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Facebook "Likes" Not Protected Speech, Says Virginia Court

May 6, 2012,

Think twice before clicking that Facebook "like" button. You may think you're expressing a constitutionally protected right to express support for a political candidate, for which you cannot be terminated, but Judge Raymond A. Jackson of the Eastern District of Virginia recently ruled that merely "liking" a candidate on Facebook is not sufficiently substantive to warrant First Amendment protection. Expect this ruling to get appealed.

Sherriff B.J. Roberts of the Hampton Sherriff's office was up for re-election when he learned that several of his employees were actively supporting one of his opponents, Jim Adams. The employees alleged that Sherriff Roberts learned of their support of Adams because they "liked" Adams' Facebook page. They also attended a cookout with Adams and told others of their support, but there was no evidence that the Sherriff was aware of these activities. One employee sported a pro-Adams bumper sticker on his car and used choice words to describe the Sherriff's campaign literature in speaking with a colleague at the election booth.

After winning re-election, Sherriff Roberts did not retain the employees. Sherriff Roberts claimed various benign reasons for the firings, including a reduction in force and unsatisfactory work performance. The employees sued Sherriff Roberts alleging that the firings were in retaliation for exercising their right to free speech and that the Sherriff Like Button.jpghad violated their right to free political association. Sherriff Roberts argued that plaintiffs had not alleged protected speech or political association and that he was entitled to qualified and sovereign immunity even if plaintiffs' speech was protected.

To state a claim under the First Amendment for retaliatory discharge, public employees must prove that they were terminated on the basis of "speech" on a matter of public concern. Here, the court concluded that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. The court examined holdings in which constitutional speech protection extended to Facebook posts, and it noted that in those cases, actual statements existed within the record. Conversely, it found, simply clicking the "like" button on a Facebook page is not the kind of substantive statement that warrants constitutional protection. Likewise, the court found that the presence of a bumper sticker supporting Adams did not constitute protected speech without any evidence that the Sherriff was aware of the bumper sticker. The court also found that statements describing the Sherriff's campaign literature, regardless of expletives, did not constitute protected speech because they did not address a matter of public concern but were instead descriptive of personal opinion.

The court also held that even if the plaintiffs' First Amendment arguments had merit, their claims would have failed anyway because the Sheriff was entitled to both qualified and sovereign immunity.

As several commentators have already pointed out, this ruling seems contrary to Supreme Court precedent affording First Amendment protection to such acts as saluting a flag, refusing to salute, and wearing an armband. But I disagree with Professor Eugene Volokh, who writes that "the whole point" of the "like" button is to convey "a message of support for the thing you're liking." When you "like" a Facebook page, you get updates from the page you liked in your news feed. Therefore, "liking" a person's Facebook page may be intended as nothing more than a means of monitoring that person's public statements; it doesn't necessarily mean you like or support those statements. It will be interesting to see how the Fourth Circuit deals with this.

AP Reporter Accused of Libel by Tweet

March 31, 2011,

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would "get it back," and that Spooner went on to compensate for the incorrect call with a "make-up" call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski's Twitter followers in effect that Spooner had engaged in a "form of game fixing." Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn't believe Spooner actually cheated either. According to a league spokesman, "We investigated the content of the tweet when it appeared, found it to be without substance, and informedBball.jpg Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner's lawyer that we did not think suing a journalist over an incorrect tweet would be productive."

The lawsuit raises plenty of interesting questions. First, is Spooner a "public figure" for libel purposes, or, alternatively, did Krawczynski's tweet implicate a matter of "public concern"? Spooner's defamation lawyers clearly don't want him to be treated as a public figure, cognizant of the higher hurdles public-figure plaintiffs must overcome in defamation actions. They make a point of stating in the complaint that Spooner "does not grant media interviews" and that he "eschews contact with the public." If the court treats Spooner as a public figure, the First Amendment would protect Krawczynski's statement unless it was made with knowledge that it was false, or with reckless disregard for its truth or falsity.

