Embedding Tweets May Be Copyright Infringement

Most companies understand they should obtain a license before using a photograph in an advertising campaign or on printed materials.  And yet companies may not think twice about embedding images from a tweet or social media post into the company’s own social media feed or website. But embedder beware.  A federal judge in the U.S. District Court for the Southern District of New York recently rejected and limited the application of the so-called “Server Test”.

In jurisdictions that have adopted the Server Test, a website publisher can only be liable for direct infringement when a copyrighted image is hosted on its own server as opposed to being embedded or linked from a third-party server. On February 15, 2018, the court in Goldman v. Breitbart News Network, LLC, et al., U.S. District Court for the Southern District of New York, No. 17-cv-3144, found that embedding a tweet of a copyrighted image can be considered copyright infringement, regardless of where the image is hosted.

The Copyright Act grants copyright owners several exclusive rights to control the distribution and use of copyrighted works, including the right to make copies of the work, the right to distribute those copies to the public, and the right to publicly display the copyrighted work. In the Goldman case, the Court held that embedding a tweet of a copyrighted image can violate the copyright owner’s exclusive display right.


Saved By Punctuation: James Woods Escapes Liability With A Question Mark

A federal judge in the Southern District of Ohio recently dismissed a case against actor James Woods over a tweet he posted during the 2016 presidential campaign.  Woods, the outspoken conservative actor best known for his roles in Casino, Once Upon A Time In America, and Ghosts of Mississippi (for which he received an Oscar nomination), was sued by Plaintiff Portia Boulger, a self-described “active volunteer and pledged convention delegate for Senator Bernie Sanders.”

The lawsuit arose from inaccurate news shared on social media during the 2016 presidential campaign.  On March 11, 2016, Donald Trump held a Republican primary campaign rally in Chicago, Illinois.  That evening, the Chicago Tribune posted a photograph on its Twitter account of a woman at the Trump rally giving a Nazi salute with her right hand raised straight up.  The next day, an anonymous Twitter user posted the photograph, together with a photograph of Boulger and a caption identifying Boulger as an organizer for Bernie Sanders.  The Twitter user alleged (falsely) that “the ‘trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders twitter account.  It’s another media plant.”

Within minutes of this tweet, Woods tweeted the same two photographs along with the comment “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”  Woods’s Twitter account has more than 350,000 followers and the post was re-tweeted more than 5,000 times.  Later that day, various newspapers correctly identified the woman who gave the salute at the Trump rally as Brigitt Peterson of Yorkville, Illinois, not Boulger.  Woods later tweeted a clarification that Boulger was not the woman giving the salute and eventually deleted the tweet on March 22, 2016.

Nonetheless, Boulger alleged that during the period from March 12 – March 22, 2016, while Woods’s tweet remained posted on his account, she received hundreds of obscene and threatening messages, including death threats, and anonymous phone calls at her home from callers who up when she answered the phone.

Boulger filed suit against Woods over the tweet, alleging claims for defamation and false light invasion of privacy.  Woods moved for judgment on the pleadings under Rule 12(c), arguing that his tweet was not a false statement of fact, but rather a question inviting readers to reach their own conclusions.  Ohio District Judge George C. Smith agreed and dismissed both claims, albeit noting that, “were it not for the question mark at the end of the text, this would be an easy case.”

Indeed, the decision turned entirely on Woods’s use of punctuation at the end of his statement – namely whether a question could be construed as a false statement of fact sufficient to assert claims for defamation and invasion of privacy.  The court noted that if the question mark were deleted, “the reader is left with an unambiguous [false] statement of fact.”  However, in light of the question mark, the court noted that the overwhelming majority of courts to consider questions as defamatory statements have found them not to be assertions of fact because a question tends to indicate a defendant’s “lack of definitive knowledge about the issue” and “invites the reader to consider” various possibilities.  In fact, the court was “unable to locate any cases in which a question was determined to be a defamatory statement of fact.”

The court also relied on Ohio’s “innocent construction rule” with regard to defamation, i.e. that if allegedly defamatory words are susceptible of two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted.  The court analyzed Woods’s statement under this rule and found that although a reasonable reader could interpret Woods’s tweet as an assertion of fact that Boulger was the woman giving the Nazi salute, it was also possible that other reasonable readers could interpret the tweet as a mere “inquiry signaling Woods’s lack of certainty and inviting his followers to reach their own conclusions.”

