Free Speech

Accusations of Trying to "Hit on Underage Girls" Aren't Defamatory Without Proof of Actual Damage,

at least under the Illinois "innocent construction" rule, under which "a nondefamatory interpretation must be adopted if it is reasonable"—"a reasonable reading of Lorenz's article is that although Wedgewood communicated with underage girls, he never meant to take things further."

|The Volokh Conspiracy |

From Judge John Z. Lee (N.D. Ill.) in yesterday's Wedgewood v. Daily Beast Co. LLC decision:

Eric Wedgewood is the creator of Content Zone, a page that collects and distributes memes…. Taylor Lorenz worked as a content journalist for [the Daily Beast].

On April 14, 2018, an anonymous Instagram account began impersonating Wedgewood. For about a week, the account posted false statements accusing Wedgewood of pursuing underage girls. Just eight days after the account was created, Instagram shut it down.At around the same time, Lorenz began investigating Wedgewood. Although Lorenz's research methods remain unclear, she claims to have spoken with several anonymous sources who received improper messages from him. At the end of her investigation, Lorenz invited Wedgewood to comment on her story, but did not interview him or otherwise inform him about the nature of her research.

Soon, The Daily Beast published Lorenz's article on Wedgewood. Titled "'He Started Messaging Me When I was 16': Female Members Slam 'Content Zone's' Creator," the article quoted two anonymous women who criticized Wedgewood for hitting on them when they were underage. With Wedgewood's alleged misconduct as a starting point, Lorenz went on to describe a broader problem with Instagram's meme pages. "[I]t [i]s sadly unsurprising to see an older man [such as Wedgewood] using an anonymous meme account to allegedly pick up young women," Lorenz reported, as "this type of behavior is rampant on [Instagram]."

Wedgewood faults many aspects of Lorenz's reporting. For example, he notes that she does not seem to have corroborated the claims of the anonymous sources quoted in her article. He also chastises Lorenz for failing to investigate the possible connection between those sources and the Instagram account that had targeted him.

Wedgewood sued The Daily Beast, but the court dismissed the case:

Wedgewood argues that The Daily Beast defamed him by reporting that he flirted with underage girls. Under Illinois law, … [t]o state a plausible defamation claim, a plaintiff must show that: (1) "the defendant made a false statement about the plaintiff," (2) "the defendant made an unprivileged publication of that statement to a third party," and (3) "that this publication caused damages." Perfect Choice Exteriors, LLC v. Better Bus. Bureau of Cent. Ill., Inc., 99 N.E.3d 541, 547 (Ill. App. Ct. 2018). Here, The Daily Beast contends that Wedgewood cannot establish the damages element.

In a defamation case, the plaintiff may satisfy the damages requirement in one of two ways. First, "a statement is defamatory per se—meaning that damages are presumed—if its harm is obvious and apparent on its face." As relevant here, "words which impute the commission of a criminal offense" and "words that prejudice a party, or impute lack of ability, in his or her trade, profession or business" amount to defamation per se.  In a per quod action, "damage to the plaintiff's reputation is not presumed, and the plaintiff must prove special damages in order to recover." …

Wedgewood's primary argument is that by implying that he had solicited teenage girls—a criminal offense—The Daily Beast committed defamation per se. In her article, Lorenz wrote that Wedgewood "hit[] on underage girls via direct message." The "intended inference[] and imputation[]," Wedgewood warns, "are that [he] engaged in alleged sexual misconduct involving underage girls that is reasonably understood as a crime." The Court agrees that one interpretation of Lorenz's article is that Wedgewood intentionally [and criminally] solicited minors to perform sexual acts.

But that is not the only plausible reading. Under the [Illinois] innocent construction rule, if a "statement may reasonably be interpreted as asserting something other than what is implicated by the [relevant] per se category, it is not actionable per se." Although the allegedly defamatory statements need not "state the commission of a crime … with the particularity of an indictment," "a nondefamatory interpretation must be adopted if it is reasonable."

