Free Speech

Calling Neighbor "Slum Lord" on Facebook Found to Be Constitutionally Protected Opinion

at least in the context of a Facebook squabble.

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From Bauer v. Brinkman, decided Monday by the Iowa Court of Appeals (in an opinion by Judge Paul Ahlers, joined by Chief Judge Thomas Bower and Judge David May):

The Kendall R. Bauer Trust owns an apartment building in Sloan, Iowa, known as the Bauer Apartments. The trustee of the trust, Richard Bauer, … manages the apartment building. K.L. … owns and operates a dog grooming and boarding business. As part of that business, she began construction on a dog care facility in a lot adjacent to the Bauer Apartments.

During the course of the construction of the dog care facility, Bauer contacted K.L. to express concerns that the outdoor "dog run" may become a nuisance issue and could be in violation of Sloan's zoning ordinance. Bauer also contacted the Sloan city council about his concerns. When his concerns were not addressed to his satisfaction, Bauer filed suit against the city, alleging the city failed to enforce its zoning ordinances.

During the pendency of Bauer's lawsuit against the city, K.L. took to airing her disgruntlement with the situation on Facebook, posting comments about Bauer, Bauer Apartments, and the dispute regarding construction of the dog care facility. K.L.'s adult daughter joined the Facebook fray, as did the defendant, Bradley Brinkman. It was Brinkman's commentary that resulted in this lawsuit, as Brinkman posted the following comment:

It is because of shit like this that I need to run for mayor! Mr. Bauer, you sir are a PIECE OF SHIT!!! Let's not sugar coat things here people, [K.L.] runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love for you to walk across the street to the east of your ooh so precious property and discuss this with me!

Bauer filed suit against Brinkman alleging Brinkman's statement that Bauer is a "slum lord" constituted libel….

Drawing the line between opinion and fact … is important because opinions are "absolutely protected under the first amendment." Because drawing this line involves important first amendment issues, its determination is one for the court rather than the fact finder…. To make this determination, courts look to four factors: (1) whether the "statement 'has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous'"; (2) the degree to which the statement is "objectively capable of proof or disproof"; (3) "the context in which the" statement occurs; and (4) "the broader social context into which" the statement fits.

We begin our analysis of the first two factors by noting that the term "slum lord" is not defined in Brinkman's Facebook post. Nevertheless, a legal dictionary defines the term to mean, "A real-property owner who rents substandard housing units in a crowded, economically depressed area and allows the units to fall into further disrepair, esp. while charging unfairly high rents," or simply "the owner of any run-down rental property." …

While slum lord is capable of a definite meaning, its appearance in Brinkman's comment is vague enough that a reader of the post would be left to use his or her own definition, which would result in the term meaning different things to different people. This indefiniteness as to the meaning of the term cuts against a conclusion that it was a statement of fact. Further, the above definitions are not particularly capable of objective proof or disproof ….

Additionally, Brinkman's comment that Bauer is a "slum lord" followed on the heels of calling Bauer a "piece of shit." While understandably offensive and insulting, this type of name calling is generally not actionable….

"The common law has always differentiated sharply between genuinely defamatory communications as opposed to obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse. It has thus been held that a libel does not occur simply because the subject of the publication finds the publication annoying, offensive, or embarrassing. …

"No matter how mean or vulgar, such language is not defamatory. It is not defamatory, for example, to call someone a 'bastard,' or a 'son of a bitch,' or an 'idiot.' No matter how obnoxious, insulting, or tasteless such name-calling, it is regarded as a part of life for which the law of defamation affords no remedy."

Given the nebulous nature of the term "slum lord," standing alone as it was in this case, the first two factors cut in favor of the statement being that of opinion rather than fact.

Having determined the first two factors cut in favor of finding Brinkman's words to constitute nonactionable opinion rather than fact, we turn to the last two factors. These factors cause us to consider the fact that Brinkman's statement was made on Facebook and the context within which it was made on that social media platform in determining whether the statement was opinion protected by the first amendment….

The statements were made by adding to a chain of comments started between private individuals expressing disgruntlement over Bauer's dispute with the city regarding K.L.'s dog care facility. The message chain was not related to a news account or any other form of communication that purported to be fact based. Instead, it was clearly an exchange of opinions about the topic at hand. Brinkman's comments did not purport to interject facts to the discussion, but, instead, merely added to the string of expressed opinions. The comments focused on the dispute over K.L.'s dog care facility and not on Bauer's rental property.

We conclude that anyone viewing Brinkman's comments would have viewed them as nothing more than expressions of Brinkman's opinions, rather than a declaration of facts. Viewed in this context, the last two factors of the analysis join the first two factors in cutting in favor of a finding that Brinkman's statements were opinions rather than facts.

