The Volokh Conspiracy
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Plaintiff "Spraypainted a Picture of an Ejaculating Penis and the Slur 'Fag' on the Sidewalk Leading up to the Jewish Resource Center"
Is it libelous to (1) accuse him of "antisemitism" and (2) accuse him (incorrectly) of having painted a swastika?
From Wednesday's opinion by Judge Susan K. DeClercq (E.D. Mich.) in Druskinis v. StopAntisemitism:
In 2023, John Druskinis was a student-athlete on the University of Michigan's ice hockey team. That August, he spraypainted a picture of an ejaculating penis and the slur "fag" on the sidewalk leading up to the Jewish Resource Center in Ann Arbor. As a result, he was kicked off the hockey team, and he later publicly apologized for his actions.
Soon after, StopAntisemitism, a watchdog organization that "exposes" people it views as engaging in antisemitic behavior, caught wind of the story. It posted on X.com (formerly Twitter) about what happened but got an important detail wrong: it reported that Druskinis had spraypainted onto the Jewish Resource Center not a penis or a homophobic slur, but swastikas.
Druskinis says that StopAntisemitism purposely and maliciously turned his life into a living hell through its false reporting. He therefore sued StopAntisemitism and its executive director, Liora Reznichenko (collectively "StopAntisemitism") for defamation, false-light invasion of privacy, tortious interference with business relations, and intentional infliction of emotional distress.
The court allowed Druskinis' defamation claim to go forward as to the swastika allegation:
StopAntisemitism effectively admits that, as a matter of literal fact, it was wrong about what Druskinis spraypainted that day. Even so, it argues that this error is irrelevant because it got the gist of the story right—that is, because its reporting was "substantially true."
Courts do not hold media defendants to a standard of literal and absolute accuracy in every detail of their reporting. Rather, a plaintiff may only pursue a defamation claim regarding statements that are "materially" false. Therefore, if the "gist" or "sting" of the article is true, the plaintiff cannot prevail.
The parties spill a lot of ink over whether it is "substantially true" that Druskinis spraypainted swastikas. But these arguments are premature at the motion-to-dismiss stage, as neither party has had the chance to flesh out the facts during discovery. What's more, the jury may ultimately have to resolve these arguments because under Michigan law, substantial truth (or material falsity—they are two sides of the same coin) is normally a question of fact. Of course, StopAntisemitism may argue at summary judgment that no reasonable jury could find its reporting materially different than what actually happened. But again, that is not a question for this Court to address at this stage….
But the court rejected Druskinis's claims as to other statements by defendants, which simply referred to his conduct as "antisemitic":
[L]abeling Druskinis's conduct as antisemitic is a protected opinion because such a claim is not "provable as false." Whatever biases or prejudices Druskinis may hold in his heart are not verifiable by the Court—or anyone else, for that matter. Nor does StopAntisemitism's opinion on antisemitism imply as an objective fact that Druskinis spraypainted swastikas….
Druskinis attempts to link all of StopAntisemitism's opinions to the presence of a swastika, effectively arguing that the term "antisemitic" should be read to mean "swastika" each time it is used. But this goes too far. The "antisemitism activity" to which StopAntisemitism refers could just as easily be the incident as a whole—namely, that spraypainting anything negative on the sidewalk leading up to the Jewish Resource Center is antisemitic. At the very least, reasonable people could disagree on that characterization. For instance, the Jewish Resource Center stated that although the vandalism "was offensive and disrespectful," it "did not include any overt anti-semitic symbols (like swastikas)." But nothing prohibits StopAntisemitism from expressing its own contrary opinion that the conduct was antisemitic. And there is no way for a judge or jury to definitively resolve that disagreement. There is no objective, underlying truth to root out, no way to prove that this opinion is false. At bottom, StopAntisemitism was free to interpret Druskinis's actions as antisemitic—swastikas or not. Accordingly, the defamation claim must be dismissed as to any opinions calling Druskinis's conduct antisemitic.
