The Volokh Conspiracy

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Libel by WiFi Network Name

City councilman names his WiFi network "[Name of mayor and her husband] stocking u2"; could be libelous, holds the Idaho Supreme Court by a 3-2 vote.


From Irish v. Hall, decided Thursday by the Idaho Supreme Court:

At the time of trial, Wanda Irish had been the mayor of Harrison since 2010. Dennis Irish is her husband. Jeffrey and Dona Hall are the owners of the Gateway Marina in Harrison, and Jeffrey Hall also serves as a member of City Council. This is a defamation case involving a series of statements made by the Halls about the Irishes. At issue is the Halls' changing of their home wireless internet designation to read, "[D]ennis & [W]anda Irish stocking u2."

The tension between the parties has been going on for several years, with most of the disputes centering on Wanda Irish's role as mayor, and the Halls' ownership of the Gateway Marina, with conflict arising over an easement the city has near the marina. The dispute underlying the present case began in May 2012, after the Halls' boat and trailer were towed off of the public easement. Upon discovering his boat had been towed, Jeffrey Hall called Wanda Irish eight times within one hour calling her vulgar names and accusing her of having his boat towed, which Wanda Irish denied doing. Following this incident, Jeffrey Hall placed posters in his vehicle that read, "MAYOR IRISH LIED!!!" and "MAYOR IRISH LIES!!!" Later that year, the Halls found several cameras around town and in the campground near the marina, which were later revealed to belong to Dennis Irish. The Irishes stated the cameras were for security, due to recent graffiti that had been occurring around the city.

In 2013, the Halls reported to the Kootenai County Sheriff's Office that Dennis Irish was stalking Dona Hall. The alleged incident of stalking occurred when Dennis Irish and his business partner drove past Dona Hall when she was standing near the side of a public road. Dennis was subsequently cited for stalking; however, the prosecutor dismissed the stalking charges.

Tensions continued to escalate between the parties, and in 2015, Jeffrey Hall confronted Wanda Irish at her place of employment and accused her of holding secret meetings. Jeffrey Hall also accused Wanda Irish of favoring family members on social media. Following these events, in July 2015, Jeffrey Hall changed the Gateway Marina's wireless internet designation to read, "Mayor Wanda Irish Terrorist." Wanda Irish saw the wireless name on her cell phone, and the Irishes' attorney subsequently sent a cease and desist letter to the Halls. The Halls responded by changing the Gateway Marina's wireless designation to, "she really is a [t]errorist." The Halls then changed their home wireless internet designation to read, "[D]ennis and [W]anda Irish stocking u2." …

The Irishes sued for libel, and the 3-Justice majority concluded that their case should go to the jury, because a reasonable person could it interpret it as involving factual allegations (of stalking rather than "stocking") and not just opinion or hyperbole. Because "the Halls had previously accused Dennis Irish of stalking Dona Hall, a crime for which Dennis Irish was cited, though the case was later dismissed," "the statement that the Irishes were 'stalking' people could be proved false, and thus was more than mere opinion."

A two-Justice dissenting opinion had, I think, the better of the argument:

I agree with the Court's conclusion that the phrase "dennis & wanda irish stocking" could reasonably be interpreted as an assertion that the Irishes had engaged or were engaging in stalking, which is criminal conduct and could give rise to a claim of defamation per se. However, in my view, the inclusion of "u2" transforms the meaning of the purported assertion to effectively transmit to any reader the message that "Dennis and Wanda Irish are stalking you too."

No viewer of the Halls' home wireless designation could reasonably interpret the assertion that "Dennis and Wanda Irish are stalking you too" as a statement of fact. To do so would require the reader to accept that the message that he or she was the object of criminal activity by the Irishes was intended for him or her alone.

Instead, any reasonable reader of the message would understand that this was a statement broadcast to every person who happened to randomly view the Halls' wireless designation and, in the words of the United States Supreme Court [in Greenbelt Co-op. Pub. Ass'n v. Bresler (1970)], "it is simply impossible to believe" that anyone could accept as factual the assertion that the Irishes were stalking everyone who might happen to view their home wireless designation…. [In Bresler, the Court stated:]

"It is simply impossible to believe that a reader who reached the word 'blackmail' in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime."

Likewise, I view the Halls' labeling of their wireless designation as "no more than rhetorical hyperbole."

The majority's response to the Greenbelt case was that "the statement was not addressing Mayor Irish's official duties or any official action or comment by the Mayor in fulfillment of her duties," and that it "was also directed at Dennis Irish, who is not a public official"; but that, I think, is irrelevant—hyperbole is protected against libel claims because in context it's recognized as not making a factual defamatory claim, rather than because it's focused on "official" behavior. (Indeed, in Bresler itself, the plaintiff was a private developer, not a government official.)

The majority also argues that,

Unlike in Bresler, where no reader would have thought the article was accusing the plaintiff of committing a crime, here, a reader of the wireless designation may think the author was accusing Dennis and Wanda Irish of committing the crime of stalking the public in general in addition to stalking the Halls. In fact, Dennis Irish had previously been accused of stalking Dona Hall, and criminal charges had been filed and dismissed. Thus, it is reasonable that a juror may think the statement is alleging that the Irishes are stalking someone.

And this at least responds to the legal argument that obvious hyperbole isn't a false factual allegation—but the response strikes me as implausible on the facts of this case, for the reasons the dissent gives.