Twitter, Defamation, and New York Times v. Sullivan

One of the new features of our world is social media and Twitter.  We now have the phenomenon known as a Twitter Mob, where a large number of people tweet or retweet negative information about a person. Such mobs are said to be quite upsetting and no doubt can do significant harm to a person’s reputation.

Unsurprisingly, Charles Murray, the co-author of the controversial book, The Bell Curve has been subject to such reactions on Twitter. In particular, various people on Twitter have referred to Murray as a white supremacist — see here and here. As anyone who knows Murray’s work should realize, however controversial his views about some very sensitive matters, he is not a white supremacist by the ordinary meaning of the term. As Murray himself has tweeted, a “white supremacist who married a Thai and argues that gentile whites are behind East Asians & Jews in IQ. Weird guy.”

If the claim that Murray is a white supremacist is an obvious falsehood that harms his reputation, then why is this allowed? Put differently, shouldn’t Murray be able to sue each of these persons for defamation?

The short answer appears to be that the constitutional law framework governing defamation law originated in New York Times v. Sullivan makes such a lawsuit problematic. Under Sullivan, a defamation claim cannot be successfully brought by a person who is a public figure unless the alleged false statement was made with actual malice — that is, with knowledge of its falsity or reckless disregard of whether it was false. It is not entirely clear what such recklessness is, but it is clear that it goes beyond mere negligence. Thus, if the speaker was merely negligent in failing to know that the statement was false, that is not enough to prevail.

Another problem for such a lawsuit is the distinction between statements of fact and statements of opinion. The Court has claimed that “there is no such thing as a false idea” and that statements of opinion are not actionable (Gertz v. Robert Welch).  While it is difficult to draw that distinction, it is possible that a court might conclude that the claim that Murray is a white supremacist is a matter of opinion. Further, the Supreme Court has sometimes treated claims about a person as not involving straightforward assertions of fact, but as “no more than rhetorical hyperbole.” (For a good example of this, see Greenbelt Publishing v. Bresler, treating the claim that someone engaged in blackmail as not asserting the actual crime of blackmail, but as rhetorical hyperbole). It is possible that the claim that Murray was a white supremacist might be treated as such rhetorical hyperbole.

While I am not an expert in defamation law or the constitutional restrictions on that law, in the end it does seem quite questionable that Murray would be able to easily recover against these tweets. Yet, to me, they seem to be both false and very damaging. People have different views about the Supreme Court’s Sullivan jurisprudence, but whether one likes it on balance or not, a significant cost of this jurisprudence is that it makes it so difficult for lawsuits to be brought against such slanders.

Reader Discussion

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on April 12, 2018 at 10:45:39 am

As a pro se plaintiff with years of experience litigating two defamation cases, I can respond to Mike Rappaport's remark that it is not clear what constitutes reckless disregard of the truth or falsity of a statement. For a deeper view on this aspect, with support on case law from various jurisdictions, please see the briefs I have filed in the (corrupt) Michigan Supreme Court [1], [2].

Knowledge of the falsity of the statements, reckless disregard of the truth or falsity, and negligence refer to alternative states of mind that the defamer had at the time he/she made the false and defamatory statements. In defamation law, first two are grouped under the term of actual malice.

Under the standard of reckless disregard, the circumstances (under which the defamer made the false statements) have a greater relevance than in negligence. Reckless disregard is proved by showing, for instance, that the defamer 'entertained serious doubts about the truth of the defamatory statements'. The defendant's delay and/or erraticism in making defamatory statements signals that he entertained those serious doubts when making the statements. Also the way the defendant formulated his defamatory statements could support the position that he entertained serious doubts. Additionally, the defendant's prior knowledge about the injured plaintiff aids in proving reckless disregard, as the defendant had no grounds to allegedly believe he (the defendant) spoke truthfully.

'Purposeful avoidance of the truth' also proves reckless disregard of the truth or falsity. Courts say that a failure to investigate truth/falsity does not by itself prove actual malice, but a Purposeful failure to investigate (e.g., a purposeful avoidance of the truth) does. In layman terms, it is like telling the defendant "Look, this shows the accurate information", and the defendant unjustifiably ignores that source and goes on to making defamatory statements. In my lawsuit against Al Pacha, I proved that he purposefully avoided the truth because I brought to his attention a judicial opinion that supports my position in the controversy he and I had. Despite that legal information being literally one mouse-click away from him, he chose to ignore that source and instead fabricated the fraudulent narrative he made to my prospective employer.

