from the but-no-anti-slapp-win dept
Almost exactly a year ago, we wrote about a ridiculous defamation lawsuit filed by a plaintiff who has a history of fairly trollish, attention seeking behavior. I chose not to name the person in the post as I argued that the lawsuit itself was something of a publicity stunt, and I’ll continue to do that here, even though it will become clear in the quoted parts of the ruling below. I have no interest in participating in the publicity stunt part of the lawsuit — but do feel compelled to write about it because of the First Amendment issues that are a key component in the case. Amusingly, the plaintiff had a history of loudly proclaiming her support for free speech and the First Amendment, even going so far as to once state: “I care more about free speech… than almost any other issue.”
And yet, she sued a reporter over a tweet. Here’s the way I described it last year:
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.
As we noted last year, among the many, many issues that doomed the plaintiff’s case was the fact that she admitted in a tweet that the whole thing was an attempt to troll journalists:
For a defamation case against a public figure to have any chance, a plaintiff needs to show first that the statement was a false statement of fact, but also that it was done with “actual malice.” Actual malice has a specific legal meaning that is not just “the person wanted to do something mean.” It specifically means that the person making the statement did so knowing it was false or, alternatively, with reckless disregard for whether it was false. Having the plaintiff flat out admit that it was all part of an attempt to trick people kind of undermines the entirety of the “actual malice” part of the lawsuit.
And the court noticed. In a ruling yesterday, the DC district court tossed out the case. And the key reason? A failure to show “actual malice.” Oh, it also recognizes she’s a troll. In the very first sentence of the opinion.
Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of herself and a fellow journalist in the White House press room making a gesture widely recognized as the ?okay? hand symbol but also speculated at the time to be a ?white power? symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, ?just two people doing a white power hand gesture in the White House.? Ms. Fairbanks sued Ms. Roller for defamation. The First Amendment requires that Ms. Fairbanks? claim be considered ?against the background of a profound national commitment? to the freedom of speech and especially of political speech, which is ?essential to the security of the Republic.? See New York Times v. Sullivan… This ?fundamental principle of our constitutional system? obligates Ms. Fairbanks, as a public figure, to support her defamation claim by alleging facts that support a finding of actual malice on the part of Ms. Roller…. Because Ms. Fairbanks has failed to allege such facts, Ms. Roller?s Motion to Dismiss under the Federal Rules of Civil Procedure will be granted.
Oh yeah, note how the court, from the opening, is talking about the First Amendment. I should remind you what the plaintiff said about the lawsuit at one point:
Anyway, back to the case. As we expected, the court noted the Plaintiff’s own admission to trolling. It mentions the tweet we showed about “trolling” above and in the discussion part notes that’s part of the reason there’s no actual malice:
Especially given the public debate about the ?okay? hand gesture at the time of Ms. Roller?s tweet, Ms. Fairbanks? allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks? tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller?whether because the gesture was actually offensive or because they would think that it was offensive?not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.
Unfortunately, we were also correct in the second part of our initial post — that because the case was filed in federal court in Washington DC, it would mean that Washington DC’s (pretty strong) anti-SLAPP law would be inapplicable. A horrible ruling from a few years back, which goes against rulings in most other federal courts, found that DC’s anti-SLAPP law couldn’t be used in federal court. The defendant in this case sought to use it anyway, but the court rejected it:
The District of Columbia?s anti-SLAPP statute does not apply in federal court, so Ms. Roller?s Motion to Dismiss and request for attorney?s fees under the anti-SLAPP statute will be denied.
The Defendant had tried to argue that the infamous Michael Mann ruling had overturned that earlier ruling concerning DC SLAPPs in federal courts, but the court disagreed.
Once again, this is another example of why we so badly need a federal anti-SLAPP law.
Oh, and I should note that the plaintiff’s lawyer in this case just happens to be the same guy, Robert Barnes, who we wrote about yesterday for his failed arguments that Twitter somehow violated Chuck Johnson’s rights in kicking Johnson off its platforms. So while he seems to making a name for himself, it mostly appears to be in filing failed lawsuits that are dumped on First Amendment grounds on behalf of infamous Trump supporting internet trolls. I’m not sure that’s a reputation worth having.