Free Speech

Libel Case Flowing from the Philando Castile Shooting Can Go Forward

Defendant, a local mayor and sheriff's deputy, tweeted about Castile's girlfriend (who had gotten a settlement from local government entities), "She needs to come off County and State Aid now that she has some cash. It'll be gone in 6 months on crack cocaine."

|The Volokh Conspiracy |

From Judge Ronald L. Abrams' opinion in Reynolds v. McBroom, decided May 11 but just posed on Westlaw (2020 WL 4001126):

On July 6, 2016, St. Anthony Police Officer Jeronimo Yanez shot and killed Philando Castile during a traffic stop. At the time of the shooting, Castile's girlfriend, Plaintiff Diamond Reynolds … and her minor daughter were seated in Castile's car. Due to their close proximity to the shooting, Plaintiff believed "that both she and her daughter would be shot for no good reason." Following the shooting, Plaintiff and her daughter were detained and questioned by the Roseville police force.

In November 2017, Reynolds and her minor daughter reached settlements with the cities of St. Anthony and Roseville related to the events of July 6, 2016. In these settlements, Reynolds agreed to release her and her daughter's claims against both cities in exchange for a total of $800,000.

On November 29, 2017, following news coverage of these settlements, Defendant Tom McBroom … posted a tweet which the parties agree references Plaintiff. The tweet reads as follows: "She needs to come off County and State Aid now that she has some cash. It'll be gone in 6 months on crack cocaine." When members of the media asked McBroom what he meant by his tweet, he allegedly responded simply: "History."  Defendant, at the time, was the Mayor of Elysian, Minnesota, and employed by the Rice County Sheriff's Office. Following McBroom's tweet, he was demoted by the Sheriff's office as a sanction for the tweet…

The court allowed Reynolds' libel claim against McBroom to go forward (and likewise for the intentional infliction of emotional distress claim, but I think that will be viable only to the extent that it's based on statements found to be libelous):

In order to "ensure the freedom of expression guaranteed by the First Amendment," only those allegations which are "sufficiently factual to be susceptible of being proved true or false" are sufficient to state a claim for defamation…. [Minnesota precedent has set forth a four-factor test for analyzing whether a statement contains factual allegations, which] "… examines the statement's (1) specificity and precision, (2) verifiability, (3) literary and social context in which it was made, and (4) public context." …

McBroom's statement was specific and precise: "It'll be gone in 6 months on crack cocaine." "It" specifically refers to the settlement Reynolds received…. The statement specifically accuses Plaintiff of use and possession of crack cocaine. While the amount of cocaine McBroom alleges Reynolds will use is extremely high, the statement nonetheless explicitly and specifically alleges that Reynolds will commit a crime. Implicit in McBroom's statement is an allegation that Reynolds has a history of using crack cocaine.

"[V]erifiability" … generally [means that] "the statement [is] objectively capable of proof or disproof." … Although a close question, McBroom's statement is … close enough to the "verifiable" end of [the] spectrum to be actionable…. Plaintiff … argues that McBroom's statement specifically implies underlying facts: that Plaintiff currently possesses and uses or has used and possessed crack cocaine in the past…. {Plaintiff does not argue that McBroom's follow-up statement, in which he responded that he made the statement because of "History," is actionable. For the sake of thoroughness, however, the Court notes that this statement is not actionable. The simple word "History" does not necessarily refer to Reynolds in particular, and does not necessarily refer to any history of drug use she may or may not have. Because the word "History" is susceptible of many competing interpretations, it does not, even considered in the context of McBroom's tweet, constitute a provably false statement.} ….

Defendant's statement was not the derogatory name calling usually dismissed by Minnesota courts. Rather, the statement specifically alleged that Reynolds would possess and use crack cocaine and implied that she did possess and use crack cocaine….