As Boulger was thus unable to show that a false statement of fact had been made about her (a prerequisite to both her defamation and false light invasion of privacy claims), the Court granted Woods’s motion for judgment on the pleadings and terminated the case.

This decision reflects an interesting development refining the law surrounding statements made on social media.  The case is Boulger v. Woods, Case No. 2:17-cv-186 (S.D. Ohio, January 24, 2018).

Insurance Coverage for Social Engineering Scams

Ken Kronstadt authored the Westlaw Journal Insurance Coverage article “Insurance Coverage for Social Engineering Fraud,” discussing recent court decisions regarding insurance coverage for social engineering fraud and what policyholders can do to increase the likelihood of getting coverage for losses resulting from social engineering fraud and other computer related scams. Ken notes that while a few courts have found coverage under crime/fidelity policies, other courts have denied coverage, finding that the loss was not the direct result of the fraudulent scheme.  Companies looking to ensure coverage on social engineering fraud should not assume that their policy – whether a crime/fidelity policy or even a cyberliability policy – provides coverage.

Religion, Kombucha, and the First Amendment: California Court of Appeal Affirms Dismissal of Defamation Claim Against Web Publisher

The California Court of Appeal issued a recent ruling with interesting ramifications for media, entertainment, and First Amendment practitioners.  The decision by the Second District Court of Appeal, though unpublished, has further shown how California courts will determine media companies’ liability for defamation, specifically in situations where web publishers host articles written by independent contractors.

The decision arose from a remarkable set of facts.  Plaintiff Andrew Keegan Heying, better known as Andrew Keegan, an actor famous for his roles in the television series Party of Five and in the movies 10 Things I Hate About You and Independence Day, co-founded his own religion called the Full Circle Church in Venice, California.  In May, 2015, the California Department of Alcoholic Beverage Control conducted a raid at the Full Circle Church and issued a citation for selling alcohol without a license due to the sale of kombucha – a fermented tea with a very low level of alcohol– at an event being held at the church.  Mr. Heying was not present at the time of the raid and was not arrested.

On May 15, 2015, Fox News posted an article online about the incident with the headline “Andrew Keegan busted for selling kombucha at his New Age temple.”  The same day, a four paragraph article was published on Examiner.com with the headline “Andrew Keegan arrested for selling illegal kombucha at a New Age Temple.”  The Examiner article quoted from and linked to the Fox News report.  Examiner.com was a website that hosted articles written by “examiners” – independent contractors from across the country who were eligible to receive payment based upon the number of views their articles received.  The publication in question was written by Mandy Robinson, an “examiner” from Oklahoma City.

Mr. Heying sued Examiner.com and related companies for defamation, invasion of privacy, negligence and misappropriation under California common law and Civil Code § 3344.  Notably, Ms. Robinson, the article’s author, was not named as a defendant in the lawsuit.  The defendants filed a motion to strike the complaint as a strategic lawsuit against public participation under California’s anti-SLAPP statute.  The Los Angeles county trial court granted defendants’ anti-SLAPP motion on the grounds that Mr. Heying, a public figure, could not produce clear and convincing evidence that the Examiner.com article was published with actual malice, as required by the First Amendment.  Mr. Heying appealed.

The Court of Appeal held that the anti-SLAPP statute applied because the Examiner.com post, made on a public website, appeared on a “public forum” for purposes of the statute and because Mr. Heying and the Full Circle Church were in the “public eye” due both to Heying’s celebrity status and the fact that numerous articles had been written about Heying and his church in New York magazine and the Los Angeles times.  Accordingly, the Court held that the Examiner.com article concerned a matter of public interest for purposes of the anti-SLAPP statute.

The Court further held that Mr. Heying could not establish a probability of prevailing on the merits of his claims and affirmed the dismissal of all defendants.  The Court found that Ms. Robinson, the independent contractor who authored the post, did not act with actual malice because she reasonably relied on the Fox News report and understood the word “busted” in that report to mean “arrested.”

