Free Speech

Tweeting That Someone Is Xenophobic Is Nonlibelous Opinion

An interesting decision in former AP journalist Charles Ganske's lawsuit against former Member of Parliament Louise Mensch, with allegations of Russian bots and Tweeting frenzies thrown in for good measure.

|The Volokh Conspiracy |

From Ganske v. Mensch, decided today by Judge Ronnie Abrams (S.D.N.Y.):

If the Internet is akin to the Wild West, as many have suggested, Twitter is, perhaps, the shooting gallery, where verbal gunslingers engage in prolonged hyperbolic crossfire. It is in this context of battle by tweet that the conduct at issue in this defamation case was born.

Plaintiff Charles Ganske, a journalist, alleges that Defendant Louise Daphne Mensch, a blogger and former member of Britain's Parliament, defamed him and interfered with his employment as a result of a tweet that she posted on July 27, 2018 at 12:32 a.m. (the "Tweet"). Plaintiff alleges that Defendant's single Tweet, which "interjected" herself into an ongoing conversation between Plaintiff and a third party, who called himself @Conspirator0, contained numerous defamatory statements…. Because the Court concludes that the allegedly defamatory statements in Defendant's Tweet are nonactionable statements of opinion, [Mensch's motion to dismiss] is granted….

Plaintiff is a 37-year old journalist. From 2005 to 2007, "[a]s part of his job, he edited a website, www.russiablog.org, wrote press releases, authored op-eds, and assisted in drafting fundraiser letters and grant applications." After a hiatus from journalism, Plaintiff returned in March 2011 to work "as [the] Central Region Broadcast News Editor for the Associated Press ('AP') in Chicago, Illinois." From 2016 to 2018, still at the AP, Plaintiff served as the "National Sports Broadcast Editor" and the "Social Media/UGC specialist in Chicago."…

Defendant Mensch is a former member of Britain's Parliament and editor of Heat Street, "a 'news' site." Defendant is now "a full-time blogger" and "maintains and operates multiple Twitter accounts, including @LouiseBagshawe (suspended), @LouiseMensch, and @patribotics." Plaintiff asserts that "Mensch was one of the propagandists who, for over two years, heavily promoted the now completely debunked Russia collusion hoax" and that she "trolls Twitter and claims to expose 'Russian' influence on and off the platform." …

On July 27, 2018, "Mensch came across the conversation (thread) between Ganske and @Conspirator0, and interjected herself." This litigation stems from Defendant's Tweet at 12:32 a.m. that day, sent from her @patribotics account:

Plaintiff alleges that this Tweet contains "false and defamatory statements about [him]" because neither he nor his tweets were "xenophobic"; he "never spread Russian bots on any website"; "Russiablog.org was never [his] 'own' website"; and he "had no 'vendetta' or 'obsession' with anyone." Plaintiff further claims that Defendant "deliberately tagged [Plaintiff's] employer, '@AP,' and published the tweet to '@APCentral' in order to interfere with and prejudice Plaintiff in his employment and get Plaintiff fired."

Prior to posting that Tweet, Defendant tweeted two times prior that morning in connection with the same exchange. First, at 12:17 a.m., Defendant tweeted:

After seeing Defendant's Tweet, "Ganske notified the AP that he was being subjected to targeted harassment by Mensch." In response, "AP's Social Media director, Eric Carvin, did not suggest to Ganske that he had done anything on Twitter to violate the AP's Social Media Policy." Nonetheless, on August 10, 2018, Ganske's employment was terminated, purportedly "because of Mensch's tweets." …

To assist with distinguishing between a statement of fact and opinion, New York courts look to three factors:

(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.

The Court's analysis here thus focuses on whether the Tweet included "a provable statement of fact," which — unlike a "statement[] of opinion" or a "[l]oose, figurative or hyperbolic statement[]" — can be "actionable as defamation."

[A.] First Statement: Plaintiff's Tweet Was "Xenophobic"

Although Plaintiff does not specifically address this issue, the Court first considers whether the statement that Plaintiff's tweet was "xenophobic" is one of fact or opinion.

In this instance, it is important to first account for the context in which this allegedly defamatory statement was made as this can "signal[] to the reader that what is being conveyed is likely to be opinion rather than fact." Here, the context is Twitter, an Internet forum. "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact."

