The Volokh Conspiracy
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Court: "A Retweet Is Not Necessarily an Endorsement"
This comes in a false light lawsuit by the family of former National Security Advisor Gen. Michael Flynn, whom CNN had labeled “QAnon followers.”
From today's opinion by Judge Gregory Woods in Flynn v. CNN (S.D.N.Y.):
What does it say about you if you "follow" someone on Twitter? What does it say about you when you retweet someone else's tweet? These are not just questions for Millennials or Zoomers. They are critical questions in this motion to dismiss.
CNN argues that the Court should conclude as a matter of law that by retweeting another's tweet, the retweeter is adopting every word in the tweet as their own. A retweet, in CNN's view, cannot merely be used to comment on another's tweet or to forward the fact of its existence to another. CNN also argues that the Court should adopt the position that when you "follow" a person's Twitter feed, you become that person's "follower," in the sense that you are now an adherent to the entire belief system of the tweeter. By following someone on Twitter, in CNN's view, you are not merely interested in seeing what the person you are following has to say.
The Court remains unwilling to adopt as a matter of law CNN's sweeping assertions regarding the significance of a retweet, or what it means to "follow" someone on Twitter, and therefore denies CNN's motion for reconsideration in part and denies CNN's motion to certify an interlocutory appeal….
Plaintiffs John P. ("Jack") and Leslie A. Flynn … brought claims of defamation and false light against Defendant Cable News Network … for airing a report that the Flynns allege falsely called them QAnon followers…. The Court granted CNN's motion to dismiss the Flynns' defamation claim, but[, contrary to Magistrate Judge Sarah Cave's report and recommendation,] held that the Flynns plausibly alleged a false light claim.
CNN seeks reconsideration of the Court's holding that the Flynns plausibly alleged a false light claim. In Flynn I, the Court explained that to prevail on a false light claim, "a plaintiff must establish that '[t]here has been some publication of a false or fictitious fact which implies an association which does not exist; [and] [t]he association which has been published or implied would be objectionable to the ordinary reasonable man under the circumstances.'" The Court noted that:
The Flynns object to [Magistrate] Judge Cave's conclusion that the Flynns' tweets establish that they were QAnon followers. Whether the Flynns were QAnon followers, and in particular, whether the Flynns were "followers" as that word is understood in the context of CNN's publication, is a highly fact-intensive inquiry. Here, the Flynns specifically allege that they are not QAnon followers and allege that Jack's tweets show that he "embraced the Constitution and equal justice under the law … not the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon" and that he has "denied basic tenets of the QAnon movement." At the motion to dismiss stage, the Court cannot discredit these factual allegations and must draw all reasonable inferences in the Flynns' favor. Further, although "[t]he truth of factual allegations that are contradicted by documents properly considered on a motion to dismiss need not be accepted," the Flynns' tweets do not conclusively contradict their factual allegations. Even though the tweets express support for QAnon and are therefore evidence that the Flynns were QAnon followers, the Court cannot weigh evidence in deciding a motion to dismiss. Instead, the Court's task is to assess the legal feasibility of the complaint. Because the Court accepts the Flynns' allegation that they are not QAnon followers as true, the Flynns have plausibly alleged that CNN's statement was false.
… CNN argues that the Court did not analyze whether CNN's statement was materially false and that "[s]tatements are not materially false even if they admit of '[m]inor inaccuracies[,] … so long as the substance, the gist, the sting, of the libelous charge be justified.'" … [C]ontrary to CNN's arguments, the Court did not rely on the wrong standard in analyzing the Flynns' false light claim. [But f]or the avoidance of doubt, the Court will expand on its analysis under the applicable standard.
The Flynns' false light claim arose from a report aired by CNN on February 3, 2021, which was entitled "CNN Goes Inside a Gathering of QAnon Followers." The report included a brief clip of the Flynns standing next to Lieutenant General Michael Flynn as he proclaimed, "where we go one, we go all." While the Flynns were on screen, the report simultaneously displayed a chyron with the words "CNN Goes Inside a Gathering of QAnon Followers." The Flynns allege that the report placed them in a false light because they are not QAnon followers.
Before the Court can determine whether the Flynns plausibly alleged that CNN's statement was false, the Court must determine the meaning of CNN's statement that the Flynns were QAnon followers. To determine the meaning of an allegedly false statement, the Court must consider the statement "in the context of the publication in which [it] appear[s], taken as a whole." …
Nothing in CNN's report suggests that a QAnon follower is someone who merely engages with the movement on Twitter, in the sense that a fan might "follow" their favorite actor. Rather, in the context of CNN's report, the term QAnon follower would be reasonably understood by a viewer to mean an adherent to the QAnon movement, in the sense that a member of a faith follows its belief system.
The report, which was aired roughly a month after the January 6, 2021 attack on the United States Capitol, focuses on individuals attending a QAnon meeting with "prominent figures in the QAnon movement." Among other things, the report shows a speaker at the meeting state "we are at war right now, and we in this room understand that, very, very much." One of the individuals at the meeting, known as the QAnon Shaman, is shirtless, has his face painted, and is wearing a horned headdress and a QAnon flag as a cape. The report states that at least two people at the meeting were in Washington D.C. on January 6, including the QAnon Shaman, who stormed the Capitol.The report interposes footage of the QAnon meeting with violent footage from the January 6 attack.A commentator explains that the people at the meeting "felt like they were part of something big and revolutionary and that they were opposing absolute evil."
