The Volokh Conspiracy

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

Free Speech

No Pseudonymous Libel Litigation, Holds Kentucky Court of Appeals in a Covington Boys Case


From Doe v. Flores, decided Friday by the Kentucky Court of Appeals (Judge Donna Dixon, joined by Chief Judge Denise Clayton and Judge Sara Walter Combs):

John Does 1-10 … were minor students of Covington Catholic High School. On January 18, 2019, Does traveled with their classmates to Washington, D.C., to attend the March for Life. Afterward, Does and their classmates met at the Lincoln Memorial to await their bus. Members of the Black Hebrew Israelites were at the Lincoln Memorial and insulted the students. Native American activist leader Nathan Phillips was also at the Lincoln Memorial singing, chanting, and playing his drum. In response, some students engaged in school cheers, and performed a tomahawk chop "cheer." These encounters were filmed and uploaded with commentary to various forms of media. Many people took offense to the students' behavior and called for their punishment, shaming, and doxing.

Among a myriad of cases arising out of the same incident, Does 1-8 sued Ana Violeta Navarro Flores, Adam Edelen, Clara Jeffery, Jeffrey Shaun King, Jodi Jacobson, Kathy Griffin, Kevin M. Kruze, Maggie Haberman, Matthew John Dowd, and Reza Aslan for defamation per se in state court.

The court concluded that the district court rightly found that it had "no personal jurisdiction over all defendants, except Edelen":

Since Pierce v. Serafin (Ky. App. 1990), Kentucky courts have dismissed the notion that an out-of-state defendant commits an "act" in Kentucky by sending a tortious communication into the state. In so doing, Kentucky courts have "distinguished between tortious acts and tortious consequences." Kentucky courts have further recognized that the phrase [in the state personal jurisdiction statute] causing a "tortious injury in this Commonwealth by an act or omission outside this Commonwealth" would have no meaning if plaintiffs' theory was accepted. Our courts also acknowledge that if the legislature desires to broaden the long-arm statute to bring claims such as these within its reach, it certainly may; however, it is not the court's place to rewrite this statute….

And the court rejected the Does' claim against Edelen, starting by stressing their pseudonymity:

First, … we must address the elephant in the room: is it even possible to make an anonymous claim for defamation? It defies logic to think anyone could present proof of defamation anonymously. The notion is so preposterous that Does have not pointed to any case law that allows them to proceed in this manner, nor have we found any.

Additionally, CR 10.01 requires complaints to include the names of all the parties. Yet, it is accepted that:

the court may recognize an exception to this rule and permit plaintiffs to proceed pseudonymously. Several factors guide the analysis of whether a plaintiff's privacy interest substantially outweighs the presumption of open judicial proceedings. These factors include: (a) whether the plaintiffs seeking anonymity are suing to challenge governmental activity, (b) whether prosecution of the suit will compel the plaintiffs to disclose information "of the utmost intimacy," and (c) whether a child plaintiff is involved. Doe v. Stegall (5th Cir. 1981). In this case, these factors justify the plaintiffs' anonymity….

The Stegall court was careful to clarify that "we do not mean to imply that all civil rights suits mounted in the name of children may be prosecuted anonymously." Here, it appears there was no request to the trial court for Does to proceed anonymously, nor any analysis conducted by the trial court as to whether they were entitled to do so. Nonetheless, the only factor favoring an anonymous pursuit of these claims is Does' youth, which—although it is certainly not dispositive—may no longer even be applicable. Moreover, and as a practical matter, if Does' claims of defamation were to proceed, they would be unable to prove them without eventually revealing their identities.

And the court concluded that in any event Edelen's allegedly defamatory tweet was opinion, and thus not actionable as libel:

Edelen's tweet reads, "This is outrageous and abhorrent behavior. I hope part of any punishment is to ensure they read a history book on how America's indigenous people have been treated. The parents and school that produced these boys need to do some serious soul-searching." The tweet also provided a link to a story titled, "Native American says he sought to quell tension[,]" which was not written by Edelen. The entirety of that article reads:

FRANKFORT, Ky.—A Native American organizer of a march in Washington, D.C., says he felt compelled to get between a group of black religious activists and largely white students with his ceremonial drum to defuse a potentially dangerous situation.

Nathan Phillips on Sunday recounted for the Associated Press how he came to be surrounded by a group of students from a Catholic boys' high school in Kentucky in an encounter captured on videos that are circulating online. Some of the students were wearing "Make America Great Again" hats.

Phillips was participating in Friday's Indigenous Peoples March. The students had attended the March for Life rally the same day.

Videos also show members of the activist group yelling insults at the students, who taunt them in return.

Videos also show students chanting, laughing and jeering as Phillips sings and plays the drum.

A Kentucky diocese has issued an apology to the Ypsilanti, Michigan, man.

A link to a video was also included with the article so readers could observe what occurred and form their own impressions, interpretations, and opinions concerning the events….

"[T]he falsity requirement is met only if the statement in question makes an assertion of fact—that is, an assertion that is capable of being proved objectively incorrect[,]" or otherwise "connotes actual, objectively verifiable facts."). The statements contained in Edelen's tweet are incapable of being proved objectively incorrect and amount to nothing more than Edelen's opinion.

Kentucky has adopted the view of Restatement (Second) of Torts § 566, which states: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." "Pure opinion … occurs where the commentator states the facts on which the opinion is based[.]" … Edelen disclosed the facts on which his opinion was based by including a link to the article in his tweet.Thus, the trial court did not err in finding that Edelen's tweet consisted of pure opinion and was not defamatory as a matter of law.

{Contrary to the allegations in Does' amended complaint, neither Edelen's tweet nor the article it linked contained "false statements" that "the kids interrupted an indigenous march, stopped and blocked a Native American elder and Vietnam War veteran from continuous participation in that event, surrounded him in a threatening manner, and taunted him, as a [N]ative American elder, with chants of 'build the wall' to mock an elderly [N]ative American in the middle of an indigenous march."}