In analyzing the unique context of statements made on Internet fora, courts have emphasized the generally informal and unedited nature of these communications. This context, as some courts have concluded, leads "readers [to] give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts." Like the other Internet fora discussed in the above-cited cases, Twitter's forum is equally — if not more

— informal and "freewheeling." As such, the fact that Defendant's allegedly defamatory statement that Plaintiff's tweet was "xenophobic," appeared on Twitter conveys a strong signal to a reasonable reader that this was Defendant's opinion.

In addition to context, the Court must also consider the other factors: whether Defendant's comment that Plaintiff's tweet was "xenophobic" lacks "a precise meaning which is readily understood" or is "capable of being proven true or false." Although the term "xenophobic" does have a fairly clear meaning in the context of the Tweet, it is not capable of being proven true or false. It is, rather, classic opinion that amounts to an "epithet[], fiery rhetoric, [and] hyperbole," which "signal[s] advocacy" and a partisan viewpoint. Defendant's comment, moreover, was a direct response to Plaintiff's earlier tweet, which referred to @Consiprator0 as "Senor Norteno" and insisted that "all of the work [for Russia Blog] was funded by Americans in the United States of America." Plaintiff's use of the word "Senor" and heavy emphasis on America and Americans further supports the conclusion that Defendant's statement that Plaintiff's tweet was "xenophobic" was a reaction to — and personal opinion about — Plaintiff's own words.

Furthermore, the term "xenophobic" is, at a minimum, analogous to — if not, more "fiery rhetoric" than — other words that courts in this district have found to constitute "'rhetorical hyperbole' and 'imaginative expression' that is typically understood as a statement of opinion." See Small Bus. Bodyguard Inc. v. House of Moxie, Inc., 230 F. Supp. 3d 290, 312 (S.D.N.Y. 2017) (concluding that stating that the plaintiff "engaged in 'extortion, manipulation, fraud, and deceit'" is a "a vague statement … of the 'loose, figurative, or hyperbolic' sort that is not actionable for defamation"); Biro, 883 F. Supp. 2d at 463 (holding that "the use of the terms 'shyster,' 'con man,' and finding an 'easy mark' is the type of rhetorical hyperbole and 'imaginative expression' that is typically understood as a statement of opinion"); Egiazaryan, 880 F. Supp. 2d at 507 (finding the reference to the plaintiff as "anti-Semitic and anti-American" in a "hyperbole-laden opinion piece" not to be actionable); Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 284 (1974) ("The … use of words like 'traitor' cannot be construed as representations of fact."); Chau, 771 F.3d at 129 ("[T]he epithets … 'sucker,' 'fool,' 'frontman,' 'industrial waste,' … and 'crooks or morons' … are hyperbole and therefore not actionable opinion."). A reasonable reader would likely view Defendant's reference to Plaintiff's tweet as "xenophobic" to be her opinion and not conveying any objective facts about Plaintiff….

[B.] Second Statement: Plaintiff "Spread Russian Bots"

… Unlike an allegation that a statement is racist or xenophobic, a statement about whether someone personally spread Russian bots is capable of being proven true or false. Nonetheless, a statement of opinion "may yet be actionable if [it] impl[ies] that the speaker's opinion is based on the speaker's knowledge of facts that are not disclosed to the reader."  However, "if a statement of opinion … discloses the facts on which it is based …, the opinion is not actionable."

Defendant's Tweet provided her factual basis for stating that Plaintiff "clearly personally spread Russian bots on [his] own site" by referring directly to "@Conspirator0['s] work," which documented alleged bot activity on Russia Blog — the site for which Plaintiff formerly worked. Indeed, only about twenty minutes before posting the Tweet, Defendant tweeted about @Conspirator0's work, stating that "@[C]onspirator0 has offered his work for peer review" and "[d]ata scientists who review it, accept him as their peer." With her tweet, she shared @Conspirator0's tweet, which described his findings that while Russia Blog "is now gone, … 206 Twitter accounts with links to it live on. Of these, 45 (23%) appear to be automated based on either 24/7 activity or posting 90+% of their tweets via automation services." Ten minutes after that, at 12:27 a.m., Defendant posted her next tweet, which again referred to @Conspirator0's data. Defendant even included a hyperlink to @Conspirator0's data on the alleged bot activity on Russian Blog. As such, in asserting that Plaintiff had "clearly personally spread Russian bots" on Russia Blog, Defendant conveyed to the reader the factual basis — here, @Conspirator0's data on bot activity on Russia Blog — on which her opinion rested.

