An appallingly large percentage of journalism about the legal system sucks.
There are exceptions — there are legal journalists I respect, who take pains to get it right — but for the most part the media gets coverage of both criminal and civil cases badly wrong. (I am aware of Gell-Mann Amnesia and therefore please do not infer that I believe other coverage is necessarily more reliable.)
Case in point: coverage of a defamation suit against Courtney Love. Take ABC's coverage. ABC starts with this:
For the first time, a case of alleged libel on Twitter is going to trial
Really? Twitter was launched in 2006. ABC repeats this claim — that no defamation case about a statement on Twitter has ever gone to trial — but I'm skeptical. How did they research that? How did they determine that, across the United States, no case about Twitter defamation has ever gone to trial? Do they assume, incorrectly, that any such trial would result in a published decision that would make it easy to find a record of the trial? Are they just repeating what other media outlets say in conclusory fashion? Moreover, why is the assertion significant? Does ABC mean to imply that the trial represents the first time the legal system has had to confront allegations of defamation in Twitter? If so, ABC is wrong. It took me 30 seconds on Westlaw to find a dozen court opinions (both courts of appeal and federal district courts) analyzing defamation claims premised on Twitter content.
A handful of Twitter libel, or Twibel, cases have been filed in the past, but Love's case is the only one that has made it to trial in the U.S.
Again! First, "Twibel" is not a legal thing; ABC, stop trying to make it a thing. Second, I'm not sure what ABC thinks a "handful" is. It took me 30 seconds to find more than a dozen cases on Westlaw involving allegations of Twitter defamation– that those are only the cases that generated a written opinion that was submitted to Westlaw. The vast majority of state trial-court cases would generate no such written order. What's ABC's basis for saying that only a "handful" of cases have been filed? Is that just null-content filler?
"The Courtney Love Twitter lawsuit is monumental because the judge has now determined that tweeting in California can potentially give rise to liability under the theory of defamation," attorney Brian Claypool said, who is not affiliated with this case.
Either ABC misquoted Brian Claypool, or else Claypool is not affiliated with logic or reality either. Libel is written defamation. Twitter is written. There is nothing about Twitter that logically calls into question whether something written there can be defamatory. ABC's implication to the contrary is nonsense.
"The Courtney Love case will set a precedent that will result in, potentially, the average person being liable as well," Claypool added.
No it won't. First, a trial in the trial court doesn't "set a precedent" in the way Mr. Claypool and ABC are suggesting. Published opinions by trial and appellate courts set legal precedents. Moreover, nothing about the Courtney Love case has the potential to establish a "precedent" regarding whether or not things written on Twitter are written, and therefore potentially defamation, because that was never in question by anyone minimally familiar with the law.
This case could also re-write the rules for the much-loved celebrity Twitter wars that have made headlines over the years: Miley Cyrus vs. Sinead O'Connor and Demi Lovato vs. Perez Hilton just to name two.
No, ABC, you ignorance-promoting cesspool of mediocrity, it couldn't.
Now, there is a grain of relevant law in this abysmally reported story:
Love, 49, took the witness stand Wednesday and said the tweet was merely an opinion, that the Internet is full of hyperbole and exaggeration.
And that's the relevant legal issue in the case, which ABC misses almost entirely, and doesn't explain to its readers.
As I often talk about here, statements of opinion are not defamatory and are protected by the First Amendment so long as they are based on known or disclosed facts. In other words, if I say "Courtney Love sounds like that Edvard Munch painting looks," that's pure opinion and can't be defamation. If I say "Courtney Love's article on Huffington Post about healing amputations with fresh arugula and Pilates makes her sound like a quack and an idiot," that's pure protected opinion. If I said "Courtney Love committed fraud," that might or might not be protected opinion, depending on whether (1) a court determined it was a statement of fact versus a statement of hyperbole and rhetoric, and (2) a court determined it was an opinion based on disclosed facts, or a statement about undisclosed facts. If I linked to an article about Love's conduct and said "Courtney Love committed fraud" that's opinion based on disclosed facts," if I say "I did business with Courtney Love and, without telling you any details, she committed fraud," that may be a statement of fact, because it's not based on established or disclosed facts.
Context is relevant to that determination. California courts, in particular, have suggested that expression online is more likely to be taken as hyperbole or opinion rather than a statement of literal fact subject to defamation analysis. As one court put it in 2012:
In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums. . . . With respect to statements posted in a section of the Craigslist Web site entitled “Rants and Raves,” the court in Summit Bank found that a reader “should be predisposed to view them with a certain amount of skepticism, and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts. ‘[A]ny reader familiar with the culture of … most electronic bulletin boards … would know that board culture encourages discussion participants to play fast and loose with facts…. Indeed, the very fact that most of the posters remain anonymous, or pseudonymous, is a cue to discount their statements accordingly.’ [Citations.]” (Summit Bank, supra, 206 Cal.App.4th at pp. 696–697, 142 Cal.Rptr.3d 40.) . . . . Like the court in Summit Bank, the court in Krinsky relied in large part on the fact the statements were made on an Internet message board where heated discussions about the plaintiff were taking place. (Id. at pp. 1175, 1177–1178, 72 Cal.Rptr.3d 231.) . . . As we have noted, the statements about Chaker were made in the context of the paternity and child support litigation going on between Chaker and Wendy's daughter and all were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here. The overall thrust of the comments attributed is that Chaker is a dishonest and scary person. This overall appraisal of Chaker is on its face nothing more than a negative, but nonactionable opinion.
Chaker v. Mateo, 209 Cal. App. 4th 1138, 1148-50 (2012)
Put another way, the fact that Courtney Love uttered her written statement on Twitter makes it more likely that a court will view it as hyperbole or opinion, and thus not a statement of fact that is potentially defamatory. That's not new. It's established.
So: the Courtney Love case is not novel or innovative. It applies established legal principles to rather mundane facts. ABC (and other media outlets) could have used it as a springboard to discuss basic free speech principles, but instead uses it breathlessly to promote ignorance.
Edited to add:
I engaged Brian Claypool, the attorney quoted above, on Twitter. The results follow. Form your own opinion based on these disclosed facts.
Ugh. Staaaahhhppp. Stop making people stupider.
Last 5 posts by Ken White
- Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong - August 25th, 2015
- Lawsplainer: How Did the Fifth Circuit Narrow Student Free Speech Rights? - August 24th, 2015
- Ninth Circuit Harshly Scrutinizes Law Enforcement Leak, Threatens Sanctions Against Department of Justice - August 20th, 2015
- If You Disagree With This Post, You're Joining A Bullying Lynch Mob - August 17th, 2015
- My Bad Use of Force Decision Shows You Shouldn't Second-Guess My Use of Force Decisions - August 14th, 2015