The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Cop's Libel Claim Over Amazon-Distributed Free Meek Documentary Can Go Forward

Officer Saqueta Williams had been on the DA's "Do Not Call [to Testify] List" because of alleged assault during an off-duty incident (as to which she was later acquitted)—she alleges the documentary falsely implied that she was on the list because she was "dirty and dishonest."


From today's decision in Williams v. ROC Nation, LLC, by Judge Eduardo C. Robreno (E.D. Pa.):

Plaintiff's claims arise from Free Meek, a five-part documentary series created, produced, and published by Defendants. The 2019 series explores rapper Meek Mill's experience with the Philadelphia criminal justice system. During the fourth episode, entitled Filthadelphia, investigative reporter Paul Solotaroff discusses the Philadelphia District Attorney's "Do Not Call List," which identifies police officers with histories of arrests, disciplinary actions, or providing false testimony. According to the Complaint, the District Attorney directed prosecutors not to call some of the officers on the list as witnesses in criminal prosecutions.

Solotaroff states: "Now there is a new District Attorney in town, and just the last couple of months we have been learning from the District Attorney's Office about a list of dirty and dishonest cops." Attorney Bradley Bridge, a well-known attorney for the Defender Association of Philadelphia, also provides commentary on the "Do Not Call List," stating, "The DA's Office generated a specific list that has 66 names of police officers on it. There have been findings by the police department that the officers have lied to internal affairs, to other police officers, or in court."

During Bridge's commentary, an image of Plaintiff is briefly displayed on the screen. Plaintiff, who served as a Philadelphia police officer from 2010 until 2017, appeared on the "Do Not Call List" because she had previously been arrested and charged with assault, possession of an instrument of crime, and recklessly endangering another person after drawing her firearm during an off-duty confrontation. In February 2019, a jury acquitted Plaintiff of all charges stemming from the off-duty incident. According to Plaintiff, neither the Philadelphia Police Department nor the Office of the Philadelphia District Attorney ever found that she "lied to internal affairs, to other police officers, or in court."

Plaintiff alleges that juxtaposing her image with Bridge's comments and with photographs of officers placed on the "Do Not Call List" as a result of their dishonest conduct communicates the false implication that she is a "dirty, corrupt, immoral, and dishonest" police officer who lied to internal affairs, to other officers, and/or in court. Her claims in the instant action arise from this display of her image….

Plaintiff's defamation claim relies on a theory of defamation by implication. Pennsylvania law permits such a theory where "the words utilized themselves are not defamatory in nature" but "the context in which the[] statements are issued creates a defamatory implication."

Taken as true, the facts alleged in Plaintiff's Complaint state a claim for defamation. Plaintiff plausibly alleges the juxtaposition of her image with Bridge's statement that "[t]here have been findings by the police department that the officers have lied to internal affairs, to other police officers, or in court," creates an implication that tends to harm her reputation——i.e., that she was placed on the list because she is dishonest. Defendants do not dispute that they published the communication. Further, the allegedly defamatory implication results from the display of Plaintiff's photograph and therefore applies to her. Plaintiff plausibly alleges that a reasonable viewer would both understand the defamatory implication and would understand that it applies to her. Finally, she plausibly alleges injuries resulting from the alleged defamation.

In a suit involving defamation of a public official where the challenged statements relate to official conduct, a plaintiff must also establish that the defendant acted with "actual malice" in publishing the statement. It is uncontested that Plaintiff is a public official for the purposes of First Amendment analysis, and that the challenged statements concern her role as a police officer.

In an ordinary defamation case, actual malice is defined as "knowledge that [the defamatory statement] was false or … reckless disregard of whether it was false or not." However, the Third Circuit has held that the actual malice standard has an additional element in defamation-by-implication cases. Kendall v. Daily News Publ'g Co. (3d Cir. 2013). In such cases, "the alleged defamatory statement has two possible meanings, one that is defamatory and one that is not." Therefore, a plaintiff must demonstrate not only that the defendant "either knew that the defamatory meaning of their statement was false or were reckless in regard to the defamatory meaning's falsity," but also that the defendant intended to communicate the defamatory implication. To satisfy this "communicative intent" element, a plaintiff must demonstrate "that the defendant either intended to communicate the defamatory meaning or knew of the defamatory meaning and was reckless in regard to it." This inquiry is "subjective [in] nature" and "requires that there be some evidence showing, directly or circumstantially, that the defendants themselves understood the potential defamatory meaning of their statement."

Defendants … argue that the broader context of the documentary belies a finding of actual malice. Specifically, they cite the documentary's inclusion of a 6ABC television news clip in which an anchor explains that officers are placed on the "Do Not Call List" for offenses including "assault, drug dealing, mishandling evidence, [and] lying to authorities." Defendants also highlight that the documentary displays the snippet from the Inquirer article containing the actual reason Plaintiff was placed on the list.

While Defendants may pursue the argument that this context precludes a finding of actual malice before the fact finder, the argument fails at the motion-to-dismiss stage…. Plaintiff satisfies the "falsity" element by plausibly alleging that Defendants knew the defamatory implication was false because they possessed the Philadelphia Inquirer article detailing the true reason for her inclusion on the "Do Not Call List" (i.e, her arrest for an off-duty confrontation) and in fact featured that article in the documentary.

With respect to the "communicative intent" element, Plaintiff plausibly alleges that Defendants either intended to communicate the defamatory implication or knew of the defamatory implication and were reckless in regard to it. Specifically, she avers that although Defendants knew of the true reason for Plaintiff's placement on the "Do Not Call List," they chose to juxtapose her image with audio describing the officers on the list as having "lied to internal affairs, to other police officers, or in court." The snippet from the article detailing the reason for Plaintiff's inclusion on the list appears in small print and scrolls rapidly on the screen, making it virtually unreadable and undermining Defendants' argument that the article's inclusion belies a finding of actual malice. For these reasons, Plaintiff adequately pleads actual malice…..

Under Pennsylvania law, the tort of false light invasion of privacy "imposes liability on a person who publishes material that 'is not true, is highly offensive to a reasonable person, and is publicized with knowledge or in reckless disregard of its falsity.'" … Plaintiff's Complaint states a claim for false light [for the same reason that it states a claim for defamation]….