The Volokh Conspiracy
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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."
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.
