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Looks like a solid majority of you want a thread on defamation basics!

For the folks who picked Option 3, #Law140 is the hashtag y'all picked for what I'd dubbed Twitter University School of Law way back in 2016

So with that historical note out of the way, the next class of Twitter University School of Law (#Law140) is now in session!

Tonight's topic: defamation basics
As always, the standard #Law140 disclaimers apply to this thread
So let's start at the beginning: what is "defamation"?

It's basically a legal claim insisting someone lied about you to someone else
"Holy sh*t!" you may be saying to yourself, "That sounds super-f*cking broad! Everyone could sue everyone!"
And that brings us to what defamation typically is in practice: bumptious bullsh*t, affectionately referred to by First Amendment lawyers as "libelslander" or "trespass to feelz" or "asschafe in the first degree," etc
Defamation comes in different flavors based on the type of statement:

➡️ If it's spoken, we call it slander. It's slanderous.

➡️ If it's written, we call it libel. It's libelous.

Because the distinctions don't mean much legally, we just call it all defamation. It's defamatory.
For something to be defamatory, there are certain requirements – "elements" in legalese – that have to be proven by the Plaintiff (the "victim" of the defamation)
The 4 core defamation elements are:

1️⃣ There's a statement (obv), either oral or written

2️⃣ The statement is false

3️⃣ The statement was "published" / shared with at least 1+ other person(s)

4️⃣ The Plaintiff's reputation was damaged as a result of the publication
Run-of-the-mill "normal" defamation is sometimes called defamation per quod

There are also certain defamatory statements that are theoretically *so bad,* we call them defamatory "per se"
The main legal effect of a statement that is defamatory per se is that the 4th element – damage to one's reputation – is presumed to exist
So what is a "per se" defamatory statement?

We have 5 categories of per se defamatory statements here in NC, including statements claiming someone:

1️⃣ committed an infamous crime
2️⃣ is unchaste (women only)
3️⃣ has an infectious disease
Plus statements that:

4️⃣ tend to impeach a person in their profession, or
5️⃣ otherwise tend to subject one to ridicule / contempt / disgrace
If you're wondering what any of the numbered entries in those prior tweets mean – what is a "statement"? what makes a statement "false"? what's an "infamous" crime? – those are the types of questions that get decided by trial and appellate courts
The precise meaning of the defamation elements typically are not defined in statute ("statutory law"), but instead by courts interpreting them via their decisions ("common law")
Sometimes those court opinions will have specific definitions – we'll cover a specific instance of that in a bit – but a big chunk of lawyer work is spent reading through prior cases and trying to see if the facts of any given case are similar to the facts of your case
So up to this point we've been talking about regular ol' defamation.

In ancient England they'd cut out your tongue. Now it's more civilized and you just try to sue someone into bankruptcy.
Procedurally the way a regular ol' defamation claim works is the Plaintiff files what's known as a Complaint, identifying the Defendant who defamed them and the specific wording of what was said, and explaining how the defamation elements are met (falsity, publication, damages)
The Defendant – the person who allegedly said the false statement – has a variety of options to defend themselves
The first option is simply showing the Court that the Plaintiff can't prove any of those 4 elements: that there was no statement at all, or that the statement wasn't false, or the statement wasn't published, or the Plaintiff wasn't damaged by it
The First Amendment factors prominently there.

For example, an opinion typically can't be defamatory. Freedom of expression protects opinions.
So, for example, I can't sue the basement-dwelling neckbeards who @ me with assorted iterations of "you're such a douche" any time their fee-fees are hurt

That's a pure opinion and not defamatory
Likewise, an opinion based on disclosed facts can't be defamatory

For example: if I said "Roy Moore is a pedophile" in a tweet that linked to his predilection for teen girls when he was a DA, it's not defamatory because I disclosed the basis for the opinion
There is a narrow subset of opinions – ones based on *undisclosed* facts – that could potentially be defamatory statements

Like "I did an investigation, and based on what I learned, Roy Moore is a pedophile" without sharing the details of the investigation
But that type of opinion-based-on-undisclosed-facts just isn't that common in my experience, so I won't dwell on it
Now up to this point we've been talking about regular ol' defamation lawsuits filed by regular ol' people