[W]here language is used in a "metaphorical, exaggerated or even fantastic sense," such language is far less likely to be actionable defamation. Where readers are exposed to such language, they are "put on notice that he or she was reading opinions, and not being showered with facts." In contrast, a reader of McBroom's tweet was not, based on the content of the tweet, "put on notice that he or she was reading opinions." This factor weighs in favor of viewing the statement as actionable….

McBroom's statement was specific and perpetuated racist stereotypes. It went beyond offensive or vulgar language, and did not express an opinion about Reynolds. This factor weighs in favor of viewing the statement as actionable….

McBroom is employed by a Sheriff's office and was the Mayor of Elysian. Some of the audience of McBroom's statement could, therefore, have assumed that McBroom's statement was based on case records to which McBroom had access. McBroom did not reference any such records, and did not remind the audience of his access, if any, to such records. However, followers of McBroom's Twitter account probably knew that McBroom was employed by the Sherriff's office and was at the time of the statement the Mayor of Elysian. The statement could, therefore, be viewed by McBroom's Twitter followers as being from a source that had access to relevant information….

{[On the other hand], McBroom's statement was published as a tweet. Tweets, by design, are a highly condensed and de-contextualized form of communication. For this reason, most tweets may be viewed as more similar to an op-ed than as making precise, contextualized factual allegations. This factor weighs against viewing the statement as actionable. However, because this rule is based on factors surrounding the statement rather than on the statement itself, it weighs against viewing the statement as actionable only weakly….}

And the court also concluded that Reynolds wasn't a public figure, though it's not clear to me that this would be particularly important:

Reynolds is plainly not a public figure "for all purposes and in all contexts." However, Reynolds is a public figure with respect to a "limited range of issues" surrounding the highly publicized shooting of Philando Castile. Jeronimo Yanez, not Reynolds, is responsible for drawing Reynolds into the controversy surrounding the shooting. Gertz is clear that individuals can become limited public figures even involuntarily. The Court therefore must determine whether McBroom's statement discussed an issue within the range of issues for which Reynolds is a public figure.

In similar contexts, the Supreme Court has analyzed the "overall thrust and dominant theme" of allegedly defamatory statements in order to determine whether the statement regarded a public or private matter. In Snyder, the Westboro Baptist Church conveyed messages about "matters of public import" including the Catholic sex abuse scandal, the "political and moral conduct of the United States and its citizens," and "the fate of our Nation." The extreme vulgarity of these statements did not render their focus private, rather than public. Mixed in with those statements were statements directed at the Snyders specifically, including "You're Going to Hell" and "God Hates You." However, because these personal attacks constituted only a "few" of the messages conveyed by the Westboro Baptist Church, the Supreme Court concluded that Westboro generally "spoke to broader public issues."

In contrast, McBroom's statement solely consisted of a direct personal attack which was apparently motivated by pure, unadulterated racism. Further, McBroom's personal attack regarded a matter—Reynolds' alleged potential for drug use and possession—which was wholly unrelated to the issue for which Reynolds is a public figure. The evidence before the Court, construed in favor of Reynolds, establishes that Reynolds is a public figure with respect to only one issue: the use of lethal force by American police officers against African Americans. McBroom's statement did not attempt to discuss this issue in any way. Because his statement therefore did not address an issue for which Reynolds is a public figure, Reynolds was not required to plead "actual malice" in order to plead a defamation claim against McBroom….

The court's bottom-line result and much of its analysis generally seems to me to be correct; but I think whether the statement is racist is irrelevant to the analysis. Whether a statement "perpetuate[s] racist stereotypes" is irrelevant to whether it's fact or opinion: Saying "Volokh is sneaky and conniving" is opinion (because it's so general) regardless of whether it's an attempt to perpetuate stereotypes about Jews; saying "Volokh cheated me in a business transaction" is a factual assertion (a false one, I stress!) regardless of whether it's an attempt to perpetuate stereotypes about Jews. (Indeed, a more overtly racist statement, such as "Since she's black, she must be on crack cocaine," would be clearly opinion, since a reasonable reader would understand that this is purely an inference from her race, rather than a claim about the author's knowledge about Reynolds' personal behavior.)