The inclusion of the hyperlink is particularly significant. Several courts have determined that the inclusion of a hyperlink to a report or article in a communication shared on an Internet forum is a sufficient means of disclosing a factual basis on which an opinion rests. As Judge Oetken explained in Adelson v. Harris, "the hyperlink connects one to the source of the [person's] claims." The hyperlink, Judge Oetken further noted, has become "the twenty-first century equivalent of the footnote for the purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source." …

Defendant both referenced and hyperlinked to the data on which her opinion that Plaintiff "clearly personally spread Russian bots on [his] own site" was grounded. Accordingly, this statement is also not actionable.

[C.] Third Statement: "@Conspirator0['s] Work … Has Sent [Plaintiff] Into a Frenzy"

The Court similarly rejects Plaintiff's claim of defamation with regard to the third portion of Defendant's Tweet — that "@Conspirator0['s] work on [the issue of bot activity on Russia Blog] has sent [Plaintiff] into a frenzy of tweeting and trying to discredit him." For the reasons noted above, this statement is a clear-cut one of opinion, posted on Twitter and, notably, "interjected" into "the conversation (thread) between Ganske and @Conspirator0."

It is difficult to conjure a "precise meaning" for the statement that Plaintiff was "sent … into a frenzy of tweeting." Indeed, Twitter limits a user's tweet to 140 characters, which thus encourages users to post multiple times in a short period. It is common, therefore, for a user to post many times in a row. Moreover, even if this statement could be construed as one of fact with a precise meaning, Plaintiff has not alleged how this statement is defamatory in nature.

Because all three of the allegedly defamatory statements in Defendant's Tweet are nonactionable statements of opinion, Plaintiff's defamation claim is dismissed as a matter of law.

Seems right to me.

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  1. It appears Mensch was not being a mensch.

  2. Too bad there are no New York Times v. Sullivan type defenses for private citizens who are sued by so-called journalists.

    1. Tall Paul: What do you mean? The New York Times v. Sullivan rules apply if the plaintiff is a public official, a general purpose public figure, or a limited purpose public figure. That applies equally, whether or not the plaintiff is a journalist. Indeed, if a journalist has deliberately injected himself into a public controversy (say, by writing extensively about it), and is then criticized for something related to that controversy, then the journal is a limited purpose public figure, and the NYT v. Sullivan rules do apply. Or am I misunderstanding your point?

      1. Professor Volokh: You are, as usual, correct. I was thinking of the original NYT v. Sullivan decision and neglected to consider the fact that its scope has been vastly expanded in subsequent decisions. I never agreed with the original decision and all I was trying to say in my comment is that it is just a shame that ordinary people when sued by a journalist don’t have the right to answer a complaint by saying, in effect, so what if I was negligent in falsely defaming you, I can’t be held liable for any damages unless you can somehow bear your heavy burden of proving so-called “malice.”

        1. ? You have it backwards. NYT v. Sullivan and its progeny protect people sued by famous people for defamation, not famous people who are sued for defamation. Ordinary people have the same protections when they’re sued for defamation as famous people do.

  3. Another sewer resident surprised to find the sewer is full of sewage. I bet he’d be even more surprised to find some of it is his!

    1. It’s “her.” Ronnie Abrams is a woman. I tried a case before her.

      1. I don’t know why this is here. It should have gone under Life of Brian’s comment.

  4. Seems right to me.

    Even the part where Judge Abrams thinks that “Twitter limits a user’s tweet to 140 characters”?

    1. Even the part where Judge Abrams thinks that “Twitter limits a user’s tweet to 140 characters”?

      Got him — good job. Now how about the indisputably true point of the sentence: “Indeed, Twitter limits a user’s tweet . . . which thus encourages users to post multiple times in a short period.”

  5. This is only slightly related: when a media personality says “He’s a bigot and a racist. That’s not an opinion; that’s a fact”, does that affect whether that statement is libelous?

  6. Nothing surprising here, but it’s always good to read through another application of the law, particularly the opinion based on undisclosed facts analysis.

    The internet is an odd place, mixed with people you would never want to interact with, but also people like Professor Volokh who give you an incredible amount of timely and practically useful information, presented in a concise manner completely for free.

