The Volokh Conspiracy

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

Free Speech

Dungeons & Defamation: Role-Playing Game Convention Libel Case Can Go Forward

Good thing Zak Smith had lawyer characters with 18 Tort Law Acumen.


In Smith v. Gen Con LLC, the court allowed plaintiff's defamation claim to go forward:

Zak Smith is an artist who began developing tabletop role-playing games ("RPGs") in 2010. Smith was successful in the RPG world, winning prestigious awards, successfully developing and selling his own games, and consulting on prominent RPGs such as Dungeons & Dragons. Smith generated a substantial portion of his income from RPG development and consulting.

Gen Con is "the largest and longest-running tabletop gaming convention in North America," annually hosting about "70,000 RPG developers, producers, manufacturers, consultants, and fans [who] unveil their new releases, gain recognition and publicity in the RPG industry, and engage in activities to promote themselves, their games, and their businesses." "For consultants, developers, and producers of [RPGs] to succeed in that industry, they must attend Gen Con." Peter Adkison is the co-owner and board chairman of Gen Con. Smith attended Gen Con for many years and "generated a significant amount of his professional and business relations, consulting jobs, sales, and other business interest in the RPG industry from the event."

In February 2019, Smith's estranged wife published a Facebook post accusing Smith of sexual assault during their marriage. Smith alleges, and we must assume for purposes of this appeal, that these accusations are false.

Shortly after Smith's wife made the Facebook post, Adkison published a statement on Gen Con's website:

At Gen Con we have a policy of not disclosing the names of individuals who have been sanctioned or banned from our events. However, our statements regarding a recent ban have caused confusion and more importantly, made people feel that Gen Con doesn't care about attendee safety. To clarify, I want to state that Zak S has been banned from Gen Con and that we flat-out don't tolerate harassers or abusers in our community or at our convention.

Adkison published a post linking to the statement on his personal Facebook page, saying, "In response to the recent outcry against Zak Smith, I've posted an open letter on the Gen Con website uninviting him to Gen Con." In response to a comment on that post characterizing Gen Con's statement as lacking due process, Adkison stated: "There was due process, that's why it took us so long to come around. There were many people abused by Zak, the evidence was overwhelming. I don't need a court process to uninvite [an] abuser to my party." Gen Con also linked to the statement on its Twitter account in a tweet saying, "Last week, we made a statement regarding our stance on abuse & harassment in gaming. {This is apparently in reference to an earlier statement that Gen Con made in response to the accusations against Smith, which did not name Smith or specify that he was banned.} Many of you told us it wasn't clear enough & we need to take a firmer stand. We heard you & want to be clear: Zak S is banned from attending."

In the wake of these statements, the news that Smith was banned was reported in a major gaming news outlet, Smith lost his main game publisher, a game he was working on was suspended, vendors and most relevant game forums banned Smith, and Smith's Wikipedia page was edited to reflect the news. Smith lost substantial income, suffered damage to his reputation, and suffered emotional distress….

In a defamation case, a plaintiff must establish that the defendant made false statements, that the statements were unprivileged, that the defendant was at fault, and that the statements proximately caused damages. The level of fault that must be proved in defamation cases depends on the plaintiff's status as a public or private individual. "If the plaintiff is a public figure or public official, he must show actual malice. If, on the other hand, the plaintiff is a private figure, he need show only negligence." "A defendant acts with malice when he knows the statement is false or recklessly disregards its probable falsity."

Here, Gen Con and Adkison claimed, and the court determined, that Smith failed to adequately plead fault and causation. But Smith's complaint alleged that Gen Con and Adkison "knew that [the web post, tweet, and Facebook reply were] false, reasonably should have known they were false, and acted maliciously and … with the intent, or with despicable conduct, to harm" Smith. This sufficiently alleged that Gen Con and Adkison were at fault, even if Smith is considered a public figure. "Malice, intent, knowledge, and other condition of mind of a person may be averred generally." While Smith may not have alleged specific facts proving that Gen Con and Adkison knew or should have known that the statements were false, that is not the issue at the CR 12(b)(6) stage.

Furthermore, Smith adequately alleged causation. Smith alleged that Gen Con is an important and influential part of the RPG community: that it is "'the largest and longest-running tabletop gaming convention in North America,'" that an average of 70,000 people attend, and that "[f]or consultants, developers, and producers of [RPGs] to succeed in that industry, they must attend Gen Con." Smith alleged that after Gen Con and Adkison made their statements, their statements were reported in at least one news outlet, publishers and vendors stopped working with Smith, Smith was banned from most relevant game forums, and Smith suffered substantial damage to his reputation and loss of income. It also alleged that these outcomes were direct and proximate results of the defendants' statements. This was sufficient to allege causation.

To survive a CR 12(b)(6) motion, Smith was not required to provide evidence showing how the statements caused the specific damages. His complaint only had to include "'direct allegations on every material point necessary to sustain a recovery … or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.'"Smith's statements that Adkison and Gen Con exercised a strong influence in the gaming world and that their statements caused his enumerated damages were more than sufficient to allege causation.

Gen Con disagrees and contends that Smith's causation claim relies only on a coincidence in timing, and not on any showing of cause and effect. But while Gen Con is correct that showing one event preceded another is not necessarily sufficient to prove causation, Smith was not required to prove causation in his complaint. Instead, at this stage of the proceeding, he only had to "give the opposing party fair notice of what the claim is and the ground upon which it rests." Smith's complaint gives fair notice of his theory that Gen Con and Adkison's decision to make their public statements influenced other members of the RPG community to take similar actions against Smith, causing harm to his reputation and livelihood….

Defamation Per Se

A statement is defamatory per se if it "(1) exposes a living person to hatred, contempt, ridicule or obloquy, or to deprive him of the benefit of public confidence or social intercourse, or (2) injures him in his business, trade, profession or office." "The imputation of a criminal offense involving moral turpitude has been held to be clearly libelous per se." Spousal abuse is a crime involving moral turpitude. If a statement "deals with the rather vague areas of public confidence, injury to business, etc.," then whether it is defamation per se should likely be a question of fact for the jury.

We conclude that the court erred by dismissing Smith's defamation per se claim. The court concluded that the statements at issue were not "extreme" or "severe" enough to constitute defamation per se and that Smith failed to adequately allege causation. But the statements may have injured Smith in his business and may have imputed a crime involving moral turpitude to him. The court therefore erred by determining as a matter of law that the statements were not defamatory per se. Moreover, the court erred by finding that Smith failed to allege the statements caused damage, because if a statement is defamatory per se, "damages need not be proved." The court erred by dismissing Smith's defamation per se claim.

For similar reasons, the court concluded that plaintiff's false light and interference with business expectancy claim could go forward.

Congratulations to Philip Albert Talmadge and Gary Manca (Talmadge/Fitzpatrick) and Moshe Yiftah Admon (Admon Law Firm, PLLC) on the victory.