Free Speech

Libel Lawsuit by Trump Supporter (and Sanctuary-State Opponent) Roslyn La Liberte Against MSNBC's Joy Reid Can Go Forward

So a Second Circuit panel just held.

|The Volokh Conspiracy |

From La Liberte v. Reid, decided today by the Second Circuit (in an opinion by Judge Dennis Jacobs, joined by Judges Amalya Kearse and Jose Cabranes):

Plaintiff Roslyn La Liberte spoke at a 2018 city council meeting to oppose California's sanctuary-state law; soon after, a social media activist posted a photo showing the plaintiff with open mouth in front of a minority teenager; the caption was that persons (unnamed) had yelled specific racist remarks at the young man in the photo. {"'You are going to be the first deported' [and] 'dirty Mexican' [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast."}

Defendant Joy Reid, a personality on cable television, retweeted that post, an act that is not alleged to be defamatory. The defamation claim is based on Reid's two later posts: her June 29 post showed the photograph and attributed the specific racist remarks to La Liberte; her July 1 post, to the same effect, juxtaposed the photograph with the 1957 image of a white woman in Little Rock screaming execrations at a Black child trying to go to school. {[Reid wrote,] "It was inevitable that this [juxtaposition] would be made. It's also easy to look at old black and white photos and think: I can't believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove"}

The teenager who was photographed with La Liberte soon after publicly explained that La Liberte did not scream at him and that they were having a civil discussion. La Liberte sued Reid for defamation in the United States District Court for the Eastern District of New York….

The Second Circuit held:

[1.] The California anti-SLAPP statute (which provides for early dismissal of various libel claims) doesn't apply in federal court, because it conflicts with the Federal Rules of Civil Procedure. This deepens an existing circuit split on this important procedural question.

[2.] Reid is not immune under 47 U.S.C. § 230, because she is being sued for her own statements, not for the statements of third parties (such as of the social media activist).

[3.] La Liberte isn't a "limited-purpose public figure," and thus can recover compensatory damages based merely on a showing that Reid negligently erred, without having to show that Reid knew her statement was false or at least likely false (what libel law misleadingly calls "actual malice"):

The district court ruled that La Liberte was a limited purpose public figure on the California sanctuary-state controversy, and dismissed her claim as to the June 29 Post for failure to plead actual malice.

There are two kinds of public figures. "The all-purpose public figure … has achieved such pervasive fame or notoriety that he or she becomes a public figure for all purposes …. The limited purpose public figure … voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues." No one argues that La Liberte is an all-purpose public figure; the question is whether she became a limited purpose public figure with respect to California's sanctuary-state law (SB 54), that is, did she "thrust [herself] to the forefront" of the controversy, "invite attention and comment[,] … [and] assume special prominence in [its] resolution." Khawar v. Globe Int'l, Inc. (Cal. 1998). The district court answered affirmatively because La Liberte "attended and spoke about SB 54 at multiple city council meetings" and "appeared in a photograph in the Washington Post about the SB 54 controversy" one month before the Simi Valley Council Meeting.

That is not nearly enough. Thin as the findings are to begin with, the district court did not take into account the requirement that a limited purpose public figure maintain "regular and continuing access to the media." One reason for imposing the actual malice burden on public figures and limited purpose public figures is that "[t]hey have media access enabling them to effectively defend their reputations in the public arena." We have therefore made "regular and continuing access to the media" an element in our four-part test for determining whether someone is a limited purpose public figure. Contemporary Mission, Inc. v. New York Times Co. (2d Cir. 1988). The California cases cited by the district court similarly turn on media access.

La Liberte plainly lacked such media access. The earlier photograph, which showed her conversing, was in a Washington Post photo spread of attendees at an SB 54 protest. The article did not name La Liberte, let alone mention her views. The single caption described everyone depicted as "[s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los Alamitos City Hall." Such incidental and anonymous treatment hardly bespeaks "regular and continuing access to the media."