Mr. Heying argued that, notwithstanding the author’s intent, the Examiner.com business model allowed an inference of actual malice on behalf of defendants because independent contractors were allowed to publish articles directly on the website without any review or approval by the site’s owners.  The Court of Appeal disagreed.  The Court relied on the precedent set in Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688 (2007) and held that Mr. Heying was unable to produce “specific evidence” that defendants “routinely relied on biased sources, falsely represented they had done more investigation than they had, or, as a business practice, made statements with defamatory implication to achieve a preconceived result” as was required to find actual malice on behalf of a website owner.  Notably, the Court further held that defendants’ failure to review the article before posting it did “not create an inference that defendants entertained serious doubts as to the truth of the publication or a high degree of awareness of probable falsity.”

Although unpublished, this decision reflects an interesting development in the law concerning publisher liability for hosting content provided by independent contractors.  The case is Heying v. Anschutz Entertainment Group, et al., CA2/8, Case No. B276375.

Motion for Reconsideration Filed in Sarah Palin’s Defamation Case Against the New York Times

Sarah Palin’s attorneys are trying to salvage her defamation claim against the New York Times – which was dismissed with prejudice by U.S. District Judge Jed Rakoff of the Southern District of New York only one month ago – by filing a new motion for reconsideraton criticizing the judge’s early-stage evidentiary hearing and subsequent decision to dismiss her complaint with prejudice before permitting an amended complaint.

We previously covered Palin’s defamation suit against The New York Times and Judge Rakoff’s decision to dismiss her complaint with prejudice at the pleading stage, see https://www.dryewit.com/2017/08/palin-v-the-new-york-times-co-newspaper-wins-palin-loses.  Palin originally sued the newspaper over an editorial published in June 2017, in which the Times cited a map from her political action committee illustrating certain congressional districts marked with crosshairs.  Palin asserted that the map wrongfully linked the 2011 shooting in Arizona that injured Congresswoman Gabby Giffords to Palin’s political action committee.  The newspaper published a correction one day later that denied any connection between Palin’s political action committee and the Arizona shooting.

As a public figure claiming defamation, Palin is required to plead that the author acted with actual malice.  Following an evidentiary hearing, Judge Rakoff determined that Palin did not sufficiently allege enough clear and convincing evidence to show that the New York Times’ author published the editorial with the knowledge that the statements were false or with reckless disregard as to their falsity.  The court found that the primary author of the purportedly defamatory statement did not act with actual malice in this instance.

Palin’s legal team is now challenging Judge Rakoff’s decision to dismiss the complaint with prejudice, in contending that the court “incorrectly presumed based on limited legal briefing that she could never adequately allege actual malice.” In her motion for reconsideration filed on September 25, Palin argues that her proposed amendment complaint would cure the purported deficiencies upon which the court based its dismissal with prejudice based on new facts which have come to light, and that the court is bound to accept as true her allegations about the author’s motivations.

We will continue to provide updates on this case following the court’s decision on whether to vacate its prior judgment.

Joy in Who-Ville? Playwright Wins Fair Use Copyright Dispute in Parody of “Grinch”

It’s not quite what Dr. Seuss envisioned: Kind-hearted and cheerful Cindy-Lou Who from the childhood classic “The Grinch That Stole Christmas” becomes a cynical adult who was thrown in prison after murdering her abusive husband, the Grinch.  Such is the premise of “Who’s Holiday!” – a play characterized by its playwright as “a dark comedic work with explicit language geared towards only adult audiences.”

The Southern District of New York recently agreed with the playwright that the play constituted fair use and therefore did not infringe on Dr. Seuss Enterprises L.P.’s copyright in the well-known children’s book or related trademarks.  See Lombardo et al. v. Dr. Seuss Enterprises, L.P., Case No. 1:16-cv—09974 (S.D.N.Y. Sept. 15, 2017).  The ruling allows plaintiffs to proceed with the show’s off-Broadway run, after the performances were delayed in November 2016 following cease and desist threats from Dr. Seuss Enterprises.

U.S. District Judge Alvin K. Hellerstein found that the play serves as a parody of Grinch and thus is a transformative work because it “recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy-Lou Who – a symbol of childhood innocence and naiveté– in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture and murder.”

