Merely Retweeting Link to Old Article Doesn't Restart Statute of Limitations

So holds the court in a libel lawsuit brought by Jerry Falwell, Jr.'s former personal trainer.

From Crosswhite v. Reuters News & Media, Inc., decided today by Judge Elizabeth K. Dillon (W.D. Va.):

Plaintiff Benjamin Crosswhite is a personal trainer in Lynchburg, Virginia. Crosswhite trained Jerry Falwell, Jr., the former president of Liberty University, and his wife Becki Falwell.

In 2019 and 2020, Mr. Falwell became the subject of several public controversies. On August 27, 2019, Reuters published an article on its website entitled "Exclusive: Falwell Steered Liberty University land deal benefiting his personal trainer." This article reported on real estate transactions between Liberty University and Crosswhite that were approved by Falwell. Reuters also posted a link to the article on its Twitter account, and one of the authors, Aram Roston, re-tweeted the article.

On September 12, 2019, Reuters published an article on its website called "Exclusive: Falwell Blasted Liberty Student as 'Retarded,' Police Chief as 'Half-Wit' in Emails." This article reported on Falwell's pattern of belittling Liberty University students and staff. The article also stated that Falwell "has been dogged by recent stories about his private dealings and his stewardship of Liberty," including "his role in steering a $1.2 million piece of university property to his personal fitness trainer. On August 27, Reuters reported how Falwell had helped his young personal trainer, Benjamin Crosswhite." Reuters and Roston tweeted a link to the article.

Crosswhite filed this action on March 25, 2021, alleging claims for defamation. The complaint focuses on statements made in the articles regarding Falwell's favored treatment of Crosswhite….

Under Virginia law, claims for defamation must be brought within one year "after the cause of action accrues." A cause of action for defamation accrues on the date the "allegedly defamatory statements were published." … Crosswhite's claims … [were thus] barred by the statute of limitations.

Crosswhite argues that various re-tweets and hyperlinks bring his claims within the statute of limitations. The Fourth Circuit recently addressed similar arguments in Lokhova v. Halper (4th Cir. 2021). {Plaintiff's counsel in this case was plaintiff's counsel in Lokhova [Steven Biss].} The Court explained its determination that Virginia would follow the "single publication rule," pursuant to which "subsequent distribution of a defamatory statement may continue to increase plaintiff's compensable damages," but the subsequent distribution "does not create independent actions or start the statute of limitations running anew."

The court then rejected the argument that hyperlinks and third-party tweets save the claims under the republication doctrine. Regarding hyperlinks, the court endorsed caselaw holding that "merely linking to an article should not amount to republication." "The public policy supporting the single publication rule and the traditional principles of republication dictate that a mere hyperlink, without more, cannot constitute republication." Regarding re-tweets, the court held that if "each third party tweet containing the article were to constitute a republication, the multiplicity of lawsuits assuredly would be beyond overwhelming."

Crosswhite directs the court to paragraph 23 of his complaint, which references an August 24, 2020 tweet by Reuters employee Lawrence Delevingne. The tweet states: "Other great reporting on Falwell & Liberty U. by @AramRoston @jschney." Crosswhite characterizes this tweet as doing more than providing a "mere hyperlink" to the 2019 articles. This 2020 tweet associates Crosswhite and the 2019 articles with a new article about the Fallwells' dealings with a "pool boy." {See https://www.reuters.com/investigates/special-report/usa-falwell-relationship ("Business partner of Falwells says affair with evangelical power couple spanned seven years").} The 2020 tweet also tags other twitter accounts, including @AramRoston, @Reuters, and @specialreports, which plaintiff alleges further shows an intent to republish old content to new target audiences.

These arguments were addressed and rejected by the Fourth Circuit in Lokhova. { Reuters notes that pages 6 through 8 in Crosswhite's opposition brief are cut and pasted from the brief in Lokhova.} In Lokhova, plaintiff argued that "whether the hyperlink in question included additional content that would constitute republication is a factual question that should survive a motion to dismiss." The court disagreed because the original article was hyperlinked in a later article, and as a result, "the hyperlink served as a reference for the New York Times' existing audience and did not direct the old article to a new audience." Similarly, here, the 2020 tweet about the 2019 articles served as a reference for Reuters' existing audience. The subsequent publication did not add or alter the original publication…. "[A] link is akin to the release of an additional copy of the same edition of a publication because it does not alter the substance of the original publication." … The 2020 tweet does not contain the words "pool boy," nor does it include any other terms to add to the original article or suggest in any way that plaintiff was the "pool boy." It merely states, "Other great reporting on Falwell & Liberty U. by @AramRoston @jschney." {The tweet also did not "tag" the @Reuters or @specialreports accounts; rather, it replied to them.}

To the extent that Crosswhite relies upon tweets by third parties (i.e., tweets by individuals not associated with Reuters), the Fourth Circuit, as noted above, also found that third-party tweets do not constitute republication. In so doing, the court rejected the same argument advanced in this case by Crosswhite based on the Virginia Supreme Court decision in Weaver v. Beneficial Finance Co. (Va. 1957). "Ignoring for a moment that Weaver was decided over 60 years ago, well before the ubiquity of the Internet, this issue can be resolved pursuant to the terms of Weaver itself because there the court recognized a distinction when applying republication rules 'to newspapers and magazines' as opposed to individuals …. Thus, we conclude Weaver does not require holding third party tweets constitute republication." Lokhova.