Likewise, whether McBroom was "motivated by pure, unadulterated racism" is irrelevant to whether the statement is on a matter of public concern, or whether it's connected to the topic on which Reynolds is a limited public figure. If, for instance, he had launched an expressly racist diatribe against Reynolds as to facts connected to her comments on "the use of lethal force by American police officers against African Americans" (the subject as to which she is a limited public figure), that would be as protected—or, if the statements were knowingly or recklessly false, as unprotected—as if his criticism wasn't racist. In the words of Justice Brennan in NAACP v. Button (1963),

The course of our decisions in the First Amendment area makes plain that its protections would apply as fully to [racists and anti-Semites as to the NAACP]. For the Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered.

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  1. saying “Volokh cheated me in a business transaction” is a factual assertion (a false one, I stress!) regardless of whether it’s an attempt to perpetuate stereotypes about Jews.

    Dunno about that, but Orin Kerr owes me a beer.

    1. Wait DMN, I could have sworn that you and I both owed OK a beer. Which is it?

      1. Wait, now I’m confused. Maybe he doesn’t owe me a beer.

  2. IANAL… Could McBroom bring libel charges against the judge for claiming he is racist? Not quite sure how you prove/disprove this but if that is the hang up… then there appears to be no defense from being maliciously called a racist.

    With that said… it does appear that he should lose this case. But being guilty in one case does not prevent one from being the victim in another.

    1. An assertion that someone is racist generally isn’t actionable (as defamation) – for the reason you suggest, it’s more an opinion than a provable fact.

      He targets Asians for arrests – might be actionable, though might be difficult to prove.

      He’s racist against Asians – probably isn’t.

    2. Could McBroom bring libel charges against the judge for claiming he is racist?

      1) Libel is civil, not criminal, so one does not “bring charges” for it.
      2) The claim was that his statement was racist, not that he was.
      3) It is indeed opinion rather than a provable claim.
      4) There is absolute immunity for statements in court papers.

      1. 5) Truth is a defense.

      2. To pick a nit, 14 states still have criminal libel laws (including Minnesota). And according to Professor Volokh’s article on the subject, prosecutions continue in most of them. So, it’s still possible to “bring charges” for libel in certain circumstances.

  3. I would think the perception that Mr. McBroom’s comments were racist would cut in his favor when it comes to whether they’re actionable. If we think he’s being racist, his “History” response might be interpreted by many to mean something like – that’s what happens when black people get a lot of money. That would seem less actionable (as defamation) than the suggestion that Ms. Reynolds uses crack. I would think that one of the arguments Mr. McBroom might make is – hey, I’m a racist not a libeler.

    That said, Mr. McBroom was only demoted by the Sheriff’s office? It seems to me he should have been fired. His comments demonstrate, to me, that he’s unfit to wield law enforcement authority over anyone.

  4. Why are the comments about crack the only ones at issue? If she is on state & county assistance, then that info should not have been released by the cop/mayor. If she is not on assistance, then the implication that she is carries a social stigma similar to the drug dependency implications.

    1. I thought the same thing — and as this (likely) involves Federal money, there are Federal regs being violated here.

      Also isn’t it a conflict of interest to be both mayor and deputy at the same time?

      1. He was a mayor in one town and a deputy in a different one, so not technically, no.

    2. Related: Since you apparently read far enough to see the specific claim of crack abuse was the issue, why didn’t you keep reading the part where he explains why?

  5. Truth is an absolute defense….hope the plaintiff didn’t actually spend the entire settlement on crack and dope….

    1. Jimmy,
      True, but so what? I hope that if you get a windfall, you don’t spend that money on child molestation therapy (for abusers, not for victims), on crack, dope, alcohol dependency treatment, or on dues owed to the KKK.