“Who’s Holiday” – We’re Not in Who-Ville Anymore

The plot of the play in question reads more like a tawdry novel than of a timeless children’s tale for the holiday season.  “Who’s Holiday” takes place 43 years after the end of Grinch and chronicles Cindy-Lou’s traumatic relationship with the Grinch character.  Cindy-Lou – who now drinks hard alcohol and abuses prescription pills – tells the audience that she engaged in sexual intercourse with the Grinch when she turned eighteen, resulting in a pregnancy.  She married the Grinch (“When I told my parents they weren’t pleased in the least / I mean, who wants their baby girl deflowered by a beast”) and moved into his cave at the top of Mount Crumpit.

As the marriage deteriorated after years of unemployment, lack of heat and hunger, Cindy Lou and the Grinch engaged in a physical struggle which resulted in the Grinch falling off a cliff and dying.  Cindy Lou was arrested for his murder, convicted and sent to prison.  The play begins soon after her release from prison, as she speaks to the audience in rhyming phrases while purportedly waiting for guests to arrive for a Christmas party.

In a commentary on the play’s plot, the court noted: “[T]he Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou’s naiveté, Who-Ville’s endlessly-smiling, problem-free citizens and Dr. Seuss’ rhyming innocence, all appear ridiculous.”

Fair Use and Parody

To promote science and the arts, courts have developed the fair-use doctrine, which permits unauthorized copying in some circumstances, with the goal of furthering copyright’s purpose.  According to one of copyright law’s seminal cases – Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994) – the “threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.”  Id.  In Campbell, the Supreme Court determined that the defendant’s rap video parodied the notable “Oh Pretty Woman” song because the rap video was “clearly intended” to invoke, and scorn, the original song.

Seuss Enterprises claimed that “Who’s Holiday” infringed on its intellectual property rights because the play “does not poke fun of, ridicule, comment upon, criticize, or otherwise transform Grinch.”  Instead of a parody entitled to fair use protection, Seuss contended that the play was a sequel – a derivative work subject to copyright laws.  Seuss asserted: “Turning Charlie Brown into a middle-aged drug addict would not be parody, and turning Cindy-Lou Who into a middle-aged widow is not parody, either.”

The playwright plaintiff, on the other hand, argued that the play was an obvious parody in that it contrasted Cindy-Lou Who’s innocence and cheer with R-rated topics such as profanity, teen-age pregnancy, drug and alcohol abuse, domestic violence and murder.  Additionally, the playwright claimed that the play was transformative in that it “contains original dialogue, a newly devised plot, and the structure, tone and themes of the Play are materially different from that of the Grinch.”

The court agreed with plaintiffs, in finding that the play needed to evoke the style and message of Grinch in order for there to be an object of the parody. By poking fun at the “utopic depiction of Who-Ville,” the play “turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”  The play was not, as the Seuss estate asserted, a duplicate of the children’s classic designed “to avoid the drudgery in working up something fresh” but instead functioned as a reimagining that merely played on the book’s premise.

Thus, the court held that the play constituted fair use and did not infringe on Seuss’ copyright in Grinch.  The court also determined that the play wouldn’t impact the market for the original Grinch, because there was no logical claim that the two would serve as competing substitutes, or, as the court wrote, “no possibility that consumers will go see the play in lieu of reading ‘Grinch’ or watching an authorized derivative work,” since they would appeal to such different audiences.

FTC Takes Action Against Social Media Influencers

This morning, the FTC announced that it had reached a settlement in its first-ever complaint against individual social media influencers and that it had sent warning letters to other prominent influencers. In addition, the FTC announced that it had updated previous guidance on influencer campaigns.


The settlement involves Trevor Martin and Thomas Cassell, owners of CSGO Lotto, an online multi-player game. Martin and Cassell are also social media influencers who have gaming channels on YouTube with millions of followers. Starting in 2015, both men posted videos of themselves playing the game and discussing how they had won money. They engaged in similar activities on other platforms, including Twitter and Instagram. None of the videos or posts, however, mentioned any connection to the company. Martin and Cassell also paid other influencers to promote the game on social media. Most of individuals did not disclose their connections to the company and the few who did only did so “below the fold.”

Last year, various media outlets broke the news that Martin and Cassell ran the CSGO Lotto site. Many fans who had assumed that the men’s reviews were unbiased became upset, controversy followed, and the game shut down. Now we know that the FTC got involved, as well. As part of the proposed settlement with the Commission, Martin and Cassell are prohibited from misrepresenting that any influencer is an independent user. Instead, any connection between an influencer and the product being promoted must be disclosed in a “clear and conspicuous manner.”

