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Lawsuit Against Kathy Griffin Alleging She Tweeted to Get Man Fired Can Go Forward

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A quick summary of the factual allegations:

On April 24, 2021, Samuel Johnson sat down for dinner at a hotel in Franklin, Tennessee. Shortly after, a group of forty to fifty teenagers began taking prom pictures nearby. The boisterous teenagers apparently disturbed Johnson and other customers, prompting him to ask the chaperone to settle them down. One of the teens, who was wearing a red prom dress, overheard the request and confronted Johnson, all while his boyfriend filmed the interaction. The video is not a picture (or record) of clarity. But at a minimum, it captures Johnson saying that the student in the red dress "look[s] like an idiot."

And here's the decision from this Monday denying the motion to dismiss, by Chief Judge William Campbell (M.D. Tenn.) in Johnson v. Griffin:

One of the teenagers … posted [the video] to their personal TikTok account. TikTok removed the video from its site, but before it was removed, the video was downloaded and posted on other social media platforms, including Twitter, Reddit, and LinkedIn.

On April 26, 2021, Griffin republished the video on Twitter and stated "If this is Sam Johnson in Nashville, Tennessee, the CEO of @VisuWell, healthcare-tech-growth strategist, married to Jill Johnson where they may reside in Franklin, Tennessee, it seems like he's dying to be online famous." Plaintiffs allege that Griffin's tweet republishing the video caused it to go viral. After Griffin published her first tweet, Griffin responded to a comment posted by the teenager who videoed the incident and stated that she was "proud to be any [sic] ally" and "[l]et me know if there's anything I can do to help."

Later that day, Griffin published another tweet attaching two images of Mr. Johnson's face and writing: "Who is? THIS [sic] Sam Johnson of Franklin Tennessee [sic]?"

On April 26, 2021, VisuWell published the following statements, among others:

We unequivocally condemn the behavior exhibited by Sam Johnson in a recent video widely circulated on social media.

After investigating the matter and speaking to individuals involved, the VisuWell BOD has chosen to terminate Mr. Johnson from his position as CEO, effective immediately.

Later that same day, Griffin published another statement that "the nation will remain vigilant" and asked VisuWell if Mr. Johnson had been removed from his position on the Board of Directors. VisuWell replied to Griffin's post and stated "terminated." The next day, on April 27, 2021, VisuWell published another post that stated "Mr. Johnson is no longer employed by VisuWell in any capacity." Plaintiffs contend that VisuWell officially terminated Mr. Johnson's employment contract on April 26, 2021.

Plaintiffs allege that after Griffin posted the video, they received "countless online threats—including threats of rape and death—as a foreseeable and proximate result of Ms. Griffin's call-to-action to make Mr. and Mrs. Johnson 'online famous'."

The court allowed plaintiff's tort claims for tortious interference with contract/business relationship, intentional infliction of emotional distress, intrusion upon seclusion, prima facie tort, and negligence per se to proceed, concluding that the First Amendment didn't preclude such liability:

While speech about public concerns is often entitled to "special protection," for matters of purely private significance, First Amendment protections are "often less rigorous." Snyder v. Phelps (2011).

Here, Griffin seeks dismissal of Plaintiffs' tort claims on the basis that her speech was a matter of public concern. Specifically, without explaining how or why, Griffin asserts that her social media statements ["]unquestionably addressed a matter of public concern [and are therefore] entitled to "special protection" under the First Amendment." …

Griffin then relies on Higgins v. Ky. Sports Radio (6th Cir. 2020) to support her First Amendment argument…. The Higgins court defines a "public concern" as "'[t]he subject of legitimate news interest' or 'a subject of general interest and of value and concern to the public.'" Further, "[n]o bright line separates [public from private concerns]. Courts instead look to decisions as guideposts, assessing how the 'content, form, and context' of the speech compare to the speech at issue in other cases 'as revealed by the whole record.'" The court then provided a detailed explanation as to why commentary about referees in public sports competition has long been viewed as a matter of "public concern" in this nation's history….

Turning to this case, accepting Plaintiffs' allegations as true, Griffin's public statements did not involve a subject of "legitimate news interest" or one of "concern to the public." Instead, Plaintiffs allege not that Griffin made false or defamatory statements, but rather that Griffin provided commentary about Mr. Johnson resulting in damages under a variety of tort theories….

Here, Plaintiffs allege that Griffin caused an edited video clip to "go viral" and added her own commentary; as noted above, the clip involved interactions between Mr. Johnson and teenage prom-goers in a Franklin, Tennessee hotel lobby. Plaintiffs allege that the video clip was removed from the original social media platform, TikTok, only to be included later by Griffin's Twitter account, along with her commentary.

This case is different from Higgins in several respects. Higgins involved a radio station show commenting about a college basketball referee's performance in a high-profile tournament game; this case involves a non-media person's comments about an interaction among non-public figures in a hotel lobby. As alleged by Plaintiffs, but for the teenagers uploading a video clip and Griffin's re-publication of that clip, this interaction among patrons at a business would have received little-to-no notice. And as the Higgins court noted, the person sued for her speech cannot make the subject of the speech a public figure—or a public concern—by that person's own conduct….

My view is that such speech should be constitutionally protected, whether or not it's on a matter of "public concern"; among other things, I think courts have been highly inconsistent in drawing the public/private concern line (see, e.g., pp. 199-208 of this article).

I think liability can be imposed for speech that falls within a First Amendment exception, such as for certain kinds of false statements about particular people (to oversimplify slightly), solicitation of illegal conduct, true threats of illegal conduct, and the like. But simply calls to boycott people, socially ostracize them, or get them fired should be constitutionally protected. Compare NAACP v. Claiborne Hardware (1982), which held that the First Amendment protected publicizing the names of black residents who declined to go along with a NAACP boycott of white-owned stores (even though this was aimed at causing social ostracism, and also foreseeably caused some violence against the residents).

Nonetheless, the court doesn't share my view on this; and see also Flickinger v. King (Ala. 2023) and Manco v. St. Joseph's University (E.D. Pa. 2024), which are in some ways consistent with the court's analysis above. A couple of other law professors and I are cowriting an article (tentatively called Protest and Public Pressure Torts) that discusses such tort law claims, as well as ones stemming from in-person protests. In any event, this seemed like an interesting and potentially important decision.