      See? It’s easy to make a legally-neutral statement and be a complete dick at the same time. The fact that a clever wordsmith can craft statements that make false and horrific suggestions and that also receive complete First Amendment protections does not mean that we, as the public, should not decry these examples when we see them.

      1. If only the public had the shared common morality to denounce all things that are ugly. Would put the entirety of the left wing media out of business.

        1. Agreed. Why can’t the left wing media follow the gentle and gentile examples of Rush Limbaugh, Sean Hannity, Laura Ingraham, Ann Coulter, Glenn Beck, et al? Why must it always be the liberals who are accusing people of batshit crazy and evil stuff like running child sex out of pizza parlors? Or whoring their integrity by accusing poor Donald Trump of being foreign-born and therefore ineligible to serve as president?

          Bad bad liberals!!!

          1. That is some grade A deflection ignoring oh 50 years of reality. But, hey, yeah, Glenn Beck, he is literally Hitler right?

    2. Truth may be a defense. but it’s gotta be proven, and by a cop sworn to prevent her from doing so?

  6. What a delightful report. Of course any rendering of Sheriff Lardbottom or government assassin Yanez is good news, the events are a lot like NYT news a week before the Harrison Act was up for a vote. The New York Times concocted fantasies about the bulletproof “cocaine negroes” that would surely kill First Responders™ and climb skyscrapers clutching blonde females. To this day I wonder how many senseless murders, bank failures and imprisonments have resulted from that paper’s pseudoscientific documendacities.

    1. Ahh, thank you Mr. Phillips for the meme “documendacity” to bookend infotainment.

  7. “Volokh cheated me in a business transaction” is a factual assertion

    Certainly, but “In the next six months Volokh will cheat me in a business transaction” cannot possibly be.

    1. Yes, it can. It is a prediction about a future state of facts, and a jury could find that the statement implies certain present facts about Eugene that would support such a prediction, e.g., that he is (not will be) a cheat and that he is a Jew, who shares in what the defendant believes to be true facts about the business ethics of Jews..

      1. I doubt that this sort of prediction could be actionable defamation. “Minnesota law … does not recognize defamation claims based on opinion and prediction,” and neither does libel law in other states more generally. Now one can imagine a situation where a prediction carries within it a sufficiently strong factual implication that would be actionable, e.g., “From what I saw on the surveillance video in the jewelry store, I predict that Volokh will soon be selling some stolen property.” But merely “In the next six months Volokh will cheat me in a business transaction” would likely be perceived as a pure statement of opinion.

        1. Sorry, hit enter too quickly: Meant to add that “It’ll be gone in six months on crack cocaine” is an example of something that facially appears to be a prediction, but that does carry with it a strong factual implication that the person is currently a crack cocaine user. But the prediction that Volokh will cheat you simply implies (on its own) that I’m a generally dishonest person, which is too vague to be an actionable factual assertion.

      2. Making predictions is hard, especially about the future.
        Common interpretation of such a statement about the Professor, or about disposition of settlement proceeds, is speculative, and as such plainly obviously so to the ordinary reader.

        1. “Making predictions is hard, especially about the future.”

          Sorry, pet peeve here: making predictions (even about the future, as most of them are :-)), is falling off a log easy.

          The correct quote is “Making *accurate* predictions is hard, especially about the future.”

          Apologies; it’s one of my favorite quotes, and too often rendered incorrectly.

          (as an aside, this Volokh fellow sure does seem to be involved in a lot of shady stuff)

          1. Predictions; if they were easy then everyone might do it.

            Read N. N. Taleb on prognosticators, doxastic comittment and Damocles’ Sword of Truth.

            Prognosticators with no skin-in-the-game, no doxastic comittment, have no reason to be truthful.

    2. One can distinguish such a predictive opinion from a statement like ‘It’ll be gone in 6 months on crack cocaine’ which could be seen as a statement about someone’s current addict status.