Warning Letters

In April, we noted that the FTC staff had sent “educational letters” to more than 90 social media influencers, reminding them of their obligation to disclose any connection they have to the companies whose products they promote. Today, the FTC announced that they had sent new “warning letters” to 21 of those influencers.

The new letters cite specific posts that concerned the FTC staff and explained why those posts might not comply with the Endorsement Guides or the FTC Act. For example, some of the letters noted that the staff believe that tagging a brand is an endorsement of the brand. “Accordingly, if you have a material connection with the marketer of a tagged brand, then your posts should disclose that connection.” Other letters stated that simply thanking a brand is not a sufficient disclosure. And others reminded influencers that disclosures must be easy to find, and that consumers shouldn’t be required to click a link in order to find them.

Updated Guidance

The FTC also released an updated document with answers to frequently asked questions. This version includes more than 20 new answers addressing specific questions that marketers and influencers may have about whether and how to disclose material connections in their posts. For example, the document covers topics such as including tags in pictures, disclosures on Instagram, disclosures on Snapchat, how to disclose free travel, and terms that can be used in disclosures.

Stay tuned for more coverage of these developments.

Palin v. The New York Times Co.: Newspaper Wins, Palin Loses

Bottom line: Yesterday, on August 29, 2017, Southern District of New York Judge Jed S. Rakoff dismissed, with prejudice, Sarah Palin’s defamation complaint against the New York Times Company.

The dispute arose from an editorial first published on June 14, 2017, following the mass shooting of Republican lawmakers at a baseball field in which Rep. Steve Scalise and several others were wounded.  In describing the shooting and making a connection to previous gun-related violence in Arizona that wounded former Rep. Gabrielle Giffords, the newspaper’s editorial board wrote that the “link to political incitement was clear.”  The editorial provided background on the 2011 Arizona shooting by stating that “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The Court (federal district court in the Southern District of New York) dismissed – at the pleading stage – Mrs. Palin’s complaint for defamation, with prejudice, arising from the NYT editorial.

The Court noted that, in her complaint, Mrs. Palin attempted to show that the NYT acted as if it had a collective brain, rather than by showing that the individual responsible for the statement acted with actual malice.   “This will not suffice,” the Court explained.  Rather, the “state of mind required for actual malice would have to be brought home to the persons in the [media defendant’s] organization having responsibility for the publication of the [statement].”  And, in any event, the Court found following an evidentiary hearing, the primary author of the allegedly defamatory statement did not act with actual malice, and Mrs. Palin’s factual allegations to the contrary could not salvage her claim.

The Court’s dismissal of the action at the earliest possible opportunity is noteworthy – it is important to dismiss meritless defamation cases at the outset so that those in the news media are assured that they may exercise their First Amendment rights without being unduly burdened by having to pay for expensive, groundless litigation.  Here, the law is clear that public figures like Mrs. Palin, who seek damages for alleged defamatory statements, must meet a very high standard above and beyond simply proving that the statements about them were false.  They also must prove by clear and convincing evidence, with particularized facts, that the publisher made the statements with actual malice (meaning that the publisher made the statements with knowledge that the statements were false or with reckless disregard as to their falsity).

In the US, speech on matters of public concern is at the heart of First Amendment protection.  Snyder v. Phelps, 131 S.Ct. 1207 (2011).  The bedrock principle behind the First Amendment is that we trust the people.  The people – not government officials — are in charge.  We trust their judgment to get to the right result, and so we have to give them information.  The people have to have information to know what is going on in government, and that’s where the press comes in.  The public has a right – a need, actually – to be informed about important events about public figures, and the press has to be afforded the freedom to report on such topics without fear of reprisal in the form of expensive, meritless litigation.

Or as the judge explained in dismissing Mrs. Palin’s suit, there is  “a profound national commitment to the principle that debate on public issues be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  (citing New York Times v. Sullivan, 376 U.S. 254, 270 (1964)).

The very first sentence of this thoughtful (and correct) opinion sums it up: “Nowhere is political journalism so free, so robust, or perhaps so rowdy as in the United States.”  And “if political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure [like Mrs. Palin] must be limited to those cases where the public figure has a plausible factual basis for complaining that [an erroneous, hurtful statement] was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity” (i.e., with “actual malice”).