Another venue that proves reckless disregard is the defendant's reluctance or 'refusal to retract statements that have been proved to be false'. Whereas the record shows that defendant Al Pacha's narrative to the prospective employer is objectively verifiable as false, he remains reluctant to produce the retraction. Such baffling refusal to retract disproved statements demonstrates that (1) the defendant does not care about the truth, and that (2) he does not care about the detrimental impact that his inaccurate representations have on the defamed plaintiff. Hence why the defendant's refusal to retract qualifies reckless disregard of the truth.

Briefly, on the issue of statement of fact vs. statement of opinion ...
Without knowing the details about Murray and the allegations made about him, I doubt that he would be awarded recovery for the sole statement of him being a "white supremacist". On top of proving that the allegations are false, he would need to prove that the content of the statements describe specific facts, are made in a particular context, or constitute specific factual assertions.

[1] http://www.oneclubofjusticides.com/p/viggers-v-maria-de-la-merced-viggers.html
[2] http://www.oneclubofjusticides.com/p/viggers-v-pacha_74.html

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Iñaki Viggers
on April 12, 2018 at 16:49:10 pm

Interesting piece; and what about when these attacks are perpetrated against persons who are not celebrity or public figures? Do they have the same high bar to reach?

I suppose a clever defense attorney would in this case offer, that while the plaintiff initially may not have been celebrity, that he certainly could be considered one after his good name was slanderously repeated by 10,000 or 20,000 'Tweeter Mobsters'; a situation where the mob raises the bar and the victim gets to hang himself from it.

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Paul Binotto
on April 12, 2018 at 17:16:51 pm


Good to see you back. Hope health issues are resolved.

As for the nasty slanderers of the modern world, here is one for you, wherein a mother is exoriated for feeding her child a peanut butter and jelly sandwich at a Target store:


Then again, why does the mother require the *support* of social media types in the first place.
And yep, this Mom is now an internet celebrity!

What a wonderful world!

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on April 12, 2018 at 18:08:48 pm

Thanks, Mr. Gabe, and thank you for inquiring! Thankfully, I am feeling pretty healthy again.

WOW, who would've thought a PB&J would create such a sticky situation for this mom!? I understand the little darling, who even at the tender age of four is already quite articulate, when asked for her own thoughts about her mother's heinous act, was unable to utter even a single word in her mommy's defense; One witness was overheard characterizing the child's silence, "as if her mouth was stuck shut". Personally, I just think she knows which side her bread is buttered on...

Indeed, "What a wonderful world" - ha-ha!!

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Paul Binotto
on April 13, 2018 at 07:18:02 am

Raising that bar depends on whether (1) defamation is 'per se' and (2) the defamatory statements are privileged.

In a nutshell, defamation 'per se' means that the false statement clearly is detrimental to one's reputation regardless of the context (for instance "XYZ stabbed the baby multiple times"). Many jurisdictions establish that any of the following constitutes defamation 'per se':
- false accusation of felonies;
- a false imputation of moral turpitude; or
- false statements that prejudice someone in his profession or business.

In defamation per se, the plaintiff need not prove actual damages: they are presumed. But in order to be awarded significantly more than "nominal damages" (which courts usually quantify at $1), the plaintiff needs to prove that the defamer knew his statements were false or that he made them with reckless disregard of their truth or falsity.

The same occurs where the false statement is supposedly protected by a qualified privilege. The privilege is deemed abused when the defendant's knowledge of falsity or his reckless disregard is proved. At that point, the defendant's privilege is deemed abused. As you can imagine, so-called "clever" defense attorneys cling to the pretext of qualified privilege whenever possible.

In the case of absolute privilege, there's nothing the plaintiff can do. The law falls behind on this matter. In theory, there are other venues to punish perjury and other falsehoods made in a setting of absolute privilege. But in reality, those instances are hardly ever sanctioned (or even prosecuted). In my personal experience, judges don't even care to address the material, gross inconsistencies in the defendant's testimony or witnesses' testimony given under oath.

When (1) defamation is not 'per se', (2) no qualified privilege applies, and (3) the plaintiff suffered specific damages, negligence is the standard for a finding of a defendant's liability. The bar is not raised in that case, but recovery is limited to the specific, proved damages.

While some factors may render the injured plaintiff a public figure for purposes of defamation law, 'Tweeter mobsters' is not one of them. Otherwise, all defamers would systematically hire a click-farm from India to achieve what you outline.

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Iñaki Viggers
on April 13, 2018 at 07:33:58 am

Thank you very much for this clear and detailed explanation - I found it to be informative and enlightening!

Best, Paul

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Paul Binotto

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