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April 01, 2012

Freedom of Speech: OMG, "Twibel" Claims? R U 4 Real?

Charles D. Tobin

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Can you imagine trying to tweet an argument supporting a motion to dismiss in a defamation action brought by, say, a restaurateur?

Pltf hz no COA. Opinions r protected if they dont contain verifiable fact. So in Vilardo v. Nolan, the court held the phrase “Ur golf swing is as graceful as an elephants” wasnt actionable; pachyderms dont hit the links. Likewise here saying the restaurants “pot roast tastes like dogfood” cant be verified—unless u really want to gross out a jury. Therefore my client wins.

All through school, we were taught to make our writing concise. Winnow out excessive use of adjectives. Make each point once, then move on to the next one. Active voice is shorter than passive voice.

Even now, CLE seminars tout tips to discipline lawyers to write with both force and brevity. And just look at the trend among professional groups—especially the American Bar Association—which jams our email inboxes with dozens of communications a week. Legal scholarship and commentary, as much as mainstream journalism, are clearly headed in the directions of shorter, faster, more mobile.

Are the courts ready for tweet-briefs? Do we need any more than 140 characters to get a cohesive legal thought across? Can a pithy short-message service text capture the essence of the 50 years of case law on what separates First Amendment opinion from actionable statements of false facts? Probably not. At least not for the judicial audiences we hope to persuade. They need to see the background facts, enough convincing precedent to steer the court, a well-worded poke to pierce through our opponent’s thin logic.

We are conditioned to think that a solid argument is built on a foundation of lots and lots of context. Heck, some of us strain to live within our jurisdiction’s 5- or 10-page limit for reply briefs, even when, much of the time, the document is pure rehash.

Perhaps this is why lawsuits brought against Internet publishers provide unique challenges for defamation courts and defense counsel. The growth of the Internet and other new media means more access to more audiences for more speakers. But not all individuals who post on the web have the time to hone their writing. Not all of them have the technical skill. Not all of them are linear thinkers. Not all of them provide context when they write.

Many lawyers reading this column will remember the dial-up days of the 1990s, when we had to explain terms such as Internet and Word Wide Web in our briefs. It has been fascinating to watch as judges, who now sit on the bench glancing down at their iPads, grapple to apply old defamation models to new media.

For me, a defining moment in Internet-libel jurisprudence came with my advance sheet containing the appeals court’s unpublished opinion in Agora, Inc. v. Axxess, Inc., 2001 U.S. App. LEXIS 6057 (4th Cir. 2001). The Fourth Circuit affirmed a district court’s ruling that an online publisher’s review of a ratings agency was not defamatory, as the offending statement was “based on disclosed or readily available facts.”

This reasoning, of course, recites garden-variety fair comment privilege law. See Restatement (Second) of Torts § 566 cmt. b. But the precise location of the “disclosed or readily available facts” made this decision stunning. The court found them by clicking on a hyperlink in the defendant’s publication. And it did this in ruling on a Rule 12(b)(6) motion to dismiss, where, typically, judges will only look to the four corners of the publication and the plaintiff’s complaint.

Wow—now there’s a group of judges who really appreciated the vision of the Internet as a tool for building a shared community of human thought.

The social media community presents different challenges for courts and different opportunities for First Amendment advocates. Twitter, Facebook, and LinkedIn are not always part of the seamless World Wide Web. They provide forums for random, untethered thoughts, often posted by speakers in multitasking moments on the go, with no embedded links and few building blocks of reasoning.

So far, “Twibel” cases—lawsuits arising from communications on Twitter—have met with mixed results:


  • A Chicago judge last year dismissed a libel lawsuit brought by a property company against a tenant who tweeted that the landlord “really thinks its OK” if she sleeps “in a moldy apartment.” According to a news report, the judge ruled that expression was too vague to support a defamation claim.
  • In March 2010, singer Courtney Love paid $430,000 to settle a libel lawsuit arising out of her tweet calling a fashion designer a “nasty, lying, hosebag thief.”
  • The creator of the “cookie diet” weight loss program has sued Kim Kardashian—who, as best I can tell, is famous simply for being famous—for tweeting that he was “lying” and “falsely promoting” that she was on his diet.
  • In October 2011, faced with an anti-SLAPP motion, a Lake Oswego, Oregon, doctor dismissed his lawsuit against a woman who, on Twitter, described his 2001 official reprimand for inappropriate dealings with a patient as “attempting to trade treatments for sex.”

In at least two aspects, libel-by-tweet and the like may pose less of a risk than claims involving other expressive media. As one author has pointed out, most social media audiences are finite groups of “followers” or “friends.” See Julie Hilden, “Should the Law Treat Defamatory Tweets the Same Way It Treats Printed Defamation?” Verdict (Oct. 3, 2011), The scope of a libel plaintiff’s alleged reputational injury by tweet may therefore be easier to define than the scope of alleged reputational injury by newspaper article or TV broadcast. And if defendants post a retraction on the same social medium, they will almost certainly demonstrate that they have reached the identical audience as the original posting.

But as we scale down our expressions on the Internet, do we also risk downsizing our First Amendment freedoms? IDK 4 sure. Do U?


Charles D. Tobin

The author, a senior editor of Litigation, is with Holland & Knight LLP, Washington, DC.