  7. I am the plaintiff and I respectfully disagree with the SDNY judge’s decision on both the facts and the law.

    I used Twitter in 2017 and 2018 to do my job as a journalist tactfully and professionally requesting permission on behalf of the AP to obtain and republish user generated content (UGC). I do not believe that limited professional presence on Twitter alone is or was sufficient grounds to view me as a limited purpose public figure for judicial review. But even if I were considered such, Mensch clearly acted with malice.

    Contrary to the headline of Prof. Volokh’s post, ‘xenophobia’ was not the core false allegation made against me by Mensch, but secondary to it. The ‘sting’ of her defamatory tweets to my then employer spread in our present toxic political climate was that I willfully spread automated posts aka ‘bots’ on behalf of a nuclear armed foreign power, years before joining the AP in March 2011. I swore under penalty of perjury to the court that allegation is false and that I never spread bots on any websites, making the tacit acceptance of how it would be technically possible for Twitter bots to have been ‘on’ RussiaBlog.org (in the wording of the judge’s decision) puzzling.

    There is no relationship between the supposedly automated posting anonymous Twitter user / crackpot @Conspirator0 presented and my editing of RussiaBlog.org from 2005 to 2009. Holding any editor responsible for every single random Twitter user they do even not know of linking to the site they happen to edit is patently absurd. Furthermore, I ceased editing the site in July 2009, yet it isn’t even clear that the data set cited by Mensch which her counsel laughably claimed ‘no one’ disputes (I dispute it, that’s the whole point of this litigation — I think it could very well have been made up by @Conspirator0 and Mensch made zero effort to fact check her source) cuts off in mid-2009 or continued until the blog was taken down by Discovery Institute sometime in late 2013 or early 2014 (you would have to ask them why they deleted the site, to this day I don’t fully know). Incidentally the Russia Blog was never mine — if it had been I would’ve saved the archives that contained hundreds of posts edited or written by me — but belonged to a foreign policy program funded by one retired mutual fund magnate well known in Tacoma and a cedar homes executive. I don’t mention their names or their fellow East West board members including in Texas I personally wrote fundraising letters to because I dislike breaking the taboo on donor privacy and don’t want these elderly gentlemen harassed simply for funding a foreign policy program. But any journalist can easily figure out who they are/were. Sorry Mensch and Patrick Simpson fans, the Seattle-based foreign policy program never received a single kopek from the Kremlin or any Russian corporation or oligarch during my time as RussiaBlog.org’s co founding editor. Sorry conspiracy theorists and partisans, but based on my front row seat that included corresponding with some prominent investment bankers and reading Merrill Lynch Moscow research as a young broker, the ‘Reset’ in relations happened because numerous Fortune 500 corporations including household Seattle-Tacoma based names like Microsoft and Boeing had operations in Russia and Wall Street didn’t want to miss out on a booming market.

    The defendant Louise Mensch’s reputation for dishonesty in her community of New York and on Twitter is well deserved. She abandoned all standards of fact checking as a self-proclaimed publisher in tweeting to my employer and did so with malice. The standard of tortious interference is set too high in the decision to the point of requiring a signed confession from a defendant to meet. Regarding the last paragraphs of the decision, the fact of my unionized (not at will in State of NY) employment and membership in the News Media Guild (NMG / CWA) was easily verifiable via Google search (see top ten Google search results for ‘Charles Ganske’ and ‘AP’):

    https://www.google.com/search?q=charles+ganske+ap&rlz=1C1SQJL_enUS813US813&oq=charles+ganske+ap&aqs=chrome..69i57.3667j0j7&sourceid=chrome&ie=UTF-8

    Naturally the anonymous trolls Mensch cited and subsequently denounced @Conspirator0 @ZellaQuixote chose to lie by omission and ignore such search readily available results. Sometime after filing her motion to dismiss in late 2019 Mensch deleted numerous tweets denouncing the anonymous troll @Conspirator0 as a fraud, not a data scientist, and a petty criminal. Whether such deleted tweets would have changed the decision, I do not know but would like to find out.

  8. Last comment on this thread — I paid for the lawsuit to defend my own good name.

    Again, this started because a group of anonymous trolls hated that an AP journalist was expressing even polite, mild skepticism of their ‘counter disinformation’ grift. Mensch targeted me @ tweeting to my then employer — without me having any prior contact with her whatsoever. Mensch then hypocritically denounced the same anonymous grifter she relied upon as the ludicrous ‘factual’ basis for her actionable statements. Mensch then deceived the court by deleting tweets that demonstrated her deceptive state of mind. But we have screen shots of them all.

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