Finally, Crosswhite provides a recent Eighth Circuit case as supplemental authority in support of his republication theory. Nunes v. Lizza (8th Cir. 2021). In Nunes, the court held that the complaint stated a claim for defamation based on a "tweet of a link to the original article" because the complaint "adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article."  The court noted that Lokhova and other cases "do not hold categorically that hyperlinking to an original publication never constitutes republication."

As an initial matter, if Nunes is inconsistent with Lokhova, the court must follow the Fourth Circuit's holding in Lokhova. But Nunes is distinguishable in any event. In Nunes, the issue was whether defendant acted with "actual malice by republishing the article on his Twitter account after this lawsuit was filed." The court reasoned that

Lizza was on notice of the article's alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his 'strange tale' about 'immigration policy,' and promoting that 'I've got a story for you.' Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.

Thus, the tweet in Nunes provided more than a "mere hyperlink;" it contained additional statements with potentially defamatory implications. {The full tweet stated: "I noticed that Devin Nunes is in the news. If you're interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I've got a story for you."} Not so the August 2020 tweet by Lawrence Delevingne, which merely refers to the article as containing "Other great reporting on Falwell & Liberty U."

Comments

[Eric VonSalzen]

This seems obviously correct, although a policy argument could be made for changing the statute of limitations.

[Sidney r finkel]

I realize Jerry Falwell Jr. was not a party, but reading this Post made me wonder if it was even possible to libel or slander Falwell Jr.

[Sebastian Cremmington]

He puts the “cuck” in “cuckservative”. 😉

[ravenshrike]

Every day the newspaper hosts the article on their servers is a new publication. They are producing a fresh copy of the article off their equivalent of printers, not leaving a limited number of printed copies lying around. The single publication rule being applied to the originator of the defamation given they can produce an infinite number of copies in effective perpetuity is completely fucking moronic.

[Rossami]

So by that logic, a library that puts a copy of the newpaper on the shelf for anyone to pick up and read years or even decades later is also republishing the article every day, right?

Talk about moronic.

[benji]

Not to mention that many libraries have stored back copies of newspapers on microfiche or whatever for decades already. Digitizing these shouldn’t perpetually “reset” a clock.

[ReaderY]

Consider the following strategem:

1. You “publish” a libelous article on the internet using an extremely hard-to-access URL, possibly blocking it from search engines so that it is technically publicly accessible but only to those who happen to guess at the long URL.

2. You wait until the statute of lkmitations expires.

3. You then post links to the previously obscure URL all over the place, completely free of liability.

Legal?

[John F. Carr]

I was wondering the same thing. You could run into a problem proving that the article existed more than a year ago, or the judge could rule that the cause of action accrued when the first person saw the page or when you took action to uncloak it.

[ReaderY]

No problem. If it’s required that someone else actually saw the article for the clock to start, you give a friend the URL and document that the friend viewed it.

[John F. Carr]

Does the statute of limitations in Virginia start on disclosure to any third party, or when a hypothetical reasonably diligent plaintiff would have learned of the harm?

[David Nieporent]

I’m not a Virginia lawyer, but 10 seconds of googling:

No Discovery Rule for Defamation Claims in Virginia

(For those non-lawyers: a “discovery rule” is what JFC describes: that the clock doesn’t start until a reasonably diligent person would’ve discovered the statement.)

It is my sense that most states do not apply a discovery rule to defamation.

[Dilan Esper]

I suspect a court could still deal with that situation through equitable tolling.

I wonder, though, about a different scenario. Rando tweets out something defamatory to his 10 followers. Statute runs. Then guy with 1 million followers retweets.

[David Nieporent]

I suspect a court could still deal with that situation through equitable tolling.

If the person formally publishes but actively conceals the defamation until the SoL runs out, and then broadcasts it widely? Yeah, seems like exactly the scenario where that could apply.

[ReaderY]

I think a basic archaism in the law is it doesn’t distinguish between the kind of public access in which someone who knows what to look for can go into a courthouse and ask for a case and page number, and the kind where something displays prominently in a search engine.

The Streisand Effect illustrates the problem. At the time she filed suit, suing actually increased her net damages. But if she didn’t sue, the statute of limitations begins running.

Perhaps the point at which the statute of limitations should begin is the point at which ones damages experienced from filing suit first become less than ones damages from not filing suit.

[David Nieporent]

Of course, the problem with Streisand’s suit was not that it ran afoul of the SOL, but that it was meritless. (And I don’t understand the reference to courthouse lookups either, because a suit over something in a court file is similarly going to be meritless, regardless of the SOL.)