      1. One can, and I do. I would have liked to see the court distinguish them more clearlt too.

        The court broke it down like this:
        1.The statement specifically accuses Plaintiff of use and possession of crack cocaine.
        2. The statement nonetheless explicitly and specifically alleges that Reynolds will commit a crime.
        3. Implicit in McBroom’s statement is an allegation that Reynolds has a history of using crack cocaine.

        1 is simply wrong, the statement “explicitly and specifically” predicts only future use and possession of cocaine. That in and of itself is not actionable.
        2 is also a prediction and also, in and of itself, not actionable.
        3, the implication, is actionable to the extent that it implies the existence of undisclosed facts. Here I disagree with the court’s discounting the word “History”, when viewed in context it can reasonably be understood as referring specifically to the plaintiff’s history and so supports the argument for #3.

        1. So the takeaway here is not to be so specific in our predictions about people, and when questioned on it, don’t double down and suggest the prediction is based on undisclosed facts.

          Stick with “it’ll be gone soon enough” and let other people fill in where exactly it’ll go, instead of specifying exactly which illegal drug it’ll go towards.

  8. I had almost the opposite take as Prof. Volokh. It seemed to me that the judge decided it was actionable based precisely on the horrific racism. It’s a specific example of a general theory: “Judges are human too, and sometimes it shows”.

  9. ” It’ll be gone in 6 months on crack cocaine.” Libel? Prof. Volokh , how can you be serious? It’s an insult, not a libel. Nobody takes this literally. It’s a prediction, so it’s not false at the time it is made; it’s opinion; but mainly, it’s just rhetoric. You can’t look at it and say, “She spent it on meth, not crack, so it’s false,” if that were to occur. (Please don’t accuse me of libel for suggesting the possibility.

    I’m really shocked. If you treat this as libel, you’d better go after all the people who made false predictions about what Trump would do after six months in office.

    1. Similar (hypothetical and apparently harmless) prediction: The most repulsive instructor at Indiana University Bloomington will and should be fired within the next year for conduct and character incompatible with a legitimate university — misogyny, racism, gay-bashing clingery, low-grade superstition.

    2. “Prof. Volokh , how can you be serious? It’s an insult, not a libel”

      You must have missed the part where defendant doubled down, and claimed undisclosed facts informed his opinion. This is libel.

  10. Hmm …

    I don’t know much about libel law. And I certainly hope everyone can agree that the statement was disgusting and wrong. However, I am not sure about the statement being actionable.

    Suppose I owe a debt to an asshole, and when I pay it back, I say, take your stupid money, I’m sure you will waste it on drugs anyhow. Am I making a statement of fact? Maybe not, what I might mean by that is, you have the qualities of a junkie, you are an asshole, and you cannot manage your money. All of which are opinions.

    I am making an insult … I am not actually saying a fact that you will spend the money on drugs.

    For a more obvious example, your momma so fat is not an actionable statement, because I’m not actually saying your mom is fat I am providing the subtext of an insult. And insults, no matter how awful, are not actionable.

    The notion of limited purposes public figure has always struck me as being somewhat out of place in a world with social media and the internet. So I don’t know about that.

    So Prof., what exactly is the basis to say that by which to say that the facts in the tweet are meant as facts, an not an opinion when subtext is taken into account?

    1. “However, I am not sure about the statement being actionable. ”

      Accusing someone of committing a crime is textbook defamation per se. This isn’t a close call.

  11. It seems weird to me that defamation can go forward on this because the statement doesn’t appear to be literal. If I heard someone say “It’ll be gone in 6 months on crack cocaine.”, what I would assume the speaker was trying to get across was not that the target was a literal crackhead, but that they are of low moral character and will waste it all on frivolous and yes possibly also illegal things.

    Maybe I’m missing the setting in which this was said, because off the cuff remark would give different implications than if this was say, put down in a written report.

    1. Figured out a better way to say what I mean. The statement seems to more be an insult than the speaker trying to make a statement of fact about the target. It seems like suing someone for calling you a poopy head because you don’t literally have feces in/on your head.

