The Volokh Conspiracy

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

About The Volokh Conspiracy

Free Speech

Quoting Alleged Threat and Calling It a Threat Isn't Libel

|

From Bowen v. Van Bramer, decided Tuesday by the N.Y. intermediate appellate court (Justices Mark Dillon, Francesca Connolly, Valerie Brathwaite Nelson, and Lara Genovesi):

In February 2019, amid public criticism, e-commerce giant Amazon cancelled its plans to build a second corporate headquarters in the Long Island City area of Queens. The plaintiff, a local restaurateur, was involved in efforts to persuade Amazon to reconsider and proceed with its plans. The defendant, James "Jimmy" G. Van Bramer, then a member of the New York City council who represented the relevant portion of Queens, opposed the Amazon project.

After Amazon cancelled its plans, the plaintiff initiated an exchange of text messages with the defendant's chief-of-staff. In that exchange, the plaintiff demanded that the defendant contact Amazon executives and withdraw his opposition, promising that, if the defendant did so, the plaintiff could "stop the growing forces that will end councilman VanJobkillers career," but, if the defendant refused, the plaintiff would "add another sound bite on to the funeral pyre of Jimmys [sic] career" during the plaintiff's upcoming television appearance. In response, on March 1, 2019, the defendant "tweeted" (i.e., posted) a screenshot of that portion of the conversation on his Twitter (social media) feed, and, in his accompanying comments, accused the plaintiff of making "threats."

[This appears to be the tweet involved: -EV]

"Since falsity is a necessary element of a defamation cause of action and only 'facts' are capable of being proven false, 'it follows that only statements alleging facts can properly be the subject of a defamation action.'" Accordingly, "'[a]n expression of pure opinion is not actionable …, no matter how vituperative or unreasonable it may be.'" The allegedly defamatory statement "'must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader [or listener], and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction.'"

Where a statement of pure opinion implies that it is based upon undisclosed facts which justify the opinion, it is actionable because "a reasonable listener or reader would infer that the speaker [or writer] knows certain facts, unknown to [the] audience, which support [the] opinion and are detrimental to the person [toward] whom [the communication is directed]." Where, however, the opinion recites the facts upon which it is based without implying the existence of additional, undisclosed facts, that statement is not actionable.

The defendant's characterization of the plaintiff's text as containing "several threats rolled into one" is not a statement which can be proved true or false but was, instead, an opinion…. [Even] "accusations of criminality [can] be regarded as mere hypothesis and therefore not actionable if the facts on which they are based are fully and accurately set forth." Here, the defendant's statement amounts to no more than "nonactionable opinion or rhetorical hyperbole."