Here, a reasonable reading of Lorenz's article is that although Wedgewood communicated with underage girls, he never meant to take things further. See 720 Ill. Comp. Stat. 5/11-6(a) (clarifying that indecent solicitation of a minor requires intent to commit sexual assault). Notably, The Daily Beast did not report that Wedgewood asked girls to share inappropriate pictures, meet him in person, or engage in sexual activity. In those circumstances, Lorenz's article can reasonably be read as accusing Wedgewood of what is certainly questionable conduct, but not illegal conduct. As such, Wedgewood has failed to establish defamation per se.

Arguing in the alternative, Wedgewood attempts to fit Lorenz's article into a different category of defamation per se. The allegedly defamatory statements, Wedgewood insists, "prejudice[d] him in his profession." But that is all Wedgewood says. Missing from his response is any explanation as to how the allegedly defamatory statements disrupted his business. Indeed, he does not even state what his profession is. As such, the Court finds that Wedgewood has waived argument as to this issue. In short, Wedgewood cannot state a claim for defamation per se….

Wedgewood's effort to plead defamation per quod fares no better. To make out such a claim, a plaintiff must prepare "a specific accounting of [his] damages or an explanation of how the purported defamation caused them." Wedgewood's vague references to "loss of income [and] loss of reputation" fall short of that high standard…. "General allegations of damages, such as damages to an individual's … reputation or general economic loss, are insufficient to state a claim of defamation per quod." …

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  1. Seriously, what does the court think “hit on” means, anyway? Just “talk to”? Is English the court’s second language?

    1. The court should have been more explicit, I think, but certainly “trying to start a romantic, but nonsexual, relationship” is a plausible interpretation of “hit on”.

      1. But I agree with KenveeB below that as far as the actual law goes, an allegation like this is still damaging to reputation, even if there’s a non-criminal reading of it.

    2. “Hit on” can mean flirting. Some men just flirt with young girls to stroke their ego, but take it no further.
      At least that is how the Court read it, I think. It sounds like Illinois law bends in favor of any reasonable interpretation. The point is to take it out of defamation per se, and then require him to show damages.

      1. So it’s not defamatory to publish that the judge in this case just loves to hit on attractive pre-pubescent kids. Got it.

        1. No, it’s not defamation per se. It might be defamation per quod. Read the post.

    3. Seriously, what does the court think “hit on” means, anyway?

      “Flirt”.

      Flirting doesn’t always lead to sex, nor is that hope always there.

  2. It is time to bring back dueling. And with no regard for real or assumed gender.

  3. I completely disagree that in this day and age, you can say that a claim an older man was hitting on teenage girls is not damaging to his reputation. Even allegations of non-criminal conduct along those lines would still be damaging.

    1. Any claims of innocent reporting make no sense; the only reason to write the article is to at least hint at salaciousness. No one would write the article or pay for it otherwise. Its very writing and publication is proof of intent to either defame or mislead. IANAL and don’t know what the law says, but I can’t imagine anyone reading such an article without thinking where there’s smoke, there’s fire.

    2. The judge didn’t say that it wasn’t damaging to the plaintiff’s reputation; the judge said that this was the type of case where the plaintiff had to plead specifics about his damages, and he failed to do so. (The plaintiff has another opportunity to do so, though.)

  4. Do I understand that the precise nature of the communications is not stated?

    If so it seems reasonable he was “chatting up” young girls to help him create “memes” that appeal to that group.

    he only age mentioned is 16, which is under the age of consent in California, but not all states and we all know no one under 18 ever has sex.

    1. On the contrary, the nature of the communications is stated when you say “hitting on”.

      But, yes, in many states it’s not statutory rape until you get well below 18.

      1. Unless you live in a backwards jurisdiction run by puritans trying to enforce archaic, outdated, and oppressive moral codes.

        Like California, for example.