Because of the First Amendment, there are additional requirements that have to be met for a defamation claim made by someone famous – what we call a "public figure"
For legal background, we have to go back to the Civil Rights Era
Those of you familiar with American history might recall slavery was a thing from colonial days until the Thirteenth Amendment was ratified in 1865
After slaves were freed, politicians enacted "Jim Crow" laws to enshrine systematic discrimination and preserve whites' position atop a racial caste system

Those laws were particularly onerous in the South
One of the ways to combat Jim Crow laws were via reporting and opinion columns in newspapers

So Southern politicians routinely filed defamation lawsuits against the papers to get them to shut up or force them out of business
(Today we call those types of lawsuits SLAPPs: Strategic Lawsuits Against Public Participation)
So by 1960ish, you had over $300,000,000.00+ in judgments won by racist politicians against newspapers accurately reporting on the Jim Crow South

That's $2.5B in today's dollars
In the New York Times edition for March 29th, 1960, a full-page advertisement was taken out soliciting donations for Dr. Martin Luther King Jr.'s legal defense to a sham Alabama indictment for perjury

Here's the ad:
The ad's description of what took place in Alabama was marginally inaccurate in spots

For example, the ad claimed police had arrested Dr. King 7 times, when they had "only" arrested him 4 times

But those were the type of inaccuracies defamation cases were based on
So the Commissioner of Public Safety for Montgomery Alabama – a guy named L. B. Sullivan – filed a defamation lawsuit against the NY Times claiming the inaccuracies in the ad defamed Montgomery police
(One of the developments in defamation law that I won't get into here is that there's no such thing as "group" defamation. While "Roy Moore is a pedophile" might be defamatory in certain cases, "Alabama Republicans are pedophiles" can't be b/c a group isn't defamable.)
Long story short, at the trial court level Sullivan won a $500,000.00 judgment against the NY Times for publishing the ad ($4.2M in today's dollars)
The NYT appealed, and in 1962 the Alabama Supreme Court affirmed the judgment, saying "The First Amendment of the U.S. Constitution does not protect libelous publications."

So the NYT appealed to the Supreme Court of the United States
The resulting Supreme Court decision – New York Times Co v. Sullivan, 376 US 254 (1964) – can be summed up as an extended "LOL b*tch you tried it"

SCOTUS unanimously ruled for NYT and vacated the $500K judgment

The opinion by Justice Brennan included what is now known as the "actual malice" standard for a defamation claim filed by a public figure
Under the actual malice standard, not only does a Plaintiff have to prove the 4 core elements (statement + falsity + publication + damages), they *also* have to prove the Defendant knew the statement was false or made it with reckless disregard for truth

Even though NYT v Sullivan only dealt with public officials and newspapers, the "actual malice" standard has been expanded to include public figures generally
That includes your normal public figures (intentionally famous people like movie stars or government officials) as well as what are know as "limited purpose public figures" (folks who temporarily become famous by involving themselves in a particular issue)
Regardless of the type of public figure someone is, they have to meet a 5th element of proving actual malice by the Defendant
It's also almost always harder for a public figure to prove damage to their reputation – that 4th core element – because simply by virtue of being widely known it's unlikely any particular defamer can affect how the public figure is perceived
So let's take allllllllll of this legal background together, and apply it to a particular set of facts that had my TL on fire when I logged in earlier tonight
If you've seen the #ISupportClarissa hashtag, you've likely seen reference to a now-deleted tweet that was two sentences long:

"Are folks going to hold Shaun King accountable to money he 'raised' for Cyntoia? Or is that going to disappear as well..."
The first sentence of that tweet doesn't have any statement of fact in it. The closest it gets are the quotes around "raised" (commonly called "sneerquotes"), which would be treated as an opinion and not defamatory
The second sentence could maybe be considered a statement of fact that might be defamatory – implying previously raised money had "disappeared" – but then a court would next have to look at the context surrounding the statement
(Courts always have to consider potentially defamatory comments in the context in which they're made.)
Here, that context is a claim of financial impropriety, involving a person who's been publicly challenged for similar concerns before