    2. If I heard someone say “It’ll be gone in 6 months on crack cocaine.”, what I would assume the speaker was trying to get across was not that the target was a literal crackhead, but that they are of low moral character and will waste it all on frivolous and yes possibly also illegal things.

      If I heard someone say “It’ll be gone in 6 months on crack cocaine,” what I would assume the speaker was trying to get across was that the target was a literal crackhead.

      1. Sounds like a good reason for the judge to let the claim proceed and let the jury decide what the objective understanding would be.

        1. Also, it will depend on the actual nature of her situation WRT drugs. If she can truthfully say that she does not use drugs, especially crack, the statement is a lot more damaging. If, however, she says that it will take at least 12 months to go through the whole $800,000, or that she will use it to buy meth, not crack, then not so much on the injury/damages front.

    3. I think that’s why the fact that he was a police officer is such an important part of this case. It’s not some random guy making a random insult.

      It’s someone with authority, who would know if she had been arrested for drugs, saying that she does drugs. That makes a big difference.

  12. I wonder about the Judges opinion of Ms Reynolds being a limited public figure, “involuntarily” drawn into this situation.

    She took it on herself to record and live tweet the events resulting in 2,000,000 views, she decided to sue for damages, she further decided to sue for libel and has apparently settled although news reports say the defamation, not libel.

    Seems to me that she “thrust” herself into this on several levels. That leads to speculation whether the Judge was biased in her favor.

    1. “She took it on herself to record and live tweet the events resulting in 2,000,000 views, she decided to sue for damages, she further decided to sue for libel and has apparently settled although news reports say the defamation, not libel. ”

      Libel IS defamation.
      Come up with something that shows she decided to have herself and her minor child shot at, and your theory might have some validity. Suing for damages doesn’t prove you’re a public figure, unless you sought out the situation that caused you to have damages.

  13. Current headline: Libel Case Flowing from the Philando Castile Shooting Can Go Forward

    Accurate headline: Libel Case Flowing From the Philando Castile Shooting Can No Longer Go Forward

    1. Ummm. No. In fact, the ruling in her favor is almost certainly the reason that he decided to settle.

      1. Is that the ‘eat your cake and have it too’ theory of claim prosecution?

        1. Well. No. His motion to dismiss was denied and mere days later, he comes forth with a settlement? A settlement isn’t a win for him. It’s a concession. He gave a public apology and probably gave her some money. She accepted rather than have a trial, with the associated costs and risks, so she won.

          This is really basic stuff here. Now you are just pretending that it’s a loss because you want to seem horrified. I’ve read your writing, and I know that you know this. What’s wrong with you Kirkland?

          1. I did not and would not characterize the settlement as a loss or a victory for any participant; I am not aware of the terms (beyond a reported apology). I have observed that the headline — “can go forward” — is wrong, because the settlement prevents the case from going forward. The litigation has ended, save perhaps for filing of a praecipe or a similar notice of resolution.

  14. I disagree with this opinion on one point. The “History” reply is extremely relevant. It implies, indeed, practically states outright, that he had special information that indicates that the plaintiff uses crack cocaine. It should not have been discarded.

    This is as important a reply as if someone had asked “are you joking”, and he replied “No, I am serious”.

    As Volokh said, if he had launched into a racist or classist diatribe or a discussion about windfall wealth (which, to be frank, is a sad discussion for most people), he would have been fine from a libel perspective, as it would be mere opinion or prediction. However, this indicates that he has actual knowledge. It confirms that this is a personal prediction that appears to be from a verified source.

    1. It could be based on a general experience that people who get large settlements often blow through them quickly.

      1. “It could be based on a general experience that people who get large settlements often blow through them quickly”

        If they often blow through them by buying lots of crack cocaine, it might.

  15. “The statement specifically accuses Plaintiff of use and possession of crack cocaine.”

    No, that’s sloppy logic. The statement specifically accuses Plaintiff of PAYING FOR crack cocaine (and in the future).

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