    2. While his exact words may not have been quoted, “hitting on” is a statement of romantic or sexual intent. If I say a guy was hitting on me, I don’t mean we were having a completely platonic discussion.

      1. ‘Hitting on” is a characterization of the communication, that is someone’s interpretation. As I recall from my long ago single days that was often simply opening a conversation with someone you were interested in and entirely in the eye of the recipient of the attention (or some third party with observing it).

      2. “hitting on” is a statement of romantic or sexual intent.

        Unless it’s shouted at a woman on the street, whereupon it becomes “just paying a compliment”?

        I kind of feel like hitting on/flirting/whatever is more complicated then you and Brett are admitting to.

  5. Here’s a less-than-most-innocent-imputation: This bitch got someone to just SAY he’d hit on them, and that they were underage, and used that to try to assassinate his character. This imputation is based on one of the primary tenets of the Lefty Journalist Code, “Always lie.”.

    And a confident prediction: The memes his site has generated are sometimes, maybe always, embarrassing to figures on the Left. Otherwise, the Daily Breast would not undertake such reportage.

    1. Eh, nothing to do with lefties in general, even if so in this particular case. The only point in the Instagram allegations, and in the reporting, was to hint at trouble brewing. No one would open an Instagram account without such intent; no one would write it up without such an intent; and no one would publish it without such intent.

      It’s just like all gossip, whether a tiny village or a big city. You don’t pass it along except because you want to hint that where there’s smoke, there’s fire. Even if you don’t believe the allegations themselves, you pass them along because they say something “truthful” about someone’s personality and character, whether it’s the target of the allegations or the person who told you or started the gossip.

  6. What? No tie in to the Corona Virus panic?

    1. One of the alleged victims was a covid19 virion.

  7. It might be interesting to subject the judge to the same sort of unfounded rumors and see if he still thinks there is no damage from it.

    1. The judge is constrained by the law. Perhaps you ought to subject legislators to the same sort of unfounded rumors, not the judge.

    2. and see if he still thinks there is no damage from it

      But that is just the point. There are a narrow range of defamations that the PRESUMES cause damage. And then a wider range where you can still sue, but then you have to show specifically how you were damaged. He could not do either of them.

  8. Illinois law has a very cramped definition of defamation per se. reputations D.A.,age goes far beyond mere professional hardship or accusations of criminality.

    In this day and age, where the media is culturally and geographically isolated from large swathes of the american people (and thus less likely to be scrupulous in reporting on them), having defamation laws with teeth is more important than ever.

    Instead the courts have been raising the standards and closing the door on plaintiffs

  9. I cannot agree with this.
    This “innocent construction” interpretation ignores the clear and express purpose of the published article. It also ignores standard English usage to the point of absurdity.

    Per-Quod is almost impossible to calculate aside from very specific and very extreme situations.

    The actual malice standard is extreme enough for public figures. We don’t need to add in absurd standards for even allowing people to file charges.

    1. Seems to me the “clear and express purpose” of the article was to damage the reputation of the subject and Instagram. Or did I miss something?

  10. It strikes me that this is yet another example of a judge deciding something as a matter of law, that should be decided by a jury as a matter of fact. As with a lot of Section 1983 claims, this ruling requires fact finding, and that should be done by a jury.

    In this case, the fact questions are what the speaker intended, how a reasonable listener would have interpreted the statement, whether a reasonable person would believe that the statement means the plaintiff is engaged in criminal activity (or solicitation of criminal activity), etc. This is why we have juries.

  11. Reading the opinion, it looks like the chief problem is that he just didn’t file well. There’s lots of stuff that he needed to elaborate on in order to move forward.

    Which is why the conclusion is important:

    Wedgewood is granted leave to file an amended complaint to address the deficiencies
    identified above. Such an amended complaint must be filed by April 8, 2020. If an
    amended complaint is not filed by that time, this case will be dismissed with
    prejudice.

    The judge just told him his homework is done wrong. Redo it, and we’ll try again.

    1. Excellent point.

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