Twitter, libel, parodies, Wild Things, and "badass lawyer" Todd Levitt

|The Volokh Conspiracy |

In February, I blogged about Levitt v. Felton, an interesting Michigan trial court decision on libel law and parodies. Here's an excerpt:

On June 2, 2014, plaintiff filed a complaint against defendant, alleging false light, intentional infliction of emotional distress, libel, tortious interference with business relations, defamation per se, business defamation, and unfair competition. Plaintiff's claims arise out of defendant's creation of a Twitter account entitled "Todd Levitt 2.0." … Plaintiff characterizes this Twitter account as an impersonation of him that has caused him damage. Defendant's Twitter handle was @levittlawyer, which is very similar to plaintiff's Twitter handle of @levittlaw. Defendant used the plaintiff's actual picture as his "avatar." He also used the plaintiff's logo as his background on the Twitter page.

Defendant argues that this Twitter account was a parody designed to make light of the plaintiff's marketing strategy, which included referring to himself as a "bad ass" attorney. [See, e.g., this video.-EV] On plaintiff's own Twitter account, he referred to himself as such and posted several Tweets encouraging the use of alcohol and marijuana. Defendant claims that the Tweets on the Todd Levitt 2.0 Twitter account, like the one that stated, "Partying=Defense Clients[.] Defense Clients=Income[.] If I endorse partying, will my income grow? It's like a Ponzi scheme for lawyers!" were meant to satirize and make fun of plaintiff's Tweets in a humorous way.

Defendant's account contained a disclaimer which stated, "A badass parody of our favorite lawyer most likely seen on Main Street." Defendant also posted three Tweets referring to the account as a parody and satire….

This court grants defendant's motion for summary disposition, finding that defendant's Twitter account constitutes a parody protected by the First Amendment. … The Supreme Court has held that certain statements are protected, even when provable as false, when they cannot reasonably be interpreted as stating actual facts about the plaintiff. Such statements, read in context, are not capable of a defamatory interpretation.

In this case, defendant's Twitter account, when considered in context, cannot reasonably be interpreted as anything other than a parody account. First, the language used in defendant's Tweets is an indication that Todd Levitt 2.0 is a parody Twitter account. One Tweet reads, "4/20=Pot smoking holiday[.] Possession of marijuana = Client[.] Client =Income[.] In the words of Snoop Dogg: smoke weed every day. #InToddWeToke." Another reads, "Partying=Defense Clients[.] Defense Clients=Income[.] If I endorse partying, will my income grow? It's like a Ponzi scheme for lawyers!"

It is unlikely that a reasonable person would interpret these Tweets to have been created by an attorney seeking to promote his business. It would be quite foolish for an attorney to outright state by way of self-promotion that he wants college students to drink and use illegal drugs so that he can increase his income by defending them in court. Instead, it is much more likely that a reasonable person would see these Tweets as attempts to ridicule and satirize plaintiff's own Tweets that discuss alcohol and marijuana use.

Second, when defendant's Twitter account is considered in context, particularly considering defendant's multiple disclaimers, the Todd Levitt 2.0 account cannot reasonably be interpreted as anything other than a parody account. The fact that the account is titled "Todd Levitt 2.0" is an initial indication that this is not an original and genuine Todd Levitt Twitter account. Further, defendant included a disclaimer on the account's main page, which stated, "A badass parody of our favorite lawyer most likely seen on Main Street."

Additionally, defendant included three separate Tweets reminding any readers that the account was parody or satire. On April 15, 2014, defendant tweeted, "Remember kiddoes, parody accounts are #badass and #lawful." On April 16, 2014, defendant tweeted, "Word of the day for @twebbsays is satire. Three syllables. Once you get a grasp of the concept a lot of things will start making sense." Finally, on April 22, 2014, defendant tweeted, "A gentle reminder to potential seekers of Todd Levitt: This is not him. This is a parody account. You can find the real Todd(ler) @levittlaw." When Todd Levitt 2.0 is considered in the context of these multiple disclaimers, this court finds that the account cannot reasonably be interpreted as stating actual facts about the plaintiff.

Defendant's Twitter account, Todd Levitt 2.0, is a parody that is protected under the First Amendment of the United States Constitution. The Tweets were meant to ridicule and satirize plaintiff's social media presence in a humorous way. However, whether defendant succeeded in creating a humorous parody is irrelevant for the purposes of the First Amendment. It is clear that Todd Levitt 2.0 cannot reasonably be interpreted as anything other than a parody account. Therefore, it is protected speech under the First Amendment.

For a similar (though not identical) case, see the Where the Wild Libel Lawsuits Are case from the Texas Supreme Court (New Times, Inc. v. Isaacks (Tex. 2004)). For more on the back story, see this Inside Higher Ed article (Carl Straumsheim); the Inside Higher Ed connection is that Todd Levitt was an adjunct professor at Central Michigan University, and the defendant, Zachary Felton, was a student there (and the son of finance and law professor James Felton). The Inside Higher Ed story reports that Todd Levitt's colorful reactions to Felton's parody are archived here.

In any event, I'm pleased to report that on Friday my Scott & Cyan Banister First Amendment Clinic students (Michael Newborn and Anjelica Sarmiento) and I—with the help of indispensable local counsel Michael F. Smith (many thanks to him!) and incoming University of Virginia law student Wyatt Kozinski—filed a friend-of-the-court brief on behalf of the Electronic Frontier Foundation supporting defendant Zachary Felton in this appeal. You can read more about it on EFF's DeepLinks (Jamie Lee Williams), or you can read the brief itself here. Decide for yourself how badass our brief is, or is not.