'Beware of the Internet and Facebook. You might find yourselves paying damages to someone.'

|The Volokh Conspiracy |

Last week's panel opinion in Breen v. Holmes (La. Ct. App. Dec. 7, 2017) is a pretty standard application of libel law principles (I quote it at length below). Some online commenters were arguing that a woman (Kacie Breen) who shot and killed her husband should have been charged with murder, despite her claims of self-defense. The court held that, in context, the statements were opinion evaluating the published evidence, and thus couldn't form the basis of a defamation claim. But, to my surprise, one of the judges, Judge John Pettigrew, added a short concurrence, saying in part:

I must express my concerns about the defendants' statements. I suggest the statements were loose, gossipy, and reflected a lynch-mob mentality. The citizens of Louisiana should beware of the Internet and Facebook. You might find yourselves paying damages to someone.

That seems to me quite odd, especially since the judge joined a decision that concluded that the "loose," "gossipy" and allegedly lynch-mobby statements were legally nonactionable opinion. If the judge is warning people against expressing their opinions, that strikes me as quite troubling—and if he's warning them against making false factual assertions (which would indeed be libelous), that warning seems misplaced here (especially absent some clearer explanation of what he's warning about).

In any case, here's the quick summary of the factual background:

On March 1, 2015, Kacie Magee Breen shot and killed her husband, Wayne Breen, a St. Tammany Parish physician. She maintains she was defending herself from an attack and reasonably believed she was in imminent danger of death or great bodily harm. Following the shooting, local media attention focused on Dr. Breen's death, the St. Tammany Parish coroner's classification of the death as a homicide, the criminal investigation that resulted in Breen not being arrested, charged, indicted, or prosecuted for her husband's death, and Breen's actions related to Dr. Breen's estate.

In January 2016, Breen filed suit alleging the defendants defamed her in internet posts commenting about events before, at the time of, and after Dr. Breen's death. She claimed all the statements about her, including those calling her a murderer, were false and caused her shame, humiliation, discomfort, loss of reputation, public ridicule, loss of income, and mental anguish.

And here's the court's legal analysis:

["]In determining whether an expression is a statement of fact or opinion under the common law, words must be read in their context. Words which, taken by themselves, would appear to be a positive allegation of fact, may be shown by the context to be a mere expression of opinion or argumentative influence…. In order for a statement to be defended as fair comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement of fact.["] …

The claims against Arndt and Maestri are premised on single internet posts attributed to each of them. Neither post is dated, but the record establishes they were made before Breen filed suit on January 6, 2016, which was less than one year after Dr. Breen's death on March 1, 2015. The record additionally establishes that during that year, the media focused continuous attention on the shooting, the classification of the death as a homicide by the coroner, the claim that Breen acted in self-defense during a violent altercation, the legal "battle" between Breen and Dr. Breen's heirs over his estate, the removal by Breen of items from Dr. Breen's office, the criminal investigation into Dr. Breen's death, protests expected at the courthouse related to these matters, the decision not to arrest Breen, court filings recounting the self-defense claim, a civil wrongful death suit against Breen, and this defamation suit.

The allegedly defamatory statement attributed to Arndt is:

I guarantee that she had this plot in the makings for sometime. There is no doubt that she staged all the abuse charges against him knowing she could use it later. She is a wicked person.

Arndt averred in her affidavit that she had known Dr. Breen for twenty-one years, believed he saved the lives of her daughter and grandchild, and was sad about his death. She joined a Facebook group called "Rest In Peace Dr. Breen," for people grieving Dr. Breen's death. She recalled reading that the coroner classified Dr. Breen's death as a homicide and expressed frustration with the decision not to arrest Breen. Arndt stated she joined what she believed was a closed Facebook group called "Justice For Dr. Breen," for people angry and upset that Breen was not arrested and who wanted to discuss whether Breen should be arrested and prosecuted. Arndt averred that any comment she posted was strictly her opinion that Breen should be arrested.

The allegedly defamatory statement attributed to Maestri is:

The more I learn about this tragedy, the more I am convinced that Dr. Breen's death was premeditated murder and not manslaughter in a moment of passion. How, in God's name, has this woman avoided arrest? ? ? My most sincere sympathy to the Breen children that they must suffer further as they grieve the loss of their father.

Maestri averred in her affidavit that she had known Dr. Breen for two years, and considered him a source of strength and support for her family. She stated she posted her condolences to his family on the funeral home's grief page, where she also read about the closed Facebook group called "Rest In Peace Dr. Breen," for people grieving the death of Dr. Breen. Maestri stated she believed the purpose of the group was to read about and try to understand what happened to Dr. Breen.

Maestri also stated she joined the Facebook group called "Justice For Dr. Breen," which helped her understand the loss of Dr. Breen. She indicated she is still upset Breen was not arrested and outraged by what she believes is an injustice. She explained that any comment she posted was her opinion about Dr. Breen's death and whether Breen should be arrested and prosecuted….

In making their statements, neither Arndt nor Maestri represented that they are a legal authority on the distinctions between the grades of criminal homicide and the legal definition of justifiable homicide. Nor does either statement imply that the speaker is privy to undisclosed facts. Rather, the evidence establishes that the statements were made against a backdrop of continuous media reports fixing the public's attention on these issues, specifically whether Breen should be criminally prosecuted for killing her husband, based on the facts being reported.

When considered in context, a reasonable person considering Arndt's and Maestri's statements in the particular forums in which they were made would not believe them to be anything other than the subjective opinions of Arndt and Maestri expressing disagreement with Breen's claim that she acted in self-defense and their criticism of the decision not to criminally prosecute her. Neither statement is an actionable defamatory statement. Rather, both are constitutionally protected statements of opinion….

UPDATE: Paul Alan Levy (Consumer Law & Policy Blog) has a more positive take on the concurrence; here's an excerpt, though you should read the whole thing:

t, I often have to give bad news to people about whether demand letters that they have been sent or libel suits that have been filed against them, based on some criticism they posted on public forums such as Yelp, can easily be defeated. And I am also put in the position of helping them try to find lawyers they can afford if they want to stand up for their rights—that is often not easy, especially in states where, unlike Louisiana, there is no good anti-SLAPP law. The line between nonactionable opinion and actionable fact can be a fine one, and most people have little sense of where that line is located. And even if the speech is defensible, the cost of defending the right to express opinions and make truthful statements can be devastating, even if the suit is ultimately dismissed on summary judgment. If I have a criticism of the judge's concurrence, it is that the biggest risk is not of paying damages, but rather of having to pay a lawyer.

So I have no problem with reminding members of the public that Twitter, Facebook and other platforms are not a zone liberated from defamation law.