Nor does La Liberte's participation at city council meetings. La Liberte is said to have "testif[ied] eight times around the state"; but Reid does not identify instances in which the media singled out La Liberte's participation as newsworthy. Nor does speech, even a lot of it, make a citizen (or non-citizen) fair game for attack. Imposition of the actual malice requirement on people who speak out at government meetings would chill public participation in politics and community dialogue.

True, La Liberte received media attention. Reid emphasizes that La Liberte appeared for a television interview after Vargas published his tweet but before Reid's posts were published. However, media access that becomes available only "after and in response to" damaging publicity does not make someone a public figure. By the time of the interview, the Photograph had gone viral, along with accusations that La Liberte had screamed vile racist remarks at a child. The interview was "only the media access that would likely be available to any private individual who found himself the subject of sensational and defamatory accusations." "If such access were sufficient … , any member of the media … could confer public figure status simply by publishing sensational defamatory accusations against any private individual."

It makes little sense to deem La Liberte a limited purpose public figure when she stepped forward solely to defend her reputation. People become limited purpose public figures only when they "voluntarily invite[ ] comment and criticism" by "injecting themselves into public controversies." La Liberte, however, did not use the interview to inject herself to the forefront of the sanctuary-state controversy; she was pulled into a spotlight. Her experience suggests why the Supreme Court has only hypothetically recognized the notion of an involuntary public figure. {The Court acknowledged the possibility of becoming an involuntary public figure but cautioned that "the instances of truly involuntary public figures must be exceedingly rare."}

Since La Liberte was not a limited purpose public figure, the district court erred by requiring her to allege actual malice, and her claim as to the June 29 Post should not have been dismissed for failing to do so. On remand, the district court may assess whether La Liberte adequately alleged that Reid acted negligently with respect to that post, the standard for private-figure plaintiffs.

[4.] The court also concluded that the July 1 Post contained factual assertions that could form the basis for a libel lawsuit, and not just opinion:

"[A]ccusation[s] of concrete, wrongful conduct" are actionable while "general statements charging a person with being racist, unfair, or unjust" are not. … [For instance, in an earlier case,] a press release and leaflets discussing a company's termination of immigrant workers were actionable because they did not "merely accuse [the company] of being 'racist' in some abstract sense." Rather, the press release "contain[ed] language which expressly accuse[d] [the company] of engaging in racist firings," and the leaflets "refer[red] to [the company's] conduct as 'racist and discriminatory abuse against Latina women immigrants.' "

A reader could interpret the juxtaposition of the Photograph with the 1957 Little Rock image to mean that La Liberte likewise screamed at a child out of racial animus—particularly in light of Reid's comment that "[h]istory sometimes repeats." That interpretation is bolstered by Reid's description of the white woman in the Little Rock photograph as a "person screaming at a child, with [her] face twisted in rage" and Reid's comment that it was "inevitable" that the photos would be juxtaposed. Reid thus portrayed La Liberte as a latter-day counterpart of the white woman in 1957 who verbally assaulted a minority child. … Reid "did not merely accuse [La Liberte] of being 'racist' in some abstract sense." Rather, her July 1 Post could be understood as an "accusation of concrete, wrongful conduct," which can be proved to be either true or false. That makes it potentially defamatory….

Since … La Liberte adequately alleged negligence, the standard for private-figure plaintiffs[, h]er claim as to this post should proceed to discovery.

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  1. Good, we need to hold public figures to account when they attempt bully random normal people like this woman.

    1. But these arent regular public figures… they are the virtuous media who would never push false narratives.

  2. Could we ever get a court – maybe a federal circuit court or the Supreme Court – to rule that, as a matter of law, accepting something posted on social media at face value either is or isn’t reasonable / isn’t or is potentially negligent?

    I suppose it will always have to be a question of fact, as circumstances matter. But could we get legal doctrine that said that it either is presumptively reasonable or presumptively unreasonable, leaving a heavier burden to prove – based on circumstances – that it’s the other?