For example, in this piece by @goldietaylor:

So based on the context, a court would almost certainly conclude the second sentence in the tweet was *also* protected opinion, and therefore not defamatory
Now go back to the elements Shaun would have to prove if he decided to sue Clarissa:

❌ Statement of fact
❓ False
❓ Published to 1+ people
❓ Reputational harm
❓ Made with actual malice

Before a court would even get to the other elements, he loses on Part 1
Now when something has several elements that each have to be met, courts routinely hopscotch around and find one that's missing to address it first, then dismiss the case without addressing the rest
But let's assume for the sake of argument a hypothetical court keeps going through the list

Let's even give Shaun the benefit of the doubt and assume the court decides Clarissa's opinions are false (opinions can't be false, but bear with me here)
So the hypothetical court decides

❌ Statement of fact
✅ False
✅ Published to 1+ people
❓ Reputational harm
❓ Made with actual malice

and has to decide if there has been damage as a result of the false tweet
Those alleged damages have to be particularized – was there a job lost because of the tweet? was someone blocked from joining a country club? etc – and can't just be "this hurt my feelings" or "in my opinion my reputation was harmed"
And one of the things a court will look at is the relative audience of the Plaintiff vs the Defendant

Here, the hypothetical Plaintiff has 1.1M+ followers. The Defendant has only 13K.
Was the tweet seen by a significant number of the 1.1M+? No

There may still be some particularized harm though – if, e.g., one particular person saw it who then retracted a job offer or some such – so the court would keep analyzing
Another key thing the court would consider is now popularly known as the "Streisand Effect"

If the allegedly defamatory statement was harmful, did the Plaintiff do something to bring even more attention to the harmful statement than the Defendant did in making it?
And tweeting out something like this to your 1.1M+ followers – nearly all of whom had never seen the original tweet with only 355 RTs and 834 likes – is textbook Streisand Effect

So the hypothetical court would almost certainly find there was no reputational harm
That means the hypothetical court would be at:

❌ Statement of fact
✅ False
✅ Published to 1+ people
❌ Reputational harm
❓ Made with actual malice

when it considers if the Plaintiff has proven the statement was made knowing it was false or with reckless disregard for truth
And there, it's practically impossible for Shaun to meet that actual malice standard used for public figures

It's almost certain Clarissa made the statement precisely because she believed it was true, so the first prong ("made knowing it was false") wouldn't work
Was it made with "reckless disregard for the truth"? That's another term defined by the court cases: when one is "highly aware of its probable falsity or entertains serious doubts about its truth, or when there are obvious reasons to doubt the veracity and accuracy of a source"
That quote is pieced together from different parts of Garrison v. Louisiana, 379 US 64 (1964), which applied the NY Times v Sullivan actual malice standard to a criminal conviction
Again, that's damn near impossible to prove in this scenario

So in *the very best case* for Shaun, a court would end up with:

❌ Statement of fact
✅ False
✅ Published to 1+ people
❌ Reputational harm
❌ Made with actual malice

which translates to "case dismissed"
And it could potentially be much worse for him

Remember when I mentioned mid-thread that suing people for First Amendment-protected expression is considered a SLAPP?

Well several states have adopted what are known as anti-SLAPP statutes

The particular mechanics vary by jurisdiction, but basically it's a way for a Defendant to have a court dismiss a case early before spending $$$$$ on discovery

And the loser pays the winner's attorney fees
Ken White (@Popehat) has written on anti-SLAPP statutes quite a bit at his blog. Here are some sample readings with more details:

➡️ popehat.com/2015/04/28/law…
➡️ popehat.com/2015/05/18/law…
➡️ popehat.com/2015/05/28/law…
TL;DR on this entire thread:

1️⃣ There's absolutely no legal basis at all for a lawsuit based on that tweet

2️⃣ If one were filed, 100% chance it would get thrown out

3️⃣ The only purpose for it would be to bankrupt someone by forcing them to pay an attorney until it's tossed
There are a *lot* of First Amendment lawyers on here – @Popehat, @NonWhiteHat, @adamsteinbaugh, @marcorandazza, many more – who might have differing opinions, but I'm 99.99% sure they'll all agree the legal threats are bumptious
This concludes tonight's Twitter University School of Law (#law140) class on defamation basics

