The Volokh Conspiracy
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I'm delighted to report that the Michigan Court of Appeals has just upheld a Twitter parodist's First Amendment claim in the "badass lawyer" case, Levitt v. Felton:
Todd Levitt is an attorney and a former adjunct professor at Central Michigan University (CMU). Allegedly, university students are a primary clientele of plaintiff law firm.
Levitt was actively involved in marketing his law firm on various social media platforms, including Twitter. His since-deleted Twitter account represented that he was a "badass lawyer." In addition to promoting his law practice on Twitter, Levitt admittedly made several posts which referenced marijuana and alcohol use. For instance, he posted a tweet about serving alcohol in a class he taught at CMU, and in another, stated that "Mr. Jimmy Beam just confirmed a guest appearance in class next week."
In other tweets, he reminisced about his days as a student at CMU, stating that he "tore it up" in the 1980s, and warning students not to "jump [while] drunk" in the elevators at a certain dormitory. He tweeted about being a guest bartender at a local bar and about throwing an end-of-semester party. He also referenced marijuana in several tweets; in one tweet he posted an ode to "mommy marijuana," who "always put me at ease." In addition, he tweeted that if marijuana were legal in Mount Pleasant, Michigan, the CMU "dorms would look like they were on fire."
In April 2014, Levitt, who identified himself on Twitter as "Todd Levitt@levittlaw," noticed an unidentified individual had created an account, "Todd Levitt 2.0 @levittlawyer" that included a photograph of Levitt and a logo used by his law firm. Levitt later discovered, and defendant admitted as much, that defendant, a CMU student at the time, was responsible for the imposter Twitter account. Levitt alleged that defendant attempted to confuse Levitt's Twitter followers by using his likeness and logo. He also alleged that defendant attacked his credibility as an attorney and as a professor by posting the following tweets to the imposter account:
1. "What's the difference between the internet and my tweeted legal advice? A: none. They're both 100% accurate!"
2. "Buying me a drink at Cabin Karaoke will get you extra [credit], but it's not like that matters because you are guaranteed an A in syllabus."
3. "Partying = Defense Clients[.] Defense Clients = Income[.] If I endorse partying, will my income grow? It's like a Ponzi scheme for lawyers!"
4. "@twebbsays should either meet me at 4/20 in my satellite office or take a hiatus from the medical card" and "#inToddWeToke" and "4/20 = Pot smoking holiday[.] Possession of marijuana = Client[.] Client = Income[.] In the words of Snoop Dogg: smoke weed every day. #inToddWeToke[.]"
After allegedly enduring defendant's harassment for two weeks, Levitt deleted his Twitter account to "prevent further damage to his reputation." Levitt contended that during the two-week period, he received dozens of phone calls from clients, potential clients, and parents who were distressed that Levitt had exhibited the behaviors discussed in defendant's tweets. According to plaintiffs, two potential clients also informed Levitt that they declined to hire him because they believed that defendant's tweets were an accurate representation of his character. Levitt contended that he could not continue as an adjunct professor and has suffered loss of income.
Plaintiffs' theories of liability against defendant included claims of false light, intentional infliction of emotional distress, libel, tortious interference with business relations, defamation per se, business defamation, and unfair competition. Plaintiffs asked for the immediate termination of the "Todd Levitt 2.0 @levittlawyer" Twitter account in order to prevent future injuries to their reputation and business.
In answering the complaint, defendant admitted that he was responsible for the imposter account and characterized the account as a "parody." He asserted that on April 15, 2014, he posted this tweet: "Remember Kiddoes, parody accounts are #badass and #lawful." On April 16, 2014, he posted: "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." And on April 22, 2014, he tweeted the following disclaimer: "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." [The trial court held that Felton's speech was constitutionally protected parody.-EV] …
"[W]hen addressing defamation claims implicating First Amendment freedoms, appellate courts must make an independent examination of the records to ensure against forbidden intrusions into the field of free expression and to examine the statements and circumstances under which they were made to determine whether the statements are subject to First Amendment protection." … "[T]he First Amendment protects statements that cannot be interpreted as stating actual facts about an individual from serving as the basis for a defamation action or similar claim under state law." "Such statements include the usual rhetorical hyperbole and imaginative expression often found in satires, parodies, and cartoons."
The statements are protected if they, "although factual on their face, and provable as false, could not be interpreted by a reasonable listener or reader as stating actual facts about the plaintiff." Further, parodies and satire are protected even when they are intended to be highly offensive of the person criticized. When evaluating allegedly defamatory statements, we consider whether a reasonable reader, viewing the statements in context, would understand the statements to be "rhetorical hyperbole."
When read in context, defendant's tweets are a parody and cannot reasonably be interpreted as coming from Levitt, an attorney and college professor. The cited tweets ridicule and demean the legal profession, as well as Levitt's status as an attorney and a college professor.
In particular, some of the tweets encourage followers to commit alcohol and drug-related offenses in order to further Levitt's business. As aptly stated by the trial court, "[i]t 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."
Other tweets suggest that Levitt's students can earn extra credit in his class by buying him a drink. Surely this statement cannot be interpreted as coming from a college professor. As noted by the trial court, when the challenged tweets are read in the context of Levitt's own tweets, a reasonable person would see defendant's tweets as attempting to ridicule and satirize Levitt's tweets about alcohol and marijuana use.
Moreover, the idea that the tweets were a parody is soundly reinforced by several disclaimers posted to the imposter account stating that the account was indeed a parody. At the outset, the account itself was styled as "Todd Levitt 2.0," which has come to be commonly accepted jargon for describing an upgrade of an original concept. Thus, "Todd Levitt 2.0" signals that the account was identifying itself as a superior or upgraded version of Levitt, which hints at the notion that it is a spoof.
Further, defendant's tweets expressly stated, on multiple occasions, that the account was intended as a parody. For instance, one tweet read that the account was "[a] badass parody of our favorite lawyer …." Another gave 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." (Emphasis added). In light of these statements, a reasonable reader could not have interpreted the account as stating actual facts about Levitt.
Contrary to the suggestions made by plaintiffs on appeal, it does not take any factual determinations or fact-finding in order to conclude that the challenged tweets are not actionable. "[A] court may decide as a matter of law whether a statement is actually capable of defamatory meaning." "Where no such meaning is possible, summary disposition is appropriate." Because the statements at issue in this case could not reasonably be interpreted as factual statements by or about Levitt, summary disposition in favor of defendant was appropriate.
[Footnote: Because all of plaintiffs' claims were premised on the allegedly defamatory statements, we conclude that the trial court properly dismissed all of the claims, notwithstanding the different labels placed on the claims….]
Look generally quite right to me.
I should note that I filed a friend-of-the-court brief in this appeal on behalf of the Electronic Frontier Foundation, through the Scott & Cyan Banister First Amendment Clinic that I run here at UCLA; and Felton's lawyer, Jon Schrotenboer, also kindly agreed to split his oral argument time with me. Many thanks to my local counsel, Michael F. Smith for all his help, as well as to Dan Bussel, Jennifer Dukarski, Ingrid Eagly, Robin Luce-Herrmann, Herschel Fink, Chris Lund, and Joseph Richotte for their help with moot courts for my argument; and to law students Michael Newborn, Anjelica Sarmiento, and Wyatt Kozinski for their work on the brief.