The Volokh Conspiracy
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Mac Isaac v. Twitter, Inc., decided yesterday by Judge Beth Bloom (S.D. Fla.), stems from Twitter's blocking Tweets of the New York Post's stories about information gotten from Hunter Biden's laptop, which had apparently been abandoned at John Paul Mac Isaac's computer repair shop (after it was dropped off so he could "recover information from damaged Mac computers owned by Hunter Biden").
Mac Isaac apparently passed the computer or copies of the material from the computer to the FBI and to Rudy Giuliani's lawyer; from there it made its way to the New York Post, but when the Post wrote about it, Twitter blocked the Post's Tweets on the grounds that they supposedly came from "hacked material." ("Pursuant to [Twitter's] Hacked Materials Policy, a 'hack' is defined as 'an intrusion or access of a computer, network, or electronic device that was unauthorized or exceeded authorized access.'")
Mac Isaac sued for libel, but the judge concluded that the statement didn't sufficiently identify Isaac (though later press accounts did identify him):
Plaintiff alleges that the Explanations are defamatory per se because they created the belief among members of the community that Plaintiff: (1) committed a crime— hacking; (2) was subject to hatred, ridicule, contempt, or disgrace—threats of harm and negative business reviews; and (3) was injured to his trade or business as a result—closed his business….
Specifically, Defendant first argues that Plaintiff's defamation claim fails as a matter of law because the Explanations "do not name Plaintiff or his business" or even "permit an 'ascertainable implication' that they were about Plaintiff.", however, maintains that the Explanations themselves need not specifically identify Plaintiff to be defamatory and Plaintiff is permitted to present extrinsic evidence in the form of the NY Post Article to demonstrate that the Explanations referred to him….
Florida courts have long held that if a defamed person is not named in the defamatory publication, "the communication as a whole [must] contain[ ] sufficient facts or references from which the injured person may be determined by the persons receiving the communication." The relevant inquiry is whether "the average person upon reading [the] statements could reasonably have concluded that the plaintiff [ ] was implicated[.]"
Here, while the Amended Complaint alleges that the NY Post "published a photo of the Repair Authorization … without blurring the business name thereby notifying the public where Biden had dropped off his laptop[,]" the Explanations did not include the subject photo. Nor did the Explanations mention Plaintiff, the Mac Shop, or provide any other descriptive information identifying Plaintiff as a purported "hacker."
In his submissions, Plaintiff seemingly concedes that the Explanations did not reveal his identity, but nonetheless avers that the Explanations "should not be evaluated in a vacuum and extrinsic evidence such as the NY Post article should be considered in order to show that the [Explanations] were referring to Plaintiff as a 'hacker' and/or the source of the confidential information." As such, Plaintiff seeks to impose liability upon Defendant based upon external facts and statements attributed not to Defendant, but rather unaffiliated third parties. However, Plaintiff's extrinsic evidence theory is flawed for several reasons.
First, the law in Florida dictates that defamation per se must be "actionable on its face" and does not "require[ ] additional explanation of the words used to show that they have a defamatory meaning or that the person defamed is the plaintiff." For example, in Scobie v. Taylor (S.D. Fla. 2013), the court explained that defamation claims can be proven in either of the following ways: (1) defamation per quod, which "requires an additional explanation of, or an interpretation of innuendo suggested by the words used to demonstrate the defamatory meaning or that the plaintiff is the subject of the statement[,]" or (2) defamation per se, which "does not require any additional explanation in order to prove the defamatory nature of the statement." The critical distinction between these actions is that in per se cases, "consideration is given only to the 'four corners' of the publication and 'the injurious nature of the statement' " must be apparent from the words of the publication itself. Thus, because Plaintiff has asserted a claim for defamation per se, looking outside the four corners of the Explanations to show that "the person defamed is plaintiff" would run afoul the very nature of a per se action….
The Court is certainly sympathetic to the events that took place and could envision a plausible claim had the explanations identified the "Mac Shop," "a Delaware repair shop" or even included a photo of the Repair Authorization. However, such is not the case here, and the law will not subject Defendant to liability where it was "meticulous enough" to preserve Plaintiff's anonymity [within the four corners of the Explanations]….