That Lawsuit About A Tweet... Is Both A Publicity Stunt And An Attack On Free Speech

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.


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  • identicon
    Thad, 5 Jun 2017 @ 11:27am

    That tweet alone basically should help kill the lawsuit, because it's a direct admission that it wasn't actual malice -- which 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."

    I'd recommend rewriting that sentence, as it's not clear whether you're defining "actual malice" or "not actual malice" (due to the "wasn't" modifier).

    Anybody who already knows what actual malice is will understand that sentence, but then, you don't need to define the term for them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2017 @ 11:29am

    Maybe she is mad because she didn't do the OK sign properly. Look at that index finger. Or is that just me?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2017 @ 11:34am

    Seems to me that all that needs doing is to argue that the idea of the OK sign as a "white power" symbol is satire and commentary on how easily the media can fall for (and spread) bad information. As an additional bonus, it looks like this sort of case has already been addressed.

    it is the nature of satire that not everyone “gets it” immediately

    Farah v. Esquire, D.C. Circuit Court of Appeals https://www.cadc.uscourts.gov/internet/opinions.nsf/0/B2D8943FCD3EEE2F85257C2F00544835/$file /12-7055-1467977.pdf

    reply to this | link to this | view in chronology ]

    • identicon
      Unanimous Cow Herd, 5 Jun 2017 @ 12:13pm

      Re:

      Given the chaotic nature of the complaint, I could be wrong on this so I'll just ask. If a media outlet reports on something which is very quickly found to be incorrect, is it not incumbent upon them to issue a correction or retraction? If they fail to do so, are the liable?

      True: it is the nature of satire that not everyone “gets it” immediately (this was debunked and outed as a 4chan trap VERY quickly.)

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 5 Jun 2017 @ 12:32pm

        Re: Re:

        Many reporters won't say "this is so", but instead name and quote a person saying "this is so." That way even if the claim is untrue, the reporting is still accurate.

        There seems to be two schools of thought even for those who prize accuracy: For some it's about printing the truth. For others, "It isn't the media's responsibility to print the truth. It's the media's responsibility to quote liars accurately."

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Jun 2017 @ 1:08pm

        Re: Re:

        I don't believe there is any requirement that they issue a retraction, but many will anyway, and sometimes they do it for the sole purpose of heading off any lawsuits. Not that it makes them impossible to sue, it just makes it less likely that some one will.

        reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 5 Jun 2017 @ 11:37am

    "Free speech only applies to me, not you"

    reply to this | link to this | view in chronology ]

  • icon
    freedomfan (profile), 5 Jun 2017 @ 12:12pm

    BS Lawsuit Over BS Tweet

    Seems like there are a couple layers of "there's no there there" in this case. What the target of the lawsuit said was nonsense. Nevertheless, the plaintiff likely knows there is negligible basis for her suit.

    Having never heard of the unnamed plaintiff in this article, I looked her up briefly. In terms of media and freedom of speech issues, it seems odd to me that a strong Trump supporter is also a critic of police authority, particularly with regard to photographing the police. If I hadn't heard about her in this lawsuit context, I might have thought that she was cast in a vaguely similar mold as Radley Balko or Carlos Miller. Live and learn.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 5 Jun 2017 @ 3:38pm

    Voldemort?

    Ah yes, "She Who Shall Not Be Named".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2017 @ 3:45pm

    >...it seems odd to me that a strong Trump supporter is also a critic of police authority,

    Yes, reality has this nasty habit of clashing with preconceptions.

    I think the difference between a bigot and a, like, person is that the person notices the clash and the bigot doesn't.

    reply to this | link to this | view in chronology ]

  • identicon
    Lawrence D’Oliveiro, 5 Jun 2017 @ 6:54pm

    She’s Doing A Trump

    Trump does this all the time: saying things directly contradicting pronouncements of his own staff, and then denying he said what he said.

    Seems the infection is catching among his supporters...

    reply to this | link to this | view in chronology ]

    • icon
      discordian_eris (profile), 6 Jun 2017 @ 12:08am

      Re: She’s Doing A Trump

      And Trump learned it at his daddies knees. Welcome to the hell of congenital defectives not just surviving, but thriving, due to wealth.

      reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 6 Jun 2017 @ 4:57am

    “I care more about MY free speech . . . than almost any other issue,”

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2017 @ 6:22am

    Aaaaaaand.... i still have no idea who Cassandra Fairbanks is and why should i care about this bad joke of a lawsuit.
    Slow day, huh?

    reply to this | link to this | view in chronology ]


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