    1. Why would that be necessary or desirable?

    2. It should result in a (rebuttable) presumption of reckless disregard for truth (and, accordingly, also negligence).

      A reasonable person does not trust unvetted statements from unvetted sources. If you can’t show the trier of fact a reason why you believed the source beyond “it showed up in my feed”, well, you’ve thoroughly demonstrated that you went ahead and relied on it despite an “obvious reason to doubt the veracity and accuracy of the source”. (To wit, the fact that social media is full of nonsense.)

    3. Firstly all social media posts are not created equal, so a universal rule regarding the reasonableness of “accepting” one is both unlikely and undesirable. Most would agree that, for example, it would be generally more reasonable to accept something from the Wall Street Journal than from some random, anonymous Twitter user.

      Secondly, defamation is a state-law cause of action, not a federal one, so federal courts only apply the law of the appropriate state. So there cannot be a universal, authoritative statement from a federal court on some point of defamation law, which varies from state to state.

  3. The SLAPP analysis seems right to me. I don’t like the result, and it’s further evidence of why we need a federal anti-SLAPP statute, but it seems right.

    The public figure analysis seems wrong to me, as does the analysis of the second post.

    1. Claiming she was a limited purpose public figure because she appeared in a photo in the paper seemed ridiculous to me. It isn’t as if she posed for a photo and gave her permission. A photographer took a picture of a bunch of people talking at a public event. A different person cropped that photo and applied a caption that made claims about yelling racist insults. I really don’t see how attending a city council meeting and someone taking your picture without your involvement or consent should convert you into a public figure.

      If that is the threshold, I don’t see how anyone who found themselves being slandered in the media would not magically transform into a public figure, negating any such distinctions.

      1. I think you are right. Properly, she isn’t a limited purpose public figure. Look at Hutchinson v. Proxmire. It’s supposed to be limited to people who voluntarily inject themselves into the center of public debates.

        Now having said that, the doctrine has been all over the place recently. I tried to convince SCOTUS to take a case on behalf of Kathy McKee, one of Bill Cosby’s victims, but they denied cert. So I understand why someone might think speaking at some council meetings and appearing in a photo might be enough. But following SCOTUS precedent, this isn’t even close to a limited purpose public figure.

  4. Kearse, Jacobs, and Cabranes?! Was it Old Timers Day at the Second Circuit? (Cabranes is the only regular circuit judge, and he was born in 1940 according to Wikipedia.)

    But I guess it goes to show that the old folks still got it.

  5. The drive by media being held accountable for their biased shoddy reporting. We can only hope this is the beginning of a long trend…

  6. She’s gonna be fine… She had every reason to believe that it was true. It was all over twitter after all.

  7. Joy Reid is problematic. So MSNBC promoted her.

    1. She’s generally pretty thoughtful and restrained (as far as cable news shows go. She’s no Shep Smith or Ted Koppel. But a million miles from Tucker or Sean.

      In this case, I think the court got it right. She was wrong, she screwed up, and I think the plaintiff is entitled to at least a few thousand dollars. (I would not inflate a recovery due to the harmful consequences of the inevitable Streisand Effect.)

      1. Why do progessives fail to see “the beam in their eye “? I acknowledge that a Carlson and Hannity opinion is on the right but, Reid, Lemon, etc are as far left of center as progressive’s perceive a Carlson are on the right. Many years ago when I first registered to vote, it was as a Democrat. I don’t recognize anything in the current Democratic/ progressive, woke left that remotely resembles the values or views of my younger years. I don’t believe my values and perspectives have drifted significantly. The Democrats and Leftist have moved way off the spectrum. I can understand and have civil debates and disagreement with liberals. Classical liberal arts and attitudes wanted a diversity of opinion. Leftist and the public face of Democrats deem disagreement or alternative thought to be unworthy of consideration and the people holding those beliefs inferior intellectually and culturally.

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