There was an episode of the 1990s sitcom Murphy Brown in which Murphy, played by Candace Bergen, appeared on kid's TV show to soften her image. The show features Muppets; it's a transparent stand-in for Sesame Street. Murphy, true to type, loses her temper and punches one of the Muppets, eventually ripping its head from its felt shoulders.
It's rarely productive to punch the Muppet.
Somebody should have reminded James Woods. He's just wound up and thrown a haymaker at a Muppet, suing some anonymous troll on Twitter for suggesting that he's a "cocaine addict." Woods filed a complaint in L.A. County Superior Court claiming $10 million in damages for defamation and false light invasion of privacy. He's represented by Lavely & Singer, as people like him tend to be in making errors of judgment like this.
Woods probably has plenty of money, and can afford to waste it on this sort of enterprise. That means that he won't be ruined if the semi-anonymous Twitter user hits him with an anti-SLAPP motion and wins attorney fees — which could easily be in the mid to high six figures.
Why do I think that Twitter troll "@abelisted" (now deleted) can win an anti-SLAPP motion in defense of this suit? Because he's a Twitter troll, and reasonable people would take his tweets as abuse, hyperbole, and satire, not as a statement of fact. Therefore they can't be defamatory.
Only provable statements of fact can be defamatory. Insults, abuse, hyperbole, overheated rhetoric, satire, irony, and the like cannot be. Whether a particular statement is one of fact or opinion is generally a legal question for the judge, not a question for the jury. Moreover, the judge must evaluate whether the statement is one of fact or opinion based on the context in which the statement was made. "The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication." Bently Reserve L.P. v. Papaliolios, 218 Cal. App. 4th 418, 427 (2013). Increasingly, California courts have recognized that online rhetoric is more likely to be interpreted by its audience as cathartic trash-talk, not a factual assertion. This is especially true when it occurs someplace particularly known for overheated rhetoric, like a gripe forum. Furthermore, California courts have recognized that anonymity and semi-anonymity increase the audience perception that statements are rhetorical rather than factual.
Anyone familiar with Twitter knows it to be overrun with trolls, malcontents, comical and satirical characters, and deranged stone-throwers. Every indication is that "@abelisted" falls into this category. In fact, Woods' own complaint does an excellent job of setting up the argument that @abelisted is engaged in hyperbolic insult, not factual assertion:
The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted against Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous" "scum" and "clown-boy."
So, Woods concedes that exaggerated insults by a Twitter troll are the context for the troll eventually saying "cocaine addict James Woods still sniffing and spouting."
Woods compounds this impression by emphasizing and griping about non-factual statements clearly protected by the First Amendment:
Indeed, a search on Google.com for "Abe List James Woods" yields the outrageous statements from the AL Twitter Account as the top two results, including one that calls Woods "a ridiculous scum clown-boy."
Moreover, @abelisted's profile — now deleted, but available through Google cache — explicitly suggests that his tweets are not all to be taken seriously:
Moreover, @abelisted's tweets show him to be a rather banal critic of conservative figures, quick to insult and criticize them. He probably targets James Woods because Woods is an outspoken conservative, something that tends to agitate narrow-minded folks who are used to entertainment figures being outspoken liberals.
In short: the context of @abelist's tweets, especially as emphasized by Woods himself, overwhelmingly suggest that any reasonable reader familiar with that context would take the "cocaine" tweet as part of a pattern of hyperbolic abuse by a trollish partisan, not as a factual assertion meant to be taken at face value. I won't say that Woods' complaint is frivolous or sanctionable, but @abelisted definitely has a very strong anti-SLAPP motion available to him, and Woods could easily wind up paying his attorney fees.
@abelist is a punk, but you get to be a punk in America without being held financially liable for it.
Either James Woods got shitty advice, or James Woods' attorneys failed to convince him to act sensibly. The Streisand Effect has already begun; four to five orders of magnitude more people will hear about @abelisted's stupid tweet than would have without this lawsuit. What's the point?
Don't punch the Muppet, James Woods.
Edited August 28 to add: "John Doe", who runs the @abelisted account, has retained me to represent him in Mr. Woods' suit. I will not be discussing the matter here during the litigation, at least until we have a ruling on an anti-SLAPP motion. As always, my law firm does not control, approve, or endorse anything I write on Popehat; it's a purely personal project.
Last 5 posts by Ken White
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