On Thursday, an appeals court was presented with the opportunity to do something immense. A Donald Trump supporter urged the Second Circuit — which holds jurisdiction in New York, the media capital of the world — to rule that a law aimed at preventing frivolous libel suits (among other things) had no business showing up in federal court. On the other side, an MSNBC host urged the Second Circuit to essentially declare that everyone was free to repeat libelous things online. Based on the tenor of Thursday’s arguments in Roslyn La Liberte v. Joy Reid, neither side is likely to prevail on their grandest ambitions. Nevertheless, even if the Second Circuit rules narrowly, it will merely mean that a Trump supporter gets to investigate a cable TV personality’s political biases.
La Liberte sued over statements about the following picture….
La Liberte is the one in the MAGA hat. The scene is a city council meeting in California during debate over SB 54, aimed at limiting local law enforcement cooperation with federal immigration authorities.
Reid was hauled into court for a series of posts on social media. In the first, the MSNBC host retweeted an activist who had posted the above picture along with the caption, “You are going to be the first deported.” In the second, she posted to Instagram that the woman in the photo had screamed “You are going to be the first deported … dirty Mexican!” Subsequently, on Instagram and Facebook, Reid reached back to history and wrote, “Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.”
Last September, Reid prevailed at a district court. The judge ruled that La Liberte was a public figure because she had injected herself into public controversy around immigration. The judge further ruled that La Liberte had failed to plausibly demonstrate actual malice on Reid’s part. After all, the MSNBC host hadn’t entertained doubts about that activist’s account of the interaction between the woman in the MAGA hat and the teenager. As for the latter posts nodding to historical racial strife, well, the judge deemed that to be non-actionable opinion.
Now, the case is on appeal, and at Thursday’s hearing, both sides took a crack at getting the judges to go big.
Representing La Liberte, Taylor Wilson argued that the judge had wrongfully dismissed the suit and shifted attorney fees to the winner under California’s anti-SLAPP statute. That’s a wet stick of dynamite because according to Wilson and other critics, a state law shouldn’t regulate procedure in federal courts even if the intention is to deter speech-chilling lawsuits. Read more about why that’s such a big deal here.
The problem with Wilson’s argument is that in her decision last September, U.S. District Court Judge Dora Irizarry used the plausibility standard under federal rules rather than the likelihood-of-prevailing standard under California’s anti-SLAPP statute. Wilson contended she couldn’t really do this, but struggled to present a good reason why not. After Wilson was done arguing, the appellate judges each had time to ask questions. Crickets. No questions. Later, the judges appeared to accept that they were reviewing a case that had been dismissed under federal rules (specifically a Rule 12 motion).
John Reichman, Reid’s attorney, also took a hard swing and hit air.
Earlier on in this case, La Liberte had made a libel claim over the retweet, which raised the novel question whether retweets were protected under Section 230 of the Communications Decency Act of 1996, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.”
The claim over the retweet was withdrawn, but Reid nevertheless is arguing that her second post was also shielded by Section 230 because it essentially expressed the same thing as what the activist had stated. Although Reid beat La Liberte’s defamation suit, it was not on these grounds. The lower court rejected the CDA 230 argument, but Reichman asserts that Judge Irizarry applied the wrong test.
“Does a publication come within the protection of the Act if it is substantively similar to the prior post but not identical?” asked Reichman.
At Thursday’s hearing, no judge on this appellate panel had any interest in exploring that issue.
Instead, at least two of the appellate judges expressed sentiments indicative of the opinion that Judge Irizarry had prematurely dismissed the case.
“Some of your arguments seem to suggest that there are issues of fact here,” Judge Jose Cabranes told Reichman. “Isn’t one solution to remand to permit the discovery process to flesh out the facts?”
On the issue of actual malice, Judge Dennis Jacobs surmised that there could be internal memos at MSNBC indicating hostility on Reid’s part towards a Trump supporter or her interest in making an example of La Liberte. “If those existed, it would be telling,” he added.
“The complaint, what it was, was not that Ms. Reid had any information [indicating knowledge of falsity], but that she failed to investigate,” Reichman later told the panel. “That’s the basis of her claim of actual malice — not that she had memos. And case after case states that failure to investigate doesn’t establish actual malice. [La Liberte’s complaint] boils down to two things: She didn’t investigate and she had bias against Mr. Trump.”
If the judges don’t accept this argument and choose to revive La Liberte’s complaint, it could be for the same reason why Sarah Palin’s suit against The New York Times was reinstated. Namely, that the plaintiff should be afforded the opportunity to explore actual malice theories through fact-finding. That narrow holding opening a probe into MSNBC host’s anti-Trump bias wouldn’t set new law. But it would still likely generate headlines, perhaps showing the distance between legally precedential and politically provocative.