Finally, the Court explained that the NYT’s editorial board is clearly not a fan of Mrs. Palin.  But it isn’t required to be under the law.

Palin v. The New York Times Co.: Newspaper Mounts Robust Defense to Defamation Lawsuit

The New York Times is defending itself against a defamation lawsuit brought by former Alaska Governor and Republican vice presidential candidate Sarah Palin, as the newspaper asserted in a recent motion to dismiss that the statements alleged as defamatory in Palin’s complaint are not actionable as defamation and that Palin has not plausibly pled actual malice.

The dispute in Palin v. The New York Times Co., Case No. 1:17-cv-04853 (S.D.N.Y.), centers on an editorial published on June 14, 2017, following the mass shooting of Republican lawmakers at a baseball field in which Rep. Steve Scalise and several others were wounded.  In describing the shooting and making a connection to previous gun-related violence in Arizona that wounded former Rep. Gabrielle Giffords, the newspaper’s editorial board wrote that the “link to political incitement was clear.”  The editorial provided background on the 2011 Arizona shooting by stating that “Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.”

The New York Times published a correction and apology the following day, in which the newspaper clarified that the map published by the political action committee placed certain electoral districts under stylized crosshairs but did not place the actual Democratic politicians representing those districts under crosshairs themselves. The newspaper’s correction also stated that “no such link was established” between political rhetoric and the 2011 shootings.

Despite the correction and apology, Palin filed her lawsuit against the newspaper on June 27, 2017, contending that she was unlawfully defamed based on the editorial’s use of her name as a link to the shootings.  The complaint alleged that The Times “falsely stated as a matter of fact to millions of people that Mrs. Palin incited Jared Loughner’s January 8, 2011 shooting rampage.”  Moreover, according to the complaint, The Times had knowledge when it published the editorial that no connection existed between Palin’s political activities and the Arizona shooting, based on a series of articles previously published by the newspaper suggesting that the violent attack was not politically motivated.

In its motion to dismiss, The Times countered the allegations by asserting that (1) the complaint fails to state a viable defamation claim because challenged statements are neither “of and concerning” Palin nor actionable as defamation, and (2) Palin has not adequately pled “actual malice” – a required showing given that Palin clearly is a public figure.  U.S. District Judge Jed S. Rakoff set oral argument for July 31, 2017 and stayed discovery until then.

Failure to State a Viable Defamation Claim

First, The Times contends that, as a defamation plaintiff, Palin must plead and prove that the allegedly defamatory statements were “of and concerning” her.  According to its motion, the complaint wrongfully alleges that the editorial falsely accused Palin personally of inciting the Arizona shooting when, in fact, the editorial only mentions Palin’s name in stating that the crosshairs map at issue had been circulated by a political action organization affiliated with her.  Because the plain language of the editorial mentions “Sarah Palin’s political action committee” and not Palin herself, The Times argues that the editorial refers only to the conduct of an entity and not to the actions of the person in question.

As to the alleged defamation itself, The Times claims that Palin’s fundamental contention – that there is “no link” between the crosshairs map and Loughner’s shooting – is just as speculative as the editorial.  Because Loughner’s true motivations for the shooting remain unknown, The Times contends that whether he was influenced by the crosshairs map or by any other political discourse is not capable of being proven true or false – and therefore the meaning attributed to the editorial is not actionable in defamation.

Failure to Plead Actual Malice

As a public figure, Palin faces a heavy burden for proving defamation.  According to the motion to dismiss, the Second Circuit has specifically held that a public figure must plead “plausible grounds” to infer actual malice by alleging “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of” actual malice.”  See Biro v. Conde Nast, 807 F.3d 541, 546 (2d Cir. 2015).  Because the newspaper has published other articles reporting that there was no connection between the Arizona shooting and crosshairs map, and because it published a correction the following day, The Times argues that Palin’s argument contending that the newspaper deliberately sought to defame her is baseless.

