Cancellation Litigation: Alabama Court Partly Reinstates Lawsuit Over Getting Someone Fired for Tweet

Friday's Alabama Supreme Court decision in Flickinger v. King stemmed from a June 2020 Facebook post "apparently regarding the death of George Floyd" by Flickinger:

Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.

King then got in touch with Flickinger's employer, Wainwright, Pope & McMeekin, P.C. (a law firm at which Flickinger had worked 11 years) about the post. The firm threatened to fire Flickinger unless he resigned, which he did. He then sued (among others) King, alleging that King "had shared a 'counterfeit' social-media profile that appeared to show that Flickinger was making a controversial political statement on behalf of WPM":

According to Flickinger, the allegedly "counterfeit" social-media profile contained a professional photograph "appropriated" from WPM's Web site that, he said, he had never used on any of his personal social-media platforms as well as the name of Flickinger's employer, which, he maintains, he had "never advertised or shared in conjunction with any of his personal social media posts."

According to Flickinger, digitally merged with this "counterfeit" social-media profile were additional social-media posts appropriated from his personal social-media platforms that were critical of the mass nationwide violence that had been going on in the wake of George Floyd's death….

The court held that Flickinger's claim against King could proceed under a theory of tortious interference with a business relationship; Alabama follows the Restatement (Second) of Torts approach to the tort, under which such intentional interference can be actionable even without a showing that the defendant's conduct was independently tortious. (Many other states bar such liability unless the defendant's conduct was independently tortious, e.g., defamatory, threatening of violence, etc.; that is now the Restatement (Third) of Torts approach.)

The court first held there was sufficient evidence that King's communication to Flickinger's employer caused Flickinger's firing:

[T]he WPM partners were not monitoring Flickinger's social-media posts and had no knowledge of his social-media activity before King sent the George Floyd post to Wainwright. In addition, Wainwright admitted in his deposition that he "immediately" telephoned King after receiving the George Floyd post because he was "a little shook up," was "very concerned about [the WPM] firm," and was "thinking about damage control." Pope likewise contacted King "some few minutes … after [Wainwright] did" and was "upset" and "asked [King] what [WPM] should do about [its] reputation."

Thus, although the WPM partners later conducted their own research into Flickinger's other social-media posts, the evidence, when viewed in a light most favorable to Flickinger, indicates that they were considering terminating Flickinger's employment before they ever conducted that research. Indeed, Wainwright [Flickinger's immediate supervisor] testified that it was his receipt of the George Floyd post that prompted the WPM partners to "start looking to see what else was out there." Also, … we "cannot ignore the fact that the termination of Flickinger's employment occurred almost immediately after WPM was contacted by King."

Granted, … there is no evidence indicating that King recommended or suggested that the WPM partners terminate Flickinger's employment. However, … a defendant's acts in an intentional-tort case need not be the "proximate" cause of the plaintiff's harm, at least as that term is used in negligence cases. Rather, a defendant's acts may subject him to liability for an intentional tort if the acts "'were substantial factors in bringing about the harm,'" and "even very remote causation" may be a basis for imposing liability in such cases.

Viewed in a light most favorable to Flickinger, the evidence provides a basis upon which a jury could find that King's act of sending the George Floyd post to Wainwright was one of the "substantial factors"—if not the primary factor—"in bringing about" the WPM partners' decision to terminate Flickinger's employment. The fact that the WPM partners claimed that the decision to terminate Flickinger's employment was "theirs alone" and had not been recommended or suggested by King does not change the fact that King set in motion the chain of events that culminated with that decision….

The court also concluded that any defense that the interference with Flickinger's employment was "justifi[ed]" was for the jury:

[J]ustification is an affirmative defense to be pleaded and proved by the defendant. Whether the defendant is justified in his interference is generally a question to be resolved by the trier of fact. Whether a defendant's interference is justified depends upon a balancing of the importance of the objective of the interference against the importance of the interest interfered with, taking into account the surrounding circumstances…. Section 767 of the Restatement lists … several items that we consider to be among the important factors to consider in determining whether a defendant's interference is justified:

(a) the nature of the actor's conduct,

(b) the actor's motive,

(c) the interests of the other with which the actor's conduct interferes,

(d) the interests sought to be advanced by the actor,

(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

(f) the proximity or remoteness of the actor's conduct to the interference, and

(g) the relations between the parties….

W]hether King was justified in sending the George Floyd post to Wainwright is to be evaluated in light of [these] factors …, and, as noted, the evaluation of those factors "'is generally a question to be resolved by the trier of fact.'"

Finally, the court rejected a defense under § 772 of the Restatement, which provides that,

One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person

(a) truthful information, or

(b) honest advice within the scope of a request for the advice.

The court concluded that in this instance § 772(a) didn't apply because King's statement wasn't merely truthful information ("i.e., what Flickinger had undisputedly posted about George Floyd's death") but also included an untruthful element:

Flickinger alleged in his complaint that the King defendants had shared a "counterfeit" social-media profile that appeared to show that Flickinger was making a controversial political statement on behalf of WPM. Although Flickinger does not dispute that the statement in the post that was shared was his and was, therefore, truthful, he pleaded that the remainder of the post—coupled with the "counterfeit" social-media profile—falsely associated his political views with WPM.

The affirmative association of a potentially incendiary social-media post with the employer of the writer of the post could be relevant to a reader and would certainly be relevant to the employer. In fact, one of WPM's partners admitted to Flickinger that he "did not understand social media" and was not "on social media." It would be reasonable to conclude that he believed that readers of the post might make this false association. Thus, under these circumstances, we agree with Flickinger that the nature of this social-media post was in fact "false."

In an earlier decision dealing with the same litiation, the court concluded that King's alleged inclusion of Flickinger's social media profile and the firm's name wasn't actionable defamation, because:

[U]nder these circumstances, we agree with Flickinger that the nature of this social-media post was in fact "false." However, our caselaw makes clear that it is not enough for a statement to be "false," it must also be "defamatory." This Court has previously stated that "[t]he test to be applied [by the court] in determining the defamatory nature of an imputation is that meaning which would be ascribed to the language by a reader or listener of ordinary or average intelligence, or by a common mind." Writings — or, in this case, screenshots depicting images of writings — can be "defamatory" if they "tend[] to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." …

In order to adequately allege a claim of defamation, Flickinger must allege that the false association — i.e., that in making that post he was doing so as a representative of his law firm — is what brought him "into public hatred, contempt or ridicule" or "imput[ed] dishonesty or corruption" to him. Nowhere in his second amended complaint, however, does Flickinger allege that the "counterfeit" social-media profile associated with the post generated such outrage and hatred. Instead, it was the content of his post that he alleges generated such outrage and hatred. Thus, under these circumstances, Flickinger has failed to demonstrate that the "counterfeit" social-media profile associated with the post at issue amounted to defamation.

But though the falsehood here was not sufficiently for a showing of defamation, it was sufficient to reject the § 772(a) defense. And, more broadly, under the court's reasoning, it appears that an interference claim based on a cancellation attempt might proceed even if in the absence of a false statement—for instance, if the attempt consisted of unsolicited opinion, threat of withdrawal of business or boycott, and so on.