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Nearly 50 years ago, the United States Supreme Court established that public figures must prove actual malice in order to recover damages for libel. What the high court couldn’t foresee was the invention of Twitter and how celebrities like Courtney Love would use social media.
On Friday, Los Angeles Superior Judge Michael Johnson presides over a summary judgment hearing in a defamation lawsuit against the colorful rock star. The judge could possibly hand down the first ruling holding a celebrity liable for a tweet or do something different — for example, declare that a statement intended as a “direct message” on Twitter that was accidentally published to hundreds of thousands of followers can’t rise to malice.
The tweet in question came by Love in June of 2010. It read:
“I was fucking devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote.”
The tweet was two years in the making.
In 2008, amid a financial meltdown in the world’s markets and a good deal of public discussion on how banks had precipitated the crisis through shaky mortgage deals, Love became convinced that a fraud had been perpetuated by the moneymen on the estate of Kurt Cobain, the late Nirvana frontman and Love’s husband.
Love’s transactional attorney introduced the singer to Holmes. The San Diego-based lawyer was hired to review the evidence of fraud and prepare a lawsuit. The following year, Holmes was quoted in the press as saying, “I have never seen such greed and moral turpitude. This case is going to make Bernard Madoff look warm and fuzzy.”
But a lawsuit alleging corruption in the management of the Kurt Cobain estate never followed. According to Holmes, Love failed to provide her with tens of thousands of documents, cut off communications and terminated her before she could draft a complaint. Love tells a different story, saying that she implored her attorney to fulfill her promise and prosecute the case but that Holmes responded that she was “too busy.”
Whatever really happened, it became the setup for Love’s infamous June 2010 tweet and the subsequent defamation lawsuit.
The plaintiff is now pushing for a judge’s summary adjudication. Because Holmes is a limited purpose public figure, she must show that Love acted with malice.
“There can be no better evidence of actual malice than a defendant admitting that she did not believe that the defamatory statements she is accused of making were, in fact, true,” says a memorandum submitted by Holmes’ law firm. “Here, Love has admitted facts that prove she knew her defamatory Statements were false when she made them. Simply, she knew that Holmes did not abandon her, was not bought off and that nobody got to her because Love knew that she had ‘let Holmes go as [her] attorney for not performing.’ “
Love, of course, offers a different perspective.
In her own legal documents, Love says the tweet was never intended to be public, and upon learning it wasn’t a private message she immediately removed it. She denies admitting the falsity of her statements.
“For some reason, Plaintiffs believe…that being ‘bought off’ and ‘not performing’ are mutually exclusive concepts,” says Love’s opposition papers. “In actuality, being ‘bought off’ can explain a lack of performance.'”
Love believes that Holmes isn’t entitled to summary judgment because there are still genuine issues of facts to be sorted, including whether the tweet was substantially true and what Love’s state of mind was when she composed the tweet. Contrary to having malice, Love’s court papers say the singer had reason to believe someone had gotten to the attorney, given “Holmes’ representations to Love that her computers had been hacked, that money had disappeared, and that she was physically accosted in a parking lot.”
If all that isn’t enough, there’s more parsing of a celebrity’s tweet and what it conveys to the reading public.
According to Love:
“Given Holmes’ repeated history of speaking to the national media on Love’s behalf, as well as her complete lack of production and far-fetched excuses as to why, clearly the entire Twitter Posting was hyperbole making light of Holmes’ constant attention-seeking, and not a statement of fact. This is why Love jokingly told her assistant, @FairNewsSpear, ‘perhaps you can get a quote.’ The omitted portion proves that what Love wrote as a whole was satirical, not factual.”
According to Holmes:
“In fact, by proposing that the reporter ‘get a quote,’ Love suggested that her accusation was factual and verifiable. This is quite the opposite of a hyperbolic statement.”
On Friday, Judge Johnson gets to weigh in. A trial has been scheduled for Jan. 13. A jury could be tasked with figuring out the best way to read Love’s tweet, or, if defamation has been already established by the judge, what damages are incurred on a statement that is tweeted and then re-tweeted. The judge also has to figure out how much of Love’s other conduct and tweets — some of which have compelled more litigation — are going to be heard by a jury.
Unfortunately, about the only thing that seems certain is that Love won’t get to live-tweet the proceedings.
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