The court rejected Druskinis's false light invasion of privacy claim:
A false-light claim requires that the "publicity must lift the curtain of privacy on a subject matter that a reasonable man of ordinary sensibilities would find offensive and objectionable: supersensitiveness is not protected." Here, Druskinis's claim fails for a reason immediately clear from the name of the cause of action: there must be an invasion of a plaintiff's privacy, and no such thing happened here. See Cetera v. Mileto (Mich. Ct. App. 2022) (dismissing false-light claim because the speech at issue related to public, not private lives of plaintiffs). Indisputably, Druskinis acted in public, so StopAntisemitism's reporting lifted no "curtain" on his private life. That is true regardless of whether StopAntisemitism got all the details about the incident right. See Cetera (recognizing that postings about public matters, "even if false and unreasonable," did not implicate plaintiff's privacy).
The court rejected Druskinis's interference with business relations claim:
Druskinis says that he was stripped of his volunteer position as a youth hockey coach and that he was denied opportunities to transfer to other college hockey teams, with one team deciding not to sign him after StopAntisemitism's post, when it otherwise would have.
To state a claim for tortious interference with business relations, plaintiffs must allege: (1) a valid business relationship or expectancy; (2) the defendant's knowledge of the relationship or expectancy; (3) the defendant's intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damage to the plaintiff.
Here, the tortious-interference claim is too attenuated to survive. First, it is unclear whether Druskinis had a valid business expectancy because he does not allege whether he stood to gain financially from the prospect of transferring to play at another school. True enough, Druskinis says that "at least one college team [decided] against entering into contracts" with him, but he fails to explain whether those contracts would have provided him with a scholarship, stipend, or other monetary benefit. For the same reason, his volunteer position with a youth hockey program does not count as a business relationship. Druskinis responds that losing the volunteer position could entail a monetary loss because such positions often lead to business relationships in the future. But simply arguing that a relationship might lead to a business opportunity later is not concrete enough…. "The expectancy must be a reasonable likelihood or probability, not mere wishful thinking." …
Druskinis also fails to adequately allege StopAntisemitism's knowledge of these specific relationships or expectancies. Druskinis claims that it is "common knowledge that college athletes often transfer to play at other schools, and that they frequently try out for and are selected to play on professional sports teams," and so StopAntisemitism "needed no further information to know that those options were reasonably available to Druskinis." However, courts have required more than just knowledge of generalized business dealings, instead requiring knowledge of a specific business expectancy or relationship….
And the court rejected Druskinis's intentional infliction of emotional distress claim:
When a plaintiff's IIED claim is premised on the same statements as a defamation claim, the IIED claim is subject to the same First Amendment limitations as the defamation claim. The First Amendment may serve as a defense to IIED when the speech at issue touches on a matter of public concern. Snyder v. Phelps (2011). Here, StopAntisemitism's speech clearly touches on a matter of public, not private, concern. The prevalence of antisemitism is a matter of political and social concern to the community, and the vandalism of the Jewish Resource Center's sidewalk is of legitimate news interest. Druskinis's own allegations establish as much, describing how the story was picked up by numerous media outlets and spread like wildfire on the internet. For this reason, StopAntisemitism's speech is entitled to "special protection" under the First Amendment as related to the IIED claim, and so the claim must be dismissed.
{Note that this "special protection" does not necessarily extend to StopAntisemitism's allegedly false speech about the swastikas, which is why Druskinis's defamation claim may proceed. However, that protection does extend to bar the IIED claim because such a claim requires passing upon the "outrageousness" of the speech at issue. This is a problem because outrageousness "is a highly malleable standard with 'an inherent subjectiveness about it which would allow the jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression.'" Snyder…. Thus, while liability may be imposed for "false" speech dealing with matters of public concern in certain circumstances, it may not be for "outrageous" speech dealing with the same.}
