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Free Speech

"I Was Just Kidding!" Assertion Can't Justify Dismissal of Libel Case

Def Noodles v. Keemstar.


From Feitosa v. Keem, decided Tuesday by Judge William Skretny (W.D.N.Y.):

In this action, Plaintiff Dennis Feitosa alleges that Defendant Daniel Keem defamed him when he tweeted that "Def Noodles," Feitosa's YouTube persona, had been accused of grooming 12- to 15-year-old girls….

Keem also argues that the Tweet is protected by the First Amendment because it is not a factual assertion capable of being proven true. Rather, he argues, in light of the Twitter context, the Tweet is clearly a joke, an example of hyperbolic and rhetorical speech that no reader familiar with the Twitter genre would have taken as stating provable facts. Keem explains that within the insular influencer world both Feitosa and Keem inhabit, "comedians, entertainers, gamers, and influencers often post salacious and sometimes-controversial mocking content about each other and others with the hope of generating reactions among those who follow them."

In support of this proposition, he submits Tweets where Feitosa himself appears to accuse Keem of domestic abuse, and online statements where Feitosa explains that "everything [he does] is a joke." Keem argues that, given his Tweet's placement within a war of words between these two influencers, his Tweet could not reasonably have been understood as conveying a factual assertion….

As noted above, on a motion to dismiss, a court is limited to a consideration of the pleadings. But because courts may resolve defamation claims as question of law if no reasonable reader or listener "could have reasonably understood the statement in the alleged defamatory sense," on motions to dismiss, courts examining the context of the statement sometimes look beyond the pleadings to determine whether a statement has the meaning attributed to it by the plaintiff. For example, "when the alleged defamatory statement is contained in a headline, the headline must be read in conjunction with the entire article." Similarly, when an allegedly defamatory statement is made as part of a television broadcast, courts will "examine the statement in context with the remainder of the news report to determine if it has the meaning attributed to it by the plaintiff."

But here, unlike the cases cited above, Keem does not point to a discrete publication like a complete news article or a full broadcast that this Court could consult to shed light on the meaning of the Tweet. Rather, Keem submits his own selection of tweets and a link to a podcast interview to support his version of the context this Court should consider.

Keem's submissions are far broader than what courts normally consider in assessing a statement's context, let alone what courts consider on a motion to dismiss. They risk depriving Feitosa of a fair adjudication by asking this Court to consider an incomplete record. This Court therefore declines to consider the documents Keem submits and will only consider the face of the complaint.

Considering the facts alleged in the complaint, a reasonable reader could have understood the Tweet as alleging provable facts about Feitosa: that he had been accused of grooming 12-15 year old girls for sex, that victims existed, that he had been approached for comment, and that he had declined to comment. Keem's motion to dismiss on the grounds that the Tweet is protected by the First Amendment therefore fails at this stage….

The court also concluded that the claims about "Def Noodles" could be plausibly alleged to be libeling Feitosa, and not just his YouTube persona.

Keem first argues that Feitosa has not sufficiently alleged that the Tweet was "of and concerning" Feitosa because the Tweet referred to "Def Noodles," Feitosa's YouTube persona, and not Feitosa himself. In support of this argument, Keem submits statements by Feitosa that his character wears cat ears, lensless glasses, and UCLA t-shirts to create a "whole like cat-boy cat-guy, whatever persona." Keem submits evidence that Feitosa has stated that Def Noodles is a "character, who's a fictional cat … who just doesn't exist." … [But] Feitosa alleges that "persons familiar with Plaintiff knew] and [understood] references to 'Def Noodles' as actually … referring to Plaintiff Dennis Feitosa." On his YouTube channel, he states, "[m]y name is Dennis Feitosa and Def Noodles is a show I created." He also alleges that "the viewing public do not view 'Def Noodles' as distinct from Dennis Feitosa." Further, in the Tweet, the statement "Def Noodles has allegedly groomed girls from ages 12-15," accompanies a picture of Feitosa. This Court finds these allegations sufficient to plead that the Tweet was "of and concerning Feitosa."

Congratulations to Heath J. Szymczak, who represented Feitosa.