The defamation lawsuit against MSNBC host Joy Reid will be losing its most legally provocative claim. On Tuesday, an attorney for the plaintiff suing Reid over social media posts informed the judge overseeing the case that an amended complaint would no longer include a claim pertaining to a retweet.
Reid is being sued by Roslyn La Liberte, who in a photo was seen in a MAGA hat and yelling at a high school student during a City Council meeting. Subsequently, that photo was put on Twitter and it went viral along with allegedly false word that La Liberte called the student a “dirty Mexican” and told him, “You are going to be the first deported.”
An activist’s tweet about La Liberte was retweeted by Reid, who sent the message to her 1.2 million followers.
The defamation case against Reid seemed destined to clarify law surrounding retweets.
In a pre-motion letter last week, Reid’s attorney John Reichman evoked 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.”
Setting up the argument that Reid’s retweet was immune from liability, Reichman wrote, “The complaint does not address Section 230 or why it would not apply here. But La Liberte will apparently attempt to argue that Reid was the first person to put the racial slurs ‘in La Liberte’s mouth.'”
Perhaps not. La Liberte could have attempted to argue that the retweet was an unprotected republication of a defamatory statement.
L. Lin Wood, attorney for La Liberte, provided her response in a letter to the judge yesterday. He wrote that the proposition that Section 230 provides absolute immunity “turns centuries of defamation jurisprudence on its head and provides the highest form of immunity to arguably the lowest form of communication.”
The attorney doesn’t stop there.
“Should such a common law rule become the courts’ majority view pending legislative review, it would be a very dangerous concept,” he added. “News outlets are not even afforded true absolute immunity for reporting on allegations made in public, civil, or criminal proceedings. Yet, under Ms. Reid’s interpretation, republishing allegations originally made on social media receive such absolute protection. Such a rule’s application to the circumstances of this case would be a gross miscarriage of justice….”
Nevertheless, Wood is backing down on this one claim.
“Notwithstanding the injustice, and facing the prospect of a California anti-SLAPP motion containing mandatory fee shifting, Ms. La Liberte has elected to amend her Complaint to remove the retweet prior to the filing of such a motion,” he writes. “To the extent that Ms. Reid intends to assert that all of her subsequent posts are immunized by the Act, Ms. La Liberte will oppose on the undisputed basis that the remaining posts are new, original content authored by Ms. Reid, which materially added to and created their own defamatory stings.”
As such, the case provides an object lesson in the power of the anti-SLAPP law, which is intended to curtail frivolous legal actions aimed at protected speech.
Elsewhere in the letter, Wood argues that the anti-SLAPP law shouldn’t be applied in this case as California allegedly has no vested interest in providing special protection to a resident of another state. Wood adds that the state anti-SLAPP statute shouldn’t apply in federal court because it is inconsistent with the Federal Rules of Civil Procedure. That’s a fight that has been somewhat of a crusade for Wood. On Nov. 8, in fact, another client of Lin — former hospital executive David Carbone — made oral arguments to the Eighth Circuit Court of Appeals as to why a Georgia federal judge was correct in not applying the state’s anti-SLAPP statute in a defamation lawsuit against CNN. (It’s a dispute we’ve predicted may be headed to the Supreme Court.)
Thanks to the prospect that Reid would have her legal bills paid by La Liberte, Wood is not taking any chance. Legal observers will have to wait for some future case to provide definitive word on whether retweeting something false is shielded.