Thanks for reading 👊
We certainly can be, the law just doesn't consider it defamatory because it was historically seen as a virtue for a guy to f*ck a lot

UK defamation law is a dumpster fire too. The freedom of speech legal regime here is still strong (for now)

Your words, not mine – I don't want to get sued for defamation 😉

Some states have adopted it in statute for state law-based cases, but federally it's common law

Yeah I didn't want to get into advanced torts quite yet 😂

The court will parse the words and look at the context to decide whether it's truly an opinion or actually a statement of fact dressed up as an opinion

No such thing as group defamation, mentioned that mid-thread. Try to keep up.

I haven't yet, but I did defend a group of nudists who were sued for defamation. That was an experience

For a real world example of a defamation lawsuit and how it turned out, here's an old thread from 2016

Forewarning: it involves nudists and sexual assault

I just realized it's 3am, I've gotta go to bed 😂

@ me your questions overnight and I'll work on responding while I'm in court tomorrow
Donuts are delicious too, I'll happily accept them 😂

Trying to put my alma mater's slogan into practice 😉 (Truth & Service)

Short answer is yes (Garrison v Louisiana held NYT v Sullivan standard applies to criminal defamation too, which is what §14-47 is), longer answer is there's an open question whether criminal defamation is constitutional at all anymore

There's currently a test case pending in NH federal court, Frese v. MacDonald (aclu.org/legal-document…), that's taking aim at all criminal defamation statutes

That 5th point isn't quite right. "Actual malice" in the defamation context isn't the same as in a criminal one, it just means the person knew (or reasonably should have known) the statement was false when it was made

The terminology choice was rooted in the idea that no one would knowingly share false info unless there was already ill will there (the crim definition of malice), but ill will / spite / retribution is not technically required.

So to answer your question directly, yes Clarissa would have a "better" case than Shaun, but both of their respective cases would be near-certain losers

After you tweeted I tacked it into the thread a few tweets up from here :)

It's the hashtag / trade name I use for when I do a thread explaining a particular legal topic

The very same. IIRC she was outraged someone had taken an aerial picture of her home, sued to have it taken down, and as a result thousands upon thousands more people learned where she lived than would have otherwise

I think I got all the questions, but if I missed any feel free to re-@ me

Off to grab lunch and then head to court 🙃
Got a DM about "matters of public concern" and how they fit in to the analysis

I'll address the details after court (calendar call in a few minutes), but basically it's yet another avenue that would likely torpedo a defamation case here
Alright, let's talk "matters of public concern"
Before we get into the details, a few words on the procedure for a hypothetical defamation case
The party bringing a lawsuit always has the burden of proof to prove the elements of his / her / its case

The height of that burden – how much proof is needed – depends on the type of case being brought
Think of burdens of proof like yard markers on a football field

"Reasonable suspicion" – used for traffic stops – is a fuzzy area around the 25-30 yard lines

"Probable cause" – used for arrest and search warrants – is a fuzzy area around the 40-50 yard lines
"Preponderance of the evidence" – used for most civil cases, including defamation – is just over midfield

"Clear and convincing evidence" – used for many regulatory / licensure-related cases and a mishmash of other things – is basically into the Red Zone
And "beyond a reasonable doubt" – used to convict someone of a criminal offense – means the tip of the football needs to be touching the goal line
So under the preponderance standard used for defamation cases, the Plaintiff has to cross the 50yd line on their own, to show the alleged tort "more likely than not" took place
If the Plaintiff can't do that, they lose.

Even if the Defendant proves nothing at all whatsoever.
So a person claiming they've been defamed has to provide a preponderance of evidence showing:

➡️ a statement of fact
➡️ that's false
➡️ shared with someone else
➡️ that damaged the Plaintiff

more likely than not happened
The "actual malice" standard applies to Plaintiffs who are public figures, and creates that 5th element they also have to prove from the jump
There are certain instances, though, where a Defendant *wants* to provide evidence of their own

We call these "affirmative defenses"
For example, you may have heard the phrase "truth is a defense to defamation."