Although Palin’s complaint contends that the newspaper failed to follow its own journalistic policies and such errors serve as proof of actual malice, The Times rebuts that assertion by arguing that even an “extreme departure from professional standards” is insufficient to demonstrate actual malice.  Relating to the correction published the next day and whether it was adequate to correct the challenged statements, The Times claims that because actual malice is measured at the time of publication, any subsequent correction is not probative of the defendant’s state of mind at the time of publication.  Moreover, the newspaper’s decision to publish any correction serves to undermine any claim of actual malice, according to the motion to dismiss.

Disgorgement Damages

Palin’s complaint requested disgorgement of the newspaper’s “ill-gotten gains” in the form of advertising revenue derived from the editorial. The Times contends that this request is improper, claiming that the only remedy for defamation is an action for damages – the “actual harm caused to the reputation of the person defamed.”  The newspaper argues that there is no precedent for seeking disgorgement of advertising revenue as an element of damages in a defamation action and that such an award would be precluded by the First Amendment as it would serve as “gratuitous” recovery.

Defamation Law Series: Texas Court Holds that “Rhetorical Flourishes” In Article Do Not Support Defamation Claim

The Texas Fifth Court of Appeals in Dallas recently dismissed defamation claims against a Dallas magazine, finding that although a headline and article could be interpreted as criticism of a former symphony orchestra volunteer, the statements functioned as non-actionable opinions.

In September 2013, D Magazine published an article titled: “The Talented Mr. Reyes: How a man of meager means and a mysterious past duped Dallas society.” The article chronicled the tale of Jose Reyes, who worked for Bank of America and volunteered at the Dallas Symphony Orchestra (DSO).  Reyes’ volunteer position ended after allegations that he “crashed” society parties without an invitation and overstepped his boundaries in communicating with the press.  Although Reyes denied these allegations, the DSO terminated his volunteer post in July 2013 and issued a press release stating that he was no longer affiliated with the organization.  The press release prompted D Magazine to follow up with an article.  Following the article’s publication, Reyes was fired from his job at Bank of America.

Reyes sued the magazine for defamation and the DSO on claims of conspiracy and tortious interference with this employment relationship.  Both defendants filed motions to dismiss the claims; the trial court partially granted but also partially denied the motions. On appeal, the Fifth Court examined identified fifteen statements from the article that Reyes contended were defamatory.  The statements included:

  • The article’s headline, which referenced Reyes’ “meager” means, “mysterious past and to his “duping” of Dallas society;
  • A statement addressing complaints that he “crashed parties, blustered his way into photos, and misrepresented his role with charities”;
  • Several statements characterizing his behavior with the DSO as exaggerating his importance to the organization; for example, the article stated that “Reyes bought the last-expensive ticket and then stood at the front door greeting guests, as if to ‘appear that he was a huge sponsor’”; and
  • A discussion of the DSO’s 2013 Gala Launch Party, in which the article stated that “No one claimed to have invited him, and one key [ ] sponsor was incensed by his presence.”

To be actionable for defamation, a statement must assert an “objectively verifiable” fact as opposed to a constitutionally-protected opinion.  See Main v. Royall, 348 S.W. 381, 389 (Tex. App. – Dallas 2011).  Subjective opinions are not capable of possessing a defamatory meaning because such descriptions amount to personal judgments that “rest[] solely in the eye of the beholder.”  Avila v. Larrea, 394 S.W. 3d 646, 659 (Tex. App. – Dallas 2012).

In D Magazine v. Reyes, the Fifth Court determined that none of the 15 statements identified by Reyes could support a defamation claim.  While Reyes contended that some of the article’s descriptions (such as “party-crasher”) suggested something objectionable or undesirable about him, the court concluded that the statements merely served as opinions that Reyes did not “fit” within Dallas society and therefore were not actionable.

Judge Michael O’Neill, who wrote the opinion, reasoned: “The language of ‘crashing’ parties and ‘blustering’ into photos certainly includes some rhetorical flourish.  But the significant underlying presence here, and through much of the article, is the Reyes was not welcome.  That is an opinion, not a verifiable fact.”

Additionally, Reyes pleaded that the article taken as a whole was defamatory, even if none of the 15 specific statements met the standard.  The court denied this supplemental claim, concluding that because it previously had addressed the allegations individually and determined that they were not defamatory, “stating them in concert does not change their meaning.”

Pertaining to the claims against DSO, the court ruled that it did not have jurisdiction and declined to hear them.