The Flynns further allege that, in CNN's own words, QAnon is a "cult" and that "[t]rusting the plan was an important part of QAnon belief." In this context, a viewer would reasonably understand that a QAnon follower is an adherent to the QAnon belief system—including the belief that a high-ranking government insider known as "Q" is exposing a cabal of Satan-worshipping pedophiles which controls the government—not merely someone who read or forwarded tweets about QAnon.
With that understanding of the meaning of the word follower in mind, the Court considered whether the Flynns plausibly alleged falsity for purposes of their false light claim. Under Rhode Island law, a false light claim cannot be based on the publication of statements that are substantially true. "A statement is substantially true unless 'it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'" Further, statements are substantially true "even if they admit of '[m]inor inaccuracies[,] … so long as the substance, the gist, the sting, of the libelous charge be justified.'"
The Court adheres to its conclusion that the Flynns plausibly alleged that CNN's statement was false. The Flynns specifically allege that they "are not followers … of any extremist or terrorist groups, including QAnon." The Court must accept the facts as pleaded in the complaint as true. Further, the Flynns' tweets, which Judge Cave determined were integral to the complaint and could therefore be considered in connection with the motion to dismiss, do not establish that the Flynns are adherents to the QAnon credo. Nevertheless, CNN argues that it was substantially true to call the Flynns' QAnon followers in light of their Twitter activity.
CNN's argument places far too much weight on the significance of the Flynns' social media activity. Crucially, none of the Flynns' tweets state that they are believers in the QAnon movement. For instance, in one of Jack's tweets on August 20, 2020, Jack stated "I advocate for the Constitution and Bill of Rights. If Q does too~No harm no foul." Similarly, after a Twitter user replied to one of Jack's tweets with a tweet stating, "We are with you Jack!" along with an image of the letter 'Q' and the slogan "where we go one we go all" superimposed over an American flag, Jack tweeted, "If this means you believe in the constitution and equal justice under the law then this works for me."As the Flynns identify in the complaint, while Jack's tweets "embraced the Constitution and equal justice under the law," Jack's tweets do not state that he believes in "the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon."
The Court cannot assume that Jack believes in every viewpoint held by the QAnon movement merely because Jack tweeted that he shares QAnon's alleged belief in the Constitution, the Bill of Rights, and equal justice under the law. CNN's assertion that believing in these principles automatically makes someone a QAnon adherent is simply wrong. A person can believe in certain viewpoints espoused by a movement without believing in all aspects of the movement.
In addition, CNN argues that the Flynns "publicized their support for QAnon" through retweets…. Judge Cave also relied on the Flynns' retweets to support the conclusion that CNN's statement was substantially true. In one example, Jack retweeted a post which stated, "Qanon is not a violent conspiracy. We are every day people seeking truth…. Qanon's, share and tell your story." Judge Cave concluded that "[b]y using the word 'we,' Jack included himself as one who 'follows the opinions' of QAnon, and invited others who 'share[d]' those opinions to join his comments." By relying on the Flynns' retweets, CNN assumes that the Flynns believed in, and adopted, everything that they retweeted. In essence, CNN is asking the Court to conclude as a matter of law that retweeting a statement is the same as making the statement in the first instance.
The Court disagrees. Jack did not make the statement, "We are every day people seeking truth." He retweeted it. There are many reasons that someone might retweet a statement; a retweet is not necessarily an endorsement of the original tweet, much less an endorsement of the unexpressed belief system of the original tweeter, as CNN would have it. Therefore, at the motion to dismiss stage, the Court cannot conclude as a matter of law that Jack adopted the content of the tweet and was therefore calling himself a member of the QAnon movement by using the word "we." Nor can the Court conclude that the Flynns personally believed the other statements that they retweeted, particularly in light of the Flynns' factual allegation that they do not share the beliefs of the QAnon movement.
CNN also places a lot of weight on the July 4, 2020 video that Jack retweeted, in which the Flynns recite the known QAnon phrase "where we go one, we go all." Yet, in the complaint the Flynns allege that their recitation of the phrase "did not signify any kind of support for QAnon" and that "[i]t was not an oath of allegiance to QAnon, or any kind of oath at all." The Court takes no position on whether, at a later stage in the case, a factfinder may discredit this allegation. At this stage in the case, however, the Court must accept the Flynns' factual allegations as true and draw all reasonable inferences in their favor. Consequently, at this stage of the case the Court must accept that the Flynns' recitation of the phrase does not suggest that the Flynns are QAnon adherents.
In sum, the Flynns' tweets are not sufficient to establish that it was substantially true to call the Flynns QAnon followers. The ultimate question is whether CNN's statement would have a different effect on the mind of the reader than the pleaded truth. The Flynns allege that QAnon is a "dangerous," "violent," "racist," "extremist," "insurrectionist," and "domestic terrorism" movement. As alleged, the Flynns do not share those beliefs and the Flynns' tweets do not establish otherwise. Accordingly, given the extreme negative connotations of being a QAnon follower, the Flynns have adequately alleged that being labeled a QAnon follower would have a different effect on the mind of a viewer than the pleaded truth….