The Volokh Conspiracy

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Free Speech

$1.1M Libel Award to Drag Performer Who Had Been Accused of Exposing Himself


From the Couer D'Alene/Post Falls Press (Kaye Thornbrugh) yesterday:

The jury found that blogger Summer Bushnell defamed Post Falls resident Eric Posey when she accused him of exposing himself to the crowd while he performed in drag at the Coeur d'Alene City Park bandshell in June 2022….

The day of Posey's performance, June 11, 2022, Bushnell posted a video of herself discussing the mass arrest of Patriot Front members near City Park, as well as footage from Posey's performance.

"Why did no one arrest the man in a dress who flashed his genitalia to minors and people in the crowd?" she said in the video. "No one said anything about it and there's video. I'm going to put up a blurred video to prove it."

The next day, Bushnell published an edited video she had received from local videographer Jeremy Lokken, which included a blur over Posey's pelvis. Bushnell told others that the blur concealed "fully exposed genitals" and urged people to contact police….

City prosecutors ultimately declined to file charges and stated publicly that the unedited video showed no exposure….

Attorney Colton Boyles, … maintained that Bushnell's "honest belief" is that Posey exposed himself, though she admitted on the witness stand that she never saw the "fully exposed genitals" she described to others….

The awarded consisted of $926K in compensatory damages and $250K in punitive damages, based on a finding "that Bushnell knew her allegations were false when she made them or that she made the accusations with 'reckless disregard' for the truth."