The Volokh Conspiracy

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

Free Speech

"You're Nobody" and the Law: Removing Candidate's Ballotpedia Page Isn't Libelous


From Magistrate Judge Phillip Green's Report & Recommendation Tuesday in Trouten v. Ballotpedia (W.D. Mich.):

Plaintiff alleges that Ballotpedia "has withdrew the 'Bryan Trouten for United States House of Representatives Campaign' on their website." Plaintiff alleges that this action constitutes libel and/or defamation under state law. Plaintiff seeks $5,000,000.00 in damages….

It must first be noted that Plaintiff does not allege that Defendant made any false or defamatory statement concerning him. Instead, Plaintiff alleges that Defendant merely removed information from its website concerning him. Defendant argues that Plaintiff's claim fails the first element. But Plaintiff further alleges that, by removing the information in question from its website, Defendant was falsely "claiming that [Plaintiff] withdrew his campaign." Thus, Plaintiff asserts that Defendant's actions implied, falsely, that Plaintiff had withdrawn his campaign.

Michigan recognizes a cause of action for defamation by implication. To prevail on such a claim, Plaintiff must establish that the defamatory implication is "materially false." Plaintiff alleges that he did not withdraw his candidacy for the U.S. House of Representatives and, moreover, that he timely submitted with the State of Michigan the paperwork necessary to be considered a write-in candidate. Thus, contrary to Defendant's arguments, Plaintiff's allegations satisfy the initial element of the analysis.

{Defendant asserts that it merely "listed [Plaintiff] as an inactive candidate after the Michigan Department of State released an official candidate list without [Plaintiff's] name on it."  Defendant further asserts that "[w]hen Trouten informed Ballotpedia that he was an active write-in candidate, Ballotpedia updated its encyclopedia to reflect that status." These assertions are not supported by any evidence and go beyond the scope of a motion asserted under Federal Rule of Civil Procedure 12(b)(6). The Court has, therefore, disregarded the assertions in question. If Defendant wanted to present evidence and argue that it is entitled to relief as a matter of law, it should have asserted a motion [for summary judgment] under Federal Rule of Civil Procedure 56.}

Plaintiff's claim nevertheless fails because the implication that Plaintiff withdrew his candidacy for the U.S. House of Representatives is simply not defamatory because it does not tend to harm Plaintiff's reputation or deter third persons from associating with Plaintiff. See, e.g., Kevorkian v. American Medical Association (Mich. Ct. App. 1999) (the court "may determine, as a matter of law, whether a statement is actually capable of defamatory meaning").

Plaintiff's claim fails for a second reason as well. Because Plaintiff was a candidate for public office, he is considered, for present purposes, a public figure. As such, Plaintiff must establish that Defendant acted with "actual malice" or "with knowledge that [its implied statement] was false or with reckless disregard of whether it was false or not." Plaintiff has failed to allege any facts which, if proven, would satisfy this standard. Thus, Plaintiff's claim fails, in the alternative, for this reason.

In his response to the present motion, Plaintiff fails to present any argument, or identify any authority, in opposition to Defendant's motion. Rather, Plaintiff merely states, "I didn't want to[o] much information about my case being exposed to the defense, because I actually have material facts as well as many other factual evidence that are deemed troublesome to this case." This vague, unsworn statement fails to advance Plaintiff's position. Plaintiff further states, "I want to end with this" and requests that he be permitted to "express [his] side of the case in person" because "[i]t will definitely provide the material needed in understanding the case a little better…." The Court appreciates Plaintiff's desire to be heard, but Plaintiff has presented no argument or authority suggesting that oral argument would assist the Court in determining the legal sufficiency of the allegations in Plaintiff's complaint….

Congratulations to Joseph E. Richotte, Jennifer A. Dukarski & Barrett R.H. Young of Butzel Long, P.C., who represent Ballotpedia.