Portia Boulger filed an action for defamation and invasion of privacy based on a tweet by James Woods, a well-known movie actor.
In March 2016, then-presidential candidate Donald Trump held a rally in Chicago, and that evening, the Chicago Tribune posted a photograph on its Twitter account of a woman at the rally, wearing a Trump T-shirt, and giving a Nazi salute. Twitter posted the Nazi salute photo along with a shot of Boulger and a caption identifying her as an “Organizer (Women for Bernie).” The two photos and caption were accompanied by the (false) statement, “The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.” Then Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” Woods had more than 350,000 Twitter followers.
The same day, multiple news outlets identified the woman in the Nazi salute photograph as Birgitt Peterson, a Trump supporter from Illinois. Woods didn’t delete his original tweet, but instead tweeted a follow-up: “Various followers have stated that the Nazi Salute individual and the #Bernie campaign woman are NOT the same person. #Chicago #Trump.”
A week later, Boulger’s attorney asked Woods’s attorney to have him delete his tweet and issue a retraction and apology. Woods deleted the tweet the next day, and posted three new tweets:
- “I have an opportunity to clarify something I challenged immediately when it hit Twitter. Portia A. Boulger was NOT the ‘Nazi salute lady.'”
- “Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so.”
- “Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates.”
In the time between Woods’s initial tweet and the tweet’s deletion, Boulger received hundreds of obscene and threatening messages, including death threats. Boulger said because of Woods’s tweet, she suffered “severe emotional distress including sleeplessness, episodes of reasonable apprehension of personal assault or attack, anxiety and depression.”
Boulger sued Woods, and the district court granted Woods’s motion for judgment on the pleadings, finding that his tweet could be interpreted as a question and not a statement of fact, and that the tweet was protected under Ohio’s innocent construction rule. Boulger appealed.
Chief Judge R. Guy Cole, Jr. wrote in his opinion for a Sixth Circuit panel that to establish a claim for defamation, a plaintiff “must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement.” Failure to establish any one element is fatal to a defamation claim.
Judge Cole said that in this case, only the first element was at issue. As such, the case “boils down to one question: does Woods’s tweet constitute a false statement of fact?”
The judge said that rather than determining whether a statement is protected opinion or actionable fact, the Court was asked to analyze whether Woods’s question constitutes a statement at all. Ohio case law indicates that even in a unique circumstance such as this one, the four-prong, totality-of-the-circumstances test is still the appropriate framework.
Under the first factor, a court must “ determine whether the allegedly defamatory statement has a precise meaning and thus is likely to give rise to clear factual implications.” Woods argued that because the specific language at issue was a question—and thus not likely to give rise to clear factual implications—his tweet wasn’t a statement of fact. Alternatively, he argued that his tweet wasn’t actionable because the word “Nazi” is “inherently imprecise and subject to myriad subject interpretations.”
The judge noted that Woods spent more time arguing that his use of a question mark inherently precluded his tweet from qualifying as a statement of fact. But the judge held that a blanket protection of defamation liability for any and all questions was inappropriate. Judge Cole said it was worth noting, however, that other circuits have opined that “it is generally settled as a matter of defamation law . . . that a question, ‘however embarrassing or unpleasant to its subject, is not accusation.'” Nonetheless, these holdings don’t amount to a per se rule that questions cannot be defamatory, he said.
Woods argued that the question mark showed that he intended the tweet to ask a question to his followers. However, Judge Cole found that Woods’s intentions were irrelevant—all that mattered to the court was the reasonable reader’s interpretation of his tweet.
The judge explained that some readers likely viewed the tweet as an insinuation that the woman in the Nazi salute photograph was Boulger. It seemed equally plausible, though, that other readers interpreted the tweet as posing a question. Judge Cole held that it would be “nearly impossible” to say that Woods’s tweet had a precise meaning as required by Ohio law. As such, the first factor weighed in favor of non-actionability.
The second factor considers whether the allegedly defamatory statement is verifiable. Judge Cole said in this case, it wasn’t apparent. As a result, the analysis moves to the context of the tweet. The general context is analyzed to determine “the larger objective and subjective context of the statement[,]” so that the alleged defamatory statements are not examined in isolation. Put another way, the court considers the “immediate context” in which the allegedly defamatory statement appears.
The district court held that “because the nature of a ‘tweet’ is fundamentally different from a statement appearing in the context of a longer written work,” and because most Twitter users don’t sit down and read a Twitter account in chronological order, there’s no “general context” to examine. While tweet “does not map neatly” into the analysis of general context, that doesn’t end the inquiry, the district court judge wrote. Instead, the court considered the allegedly defamatory statement in the context of Woods’s other tweets on that date.
A look at Wood’s Twitter feed from that date showed that although he posted news articles, his tweets also had his own “colorful” commentary. The judge said that this demonstrated that a reasonable reader of those tweets likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole, which are characteristics more likely seen in an opinion, not a statement of fact. As such, Judge Cole held that the general context could lead a reasonable reader to believe the tweet at issue wasn’t a statement of fact.
Courts must examine the type of medium at issue and consider how it would influence the reader’s viewpoint on whether a message is one of fact or opinion, the judge went on. At base, allegedly defamatory statements will ultimately fall somewhere on the spectrum “between paradigmatic statements of fact and paradigmatic statements of opinion.” The factors don’t definitively tip the scale in either direction, Judge Cole found. Thus, he turned to Ohio’s innocent construction rule. Under the rule, “a statement reasonably susceptible to both a defamatory and an innocent meaning must be construed, as a matter of law, to have an innocent meaning.” “It matters not that the defamatory meaning is the more obvious one. So long as the statement may reasonably be read to have an innocent meaning, the innocent construction rule commands that the statement be deemed non-defamatory.”
Judge Cole held that Woods’ tweet was reasonably susceptible to both a defamatory meaning—that Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent meaning—that Woods was merely asking his followers a question. Because the tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, it wasn’t actionable.
The judgment was affirmed.
Boulger v. Woods, 2019 U.S. App. LEXIS 5841 *; 2019 FED App. 0030P (**; __ F.3d __; 2019 WL 944834 (6th Cir. February 27, 2019)
— Kurt R. Mattson, JD, LLM, MLIS, President – Union Legal Research