 (E.D. Ky. 2006), aff’d, 280 F. App’x 503 (6th Cir. 2008). “Pure opinion . . . occurs where the commentator states the facts on which the opinion is based[.]” Id. Herein, Edelen disclosed the facts on which his opinion was based by including a link to the article in his tweet. Thus, the trial court did not err in finding that Edelen’s tweet consisted of pure opinion and was not defamatory as a matter of law.

The court also notes in a footnote that the complaint falsely stated that the tweet and the article Edelen linked to made false statements that it did not, in fact, make.

Contrary to the allegations in Does’ amended complaint, neither Edelen’s tweet nor the article it linked contained “false statements” that “the kids interrupted an indigenous march, stopped and blocked a Native American elder and Vietnam War veteran from continuous participation in that event, surrounded him in a threatening manner, and taunted him, as a [N]ative American elder, with chants of ‘build the wall’ to mock an elderly [N]ative American in the middle of an indigenous march.”

And thus, one hopes this nonsense saga is over. It’s not even clear who Barnes’ clients are, and Sandmann has already made it quite clear that he is not a plaintiff here. The court has made it clear that you can’t really sue for defamation anonymously, most of the defendants are not subject to the court’s jurisdiction, and the only one who was… did not say anything defamatory.

So, once again, Robert Barnes is in these pages for filing a performative, nonsense lawsuit that is so laughably weak that it gets thrown out quickly.

Filed Under: anonymity, covington catholic high school, defamation, robert barnes