The Volokh Conspiracy
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Alexis Wilkins' (FBI Director's Girlfriend's) Libel by Implication Suit Can Go Forward
From Wilkins v. Schaffer, decided yesterday by Judge Donald Middlebrooks (S.D. Fla.):
Plaintiff Alexis Wilkins has lodged a single defamation by implication claim against Defendant Elijah Schaffer, political commentator, comedian, and podcast host whose shows mix politics and current events, with a comedic, satirical style.
Plaintiff's claim is centered on an X-post drafted by the Defendant. The post at issue is caption-less but contains a photograph of Plaintiff alongside her significant other, Federal Bureau of Investigations (FBI) Director Kashyap "Kash" Patel. The post also "quotes" a distinct post, which in pertinent part, states that "Mossad sent female operatives deep into Iran-seducing top officials, infiltrating government surveillance networks, and carrying out sabotage missions."
In essence, Plaintiff argues that this post insinuates and spreads the false narrative that Ms. Wilkins is "an Israeli Mossad agent, spy, or 'honeypot,' who is only in a relationship with Kash Patel to spy on and manipulate the United States government." This insinuation is the core of Plaintiff's claim for defamation by implication….
[Under Florida law, d]efamation by implication arises, "not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication." …
Defendant suggests that "[b]ecause the expressed facts are literally true (Defendant reposted Plaintiff's authentic photograph in response to reporting about alleged Mossad agents), Plaintiff should make an especially rigorous showing that an ordinary viewer would understand the repost to affirmatively suggest Defendant intended or endorsed the alleged defamatory inference." This heightened standard is improper. Two literally true facts may nevertheless create a false interest. Defendant's characterization misunderstands applicable law. The Plaintiff need only allege facts that suggest "Defendant juxtaposed a series of true facts so as to create a defamatory implication. The inquiry turns on whether the 'gist' of the publication is false."
"[E]ven if the statements are defamatory by implication, a defendant is still protected from suit if his statements quality as an opinion[.]" Defendant's caption-less post lies within the gray zone between opinion and innuendo of a fact. Defendant argues that a caption-less repost of a true photograph of Plaintiff and Director Patel, in response to an ongoing thread about foreign influence cannot reasonably be read as a literal assertion that Plaintiff is an active Mossad agent committing espionage and treason, particularly where Plaintiff herself describes that implication as "inherently ludicrous."
However, context once again matters. Plaintiff alleges facts concerning Defendant's general postings about Israel's outsized influence over the United States. These allegations provide sufficient background to substantiate the innuendo allegedly asserted in the X-post-trending towards assertion of a fact rather than an opinion. For purposes of a Motion to Dismiss, this backdrop of Defendant's prior posts is informative of the affirmative suggestion or intent behind the alleged defamatory post…. "The [defamatory] language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference." … Defendant's posts, considered holistically, support Plaintiff's allegation that a viewer of the alleged defamatory post could reasonably draw the inference that Defendant is labeling Ms. Wilkins a "honeypot" and accusing her of infiltrating the U.S. government….
[And a]lthough I decline to definitively rule at this early stage whether Plaintiff can be adequately regarded as a general limited public figure, I find that even assuming Plaintiff is a general public figure, the facts alleged by Plaintiff meet the pleading requirement for actual malice….
Of course, this merely reflects the judge's conclusion that the plaintiff's allegations were plausible and legally sufficient. There will be more proceedings, and if the case goes to trial, the factfinder will need to ultimately decide how a reasonable reader would have perceived the post.
Wilkins is represented by Jared Joseph Roberts and by Jason Caldwell Greaves (Binnall Law Group).