To be clear, we are not saying that statements made on Facebook or other social media forums cannot be defamatory as a categorical rule. Rather, we are acknowledging that, when alleged defamatory statements are made on a social media platform, the forum in which the statements were made is a contextual factor to consider in determining whether the statements are an expression of opinion or fact. In this case, we find the context of the postings on Facebook contribute to the conclusion Brinkman's statements were those of opinion and are thus protected by the first amendment….

Quite right, I think.

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  1. There’s an interesting 1995 case from Baltimore about whether a newspaper article calling one of the “Will Pay Cash for Your House” types a “blockbuster” (alluding to the sleazy realtor practices that fueled “white flight” in the 60s and 70s) is defamation https://caselaw.findlaw.com/md-court-of-special-appeals/1093422.html (Spoiler alert: it isn’t.) Baltimore has lost over 150,000 residents since 1990 as white flight has morphed into black flight.

  2. I disagree with the opinion. I think that “slum lord” has a sufficiently clear and definite meaning that it operates as a statement of fact.

    But then again, the examples the court used don’t convince me. I think a term like “bastard” has a clear and definite meaning and operates as a statement of fact.

    Declaring our communications meaningless may reduce libel liability. But it destroys our ability to communicate.

    If a person is actually engaged in wromg-doing, if we have conditioned to regard all warnings of it as mere opinion or surplusage verbiage and ignore them, we may have no way of knowing. Just because someone is being emotional and using emotional language doesn’t mean they aren’t communicating facts. Patronizing and discounting emotional people in some ways disserves them.

    1. These terms can, but can also be rhetorical hyperbole.

      Imagine a different case, entitled “Slum Lord Keeps Thousands in Substandard Housing”, and which contains a bunch of false statements about the plaintiff’s apartment complexes. In that situation, “slum lord” could be actionable.

      It just depends on whether a reader will take it in the particular context as making a factual claim or as hyperbole.

    2. Yeah, well I think ReaderY is a bastard son-of-a-bitch.

      You really think any court is going to recognize a libel claim based on that?

      1. A female dog giving birth out of wedlock!

        Them’s fighting words!

    3. I think that “slum lord” has a sufficiently clear and definite meaning that it operates as a statement of fact.

      What is it?

      1. I think Noscitur puts his finger on it. Calling someone a “slum lord” doesn’t say anything about him/her, other than that the speaker disapproves of him/her. I represented residential landlords in DC on rent control-related issues for decades. I doubt that any landlord, no matter how white-shoe, no matter how diligent in compliance with regulations, no matter how caring and sincere about tenant welfare (I’m describing most of my clients), wasn’t called a “slum lord” by somebody sometime. It comes with the territory. The plaintiff in this case needs to get over it, or find a more effective way to shut up a critic.
        I think that there was a time when calling someone a “bastard” was a serious defamation. Now, when everyone calls anyone they don’t like a bastard, it’s meaningless. Perhaps social media could lend a hand here and provide insults for various kinds of people that aren’t already cliches.

    4. I think a term like “bastard” has a clear and definite meaning and operates as a statement of fact.

      It actually has multiple different meanings, some are assertions of fact, others opinions.

      1. I’ve heard young Black men say the same thing about the “N” word having different meanings depending of the color of the skin of the person uttering it. I respectfully maintain that anything dependent on skin color is inherently racist.

    5. But then again, the examples the court used don’t convince me. I think a term like “bastard” has a clear and definite meaning and operates as a statement of fact.

      ReaderY is a bastard. What factual assertion did I just make?

  3. The interesting thing here is that whether a term is opinion or fact is contextual. Had the facts been different, the court might have concluded that it was a statement of fact.

    Hypothetically, the plaintiff neither owns or operates any rental real estate. Defendant calls him a “slum lord.” Clearly false. Would he then have a defamation claim?

    1. It’s hard for me to imagine how falsely being accused on owning a rental property could cause monetary damages, but if you could somehow prove it, sure. But it wouldn’t be any more defamatory than calling someone a “wonderful landlord”.

  4. What amazes me here are the plastic standards of Farcebook.

    Calling someone “a piece of shit” is acceptable, but use of the word “transexual” gets one banned.

    Oh Brave New World….

    1. First of all, you can say “transexual” on Facebook. A quick search shows plenty of groups and pages on Facebook. Second, I’m guessing if you were banned for using it, the ban was probably more for the other words you used around the word “transexual,” and probably the words you used to describe said transexual. In that case, good riddance.

      1. Right.

        The sentence was “The MassGOP has given us transexual bathrooms” — in the midst of a statewide referendum attempting to reverse that.

        All I can say is that I was put in Farcebook “jail”, with said sentence cited as the reason, at which point I simply eliminated the account.

        1. And Mark Levin is leaving Farcebook for similar reasons.

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