from the have-you-met-the-First-Amendment? dept
Last year, Candace Owens (former Turning Point USA’s communications director and current “conservative” author/commentator) sued both USA Today and Lead Stories LLC over fact-checking services they provide to Facebook. Owens claimed the labelling of her COVID-related Facebook posts as misinformation caused her to lose ad revenue and hampered her ability to promote her new book.
Lead Stories published an article in April 2020 fact-checking a Facebook post in which Owens claimed that the way U.S. government officials counted COVID-19 deaths overstated the scope and dangers of the pandemic. The Lead Stories article labeled Owens’ post with the terms “Hoax Alert” and “False” and prompted Facebook to place a false information warning label on Owens’ post.
Similarly, USA Today published a fact check later that month concluding that a post in which Owens questioned the relationship between the counting of COVID-19 deaths and flu deaths in early 2020 contained false information. Owens cited Centers for Disease Control and Prevention reports and argued sarcastically in her post that the number of flu deaths had decreased drastically in early 2020.
As a result of the USA Today article, Facebook put a false information warning label on Owens’ second post.
This suit was filed in a Delaware state court, apparently using Facebook’s position as a Delaware corporation — along with the ability of internet communications to travel interstate — to keep it from being moved to federal court and a jurisdiction that would have made more sense.
Not that it matters. Owens has lost this lawsuit. About half of the decision [PDF] is given over to the court explaining why it feels it has jurisdiction over a Delaware corporation that wasn’t actually named as a defendant, as well as the Colorado-based Lead Stories.
Plaintiffs have not provided me with a sufficient basis on which I may exercise general personal jurisdiction over Lead Stories under Delaware law. Plaintiffs have, however, provided me with a sufficient basis on which I may exercise specific personal jurisdiction over Lead Stories under Delaware law. The nature and quality of the commercial activity that Lead Stories conducted over the Internet mitigate in favor of specific personal jurisdiction. Although Lead Stories did not directly transact business or perform work or services in Delaware, or contract to provide “services or things” in Delaware, it contracted with Facebook to supply fact-checking services and stories which were disseminated by Facebook in Delaware in such a manner as to allegedly cause tortious injury in Delaware, which could reasonably have been foreseen by Lead Stories.
With this out of the way, the court moves on to discuss the merits of Owens’s claims. Owens alleged tortious interference and defamation, with an unfair competition claim thrown in for good measure. These allegations are bogus, says the court, starting with the supposed defamation:
Plaintiffs allege in the Amended Complaint that the following three statements made in the Lead Stories Article are defamatory and false and were made with actual malice:
(1)The [false] claims [about the COVID-19 death counting method] originated in a post . . . published on Facebook by Candace Owens on March 29, 2020.
(2)[The First Facebook Post] is being shared to suggest that medical officials are – in Owens’ words – “trying desperately to get the numbers to justify this pandemic response.” This comment is an attempt to downplay the severity of a global infectious disease that has killed more than 42,000 people as of March 31, 2020.
(3)There are several inaccuracies in [the First Facebook Post].
Owens felt being fact-checked was defamatory. The court says, nope, it was just Lead Stories saying things Owens didn’t want to hear and certainly didn’t want transmitted publicly to people reading her content.
I find no facts alleged in the Amended Complaint supporting Plaintiffs’ claim that statement (1) is defamatory or false. As Lead Stories correctly points out in its brief, Plaintiffs altered the statement and omitted relevant context. The statement in the original Lead Stories Article, attached to the Amended Complaint as Exhibit A, merely reads that “[t]he claims originated in a post (archived here) published on Facebook by Candace Owens on March 29, 2020.” In their Amended Complaint, Plaintiffs admit that Owens is the author of the claims published on Owens’ First Facebook Post. This statement does not convey any facts that are untrue or capable of defamatory meaning as it does not injure Owens’ reputation in any sense.
And so it goes for the rest of the defamation claims. The conclusions made and published by the fact-checking services were substantially true, and certainly more true than the claims Owens made on Facebook. And labelling her posts as “False” or “Hoax” wasn’t defamatory either.
Plaintiffs do not demonstrate that the word “False” is an untrue statement under the reasonable conceivability standard. Plaintiffs argue that because the First Facebook Post relied on an opinion from its own expert, Dr. Lee, and Lead Stories relied on an opinion from its own expert, Dr. Ailen, Lead Stories was not able to fact-check the First Facebook Post. This is not accurate. Opinions may carry underlying assertions of facts. Dr. Lee and Dr. Ailen may well have different opinions on whether COVID-19 should be counted as cause of death. However, as discussed above, their underlying factual assertions are not inconsistent. More importantly, in contrast to Plaintiffs’ allegations, Dr. Lee’s article does not support, much less confirm, the accuracy of Owens’ First Facebook Post. Therefore, Plaintiffs fail to demonstrate under the reasonable conceivability standard that Lead Stories made a false statement when it superimposed the word “False” over Owens’ Facebook Post image.
It is not reasonably conceivable that readers who read the Lead Stories’ Article would have understood “Hoax Alert” to mean that Plaintiffs were intentionally spreading a lie. Instead, the readers would have understood “Hoax Alert” as a rhetorical hyperbole implying that the Owens’ Post carries inaccurate information and that the readers should proceed cautiously when reading the post.
The First Amendment also protects the defendants against Owens’s tortious interference claims.
A tortious interference claim cannot survive if the claim is premised solely on statements that are protected by the First Amendment because the exercise of constitutionally protected speech cannot be an “improper” or “wrongful” action. Because Candace Owens is a public figure, the First Amendment protects Defendants’ statements unless Plaintiffs’ Amended Complaint supports reasonably conceivable inferences that (1) Defendants’ articles contain false statements, and (2) Defendants made the statements with actual malice. Defendants’ articles are protected by the First Amendment because Plaintiffs fail to state that both Defendants’ articles contain false statements of fact made with actual malice under the reasonable conceivability standard.
And if that claim fails, so does the common law claim for unfair competition. This claim cannot survive if it only implicates activities protected by the First Amendment.
The case is dismissed. Owens, of course, is free to appeal this or take the same claims to a federal court. But unless she’s got an endless amount of money to blow on losing lawsuits, she’s probably better off being angry — rather than litigious — about it. As the court noted at the outset of its opinion, the advancement of technology, bringing with it new arenas for political debate, raises some novel questions for courts to consider. But at the end of the day, it’s the law that matters.
Today’s world of technological wizardry presents endless opportunities for conflict and battle like Kilkenny cats. Social influencers can sway opinions of millions of people controlling politics and money. Those with substantial control over social media like Facebook struggle to control fact from fiction. The case before me presents one battle in the social media wars. It also presents a real-life struggle affecting reputations, the ability to earn substantial income, and the ability to fact-check.
The political aspects of this case are manifest but must be ignored in favor of application of the law.
Moving these complaints elsewhere won’t change the law and it won’t change how the First Amendment works. Substantially true claims can’t be defamation. And protected expression — like fact-checking and moderation efforts — can’t form the basis for interference claims. Owens should just take the loss and move on.