The Plaintiff has to prove a defamatory statement was false; the burden is on him / her / it.

But a Defendant could also voluntarily choose to present evidence proving the statement was true.
A real-life example of how a truth defense plays out is in this thread where I defended a group of nudists against a defamation suit brought by a serial molester

Another affirmative defense is that the statement involves a "matter of public concern"

If "public figure" analysis involves famous people, "public concern" analysis involves famous topics
The idea is that public debate on important topics is a good thing and helps promote a well-informed citizenry, so folks shouldn't be able to run to the courts with a defamation suit if someone says something mean during a debate
In terms of how the doctrine developed, you had the "actual malice" standard created in NYT v Sullivan

Then Garrison v Louisiana expanded the doctrine to criminal convictions for defamation
Then Rosenbloom v. Metromedia Inc, 403 US 29 (1971), Basically expanded it to matters of public concern
Rosenbloom involved a guy who was arrested for selling nude magazines

The media, reporting on his arrest, didn't use the word "allegedly" when recounting the accusation

Rosenbloom was acquitted and sued claiming he had been defamed

Rosenbloom argued that he wasn't a public figure, so the actual malice standard didn't apply to him

The Supreme Court looked at him and said "so what?"
The Supreme Court held that talking about something of interest to the public is protected, even if the person involved isn't a public figure at all

So, applied to the Clarissa tweet mentioned up-thread, the subject matter is about a prominent activist, a prominent court case, and whether funds raised were "disappeared"
It's a classic "matter of public concern"

Meaning *even if* Shaun were somehow -not- considered a public figure (0% chance of that but play along), he'd still have to prove the tweet was made with actual malice – knowledge of its falsity – b/c it's on a matter of public concern
That gets contrasted with what are "private" concerns

For example, let's say I tweet "@Popehat eats microwaved puppies on his pizza" and Ken decides that's a libelous accusation because he loves puppies
No one really gives a sh*t about Ken's pizza preferences, so that probably wouldn't be a matter for public concern

(He'd still lose because he's a public figure, I hadn't damaged his reputation, etc. It just wouldn't be because of the "public concern" aspect.)
That's the type of thing a court would do a "fact-intensive inquiry" on. A large Twitter following, being interviewed by media outlets, having multiple podcasts with large audiences, etc would all be factors considered.

He's definitely a public figure :)

If any of these cases end up in NC, I'm happy to provide pro bono help

Courts consider the context in which statements are made, so this would be considered protected opinion: the tweeter is re-characterizing her comments with his own take on what was said (plus all Congresscritters are public figures by virtue of office)

Political commentary gets particularly broad First Amendment protection in the defamation context, because we want to make sure folks are free to discuss (and criticize) policymakers as they see fit
Always depends on the jury and the quality of the lawyers. I ask questions about burdens of proof during jury selection, and always have a line or two about what a particular burden means in my closings

My cornhole skills are limited and soccer is boring af, so I respectfully decline 😂

I can believe this. Once had a case where the judge had us end court early and do closings the next morning b/c he didn't want a rushed verdict by 5p

A thread from one of the folks threatened, @MrErnestOwens, with the email exchanges between him and 2 of the attorneys

Ernest's tweet isn't actionable for the same reason as Clarissa's: even if it's taken as a statement of fact, Shaun can't prove actual malice (which he has to prove b/c he's a public figure), it's on a matter of public concern, and there are no discernible damages
It's weird fam. Idk what prompted it, esp after some of the stuff posted by Rs about him, but yikes

It's not really a "line" so much as a flexible gray area, but I'd almost certainly qualify too: former candidate for office, several dozen media appearances, podcast, Twitter audience, etc

I argued in a case I was defending that literally anyone verified by FB / IG / Twitter should be presumed a public figure, b/c they had enough of a public footprint to provide a basis for the verification

We won on different grounds, but I plan to raise it again

Back when the donuts case went viral in Feb 2016, I was terrified – and that was with folks who were *supportive*

I can't imagine what these folks are dealing with

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