Did Spooner suffer any harm from the tweet? The NBA says it disregarded the statement. Moreover, Twitter is an ephemeral medium, and Krawczynski had only about 2,000 followers at the time. Was there any measurable damage to Spooner's reputation? Some say the lawsuit is ill-advised due to the lack of harm. But you know what? If what Spooner alleges is true, this is a solid case. Defamation law does not require him to prove actual damage to his reputation. In circumstances such as this, where an allegedly false statement relates directly to a plaintiff's fitness to perform the duties of his job, harm to reputation is presumed and requires no proof.

It's not only basketball fans who will be watching to see how this one turns out.

"Girls Gone Wild" Defamation Suit Nets $3 Million

March 24, 2011,

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you're inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you'd better conduct some due diligence to ensure you don't destroy someone's reputation. That's a lesson that Joe Francis, the entrepreneur behind the risqué "Girls Gone Wild" videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year's scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for "Girls Gone Wild," but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up Fake IDs.jpgwith a video of Dupre providing consent to appear in "Girls Gone Wild," stating that she was 18, and showing the driver's license of another woman who was of legal age. Dupre then dropped her suit against Francis.

But Francis's legal troubles weren't over. The other woman whose driver's license was held aloft by Dupre was Amber Arpaio, who was in no way involved in "Girls Gone Wild." Arpaio sued Francis, Dupre, and the companies that produce the DVDs for defamation, invasion of privacy, misappropriation of her name, and conspiracy.

The judge wrote that a person is liable for defamation if he makes a statement regarding a private person (as opposed to a public figure) with knowledge that the statement is false, reckless disregard of its truth or falsity, or negligence by failing to determine the truth or falsity of the statement. He noted that Arpaio had alleged that the defendants produced a video in which Dupre represents herself as Arpaio, and thus by implication states that Arpaio is affiliated with the "Girls Gone Wild" franchise, a false statement. Arpaio also alleged that the defendants knew the statement was false or acted in reckless disregard of whether it was true or false. The court therefore found it appropriate to enter a default judgment.

As for arriving at the $3 million figure, the judge referred to Arpaio's "distress from being mistaken as somehow affiliated with Dupre or 'Girls Gone Wild' " as well as her fear that she might lose job opportunities because a prospective employer would search for her name on the Internet and find her ID being brandished by Dupre. He also noted that if she were to have children, they too might suffer emotional damage from being exposed to the material. "Given the unique nature of the Internet," the plaintiff's Internet expert wrote, "this branding is for life."


Understanding Defamation

December 21, 2009,

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia's "insulting words" statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. While it is common to recite that "truth is a defense," that is not technically true, as falsity is a required element of the plaintiff's proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation "per se," meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.

The "publication" requirement means that the remarks were heard by a third party who understood the remarks as referring to the plaintiff in a defamatory sense. This is a fairly easy standard to meet (assuming a defamatory statement), as even accidental publication will suffice.

The Constitution plays two parts in the defamation analysis. First, it gives higher protection to those who speak on matters of public concern or about public figures. When an ordinary person brings a defamation claim that concerns a statement of no megaphone.jpgpublic concern, he only needs to prove the requisite elements by a preponderance of the evidence. When the plaintiff is a public figure (e.g., a celebrity or public officeholder), or when the statement at issue was one of public concern, then the bar is raised. The plaintiff would then need to prove, by "clear and convincing" evidence, that the defendant acted with actual malice. A defendant acted with actual malice if he knew the statement to be false or recklessly failed to verify the claim. "Clear and convincing" evidence is difficult to define but is a higher level of proof than a mere "preponderance." (You can think of it as requiring 75% certainty rather than 51% certainty, though that is not the legal definition).

The second constitutional requirement is that punitive damages may only be awarded upon the same clear and convincing finding of actual malice regardless of who the plaintiff is or if the statement was one of public concern.

The law of libel and slander is far too complicated to discuss in this small space. Consult an attorney if you have been the subject of defamatory speech, especially if your business or profession is being harmed as a result.