8:41am PT by Eriq Gardner
Here's the "MAGA" Libel Dispute Worth Everyone's Attention (No, Not the Covington Teen)
No offense to Nick Sandmann, the Covington Catholic student who is experiencing a surge of newfound attention — including from President Donald Trump — after a Kentucky federal judge on Monday reconsidered dismissal of a defamation suit against The Washington Post. Sandmann can now move forward on his claim that his reputation was tarnished by reports he “blocked” Nathan Phillips at a Native American protest in the nation's capital last January. But when it comes to the misconstrued actions of someone in a "MAGA" hat, the case we have our eye on is not Sandmann's, but rather Roslyn La Liberte's.
On Sept. 30, MSNBC's Joy Reid beat a defamation suit brought by La Liberte. Until now, the decision has gone unreported in the press. And that's somewhat hard to believe, considering the lawsuit attracted scrutiny in its early days and presented incredibly fascinating legal issues about speech on social media. But it's not over. On Tuesday, La Liberte filed an appeal that may eventually make waves.
Here's a quick review of what triggered the lawsuit.
On June 25, 2018, La Liberte attended a city council meeting in Simi Valley to voice her opinion about California Senate Bill 54, a measure intended to limit local law enforcement's cooperation with federal immigration authorities. During a break, she was approached by a 14-year-old, and a photographer snapped this picture:
A few days later, an activist named Alan Vargas tweeted the photograph and seemed to suggest that what was being yelled at the boy included, "You are going to be the first deported... dirty Mexican."
Joy Reid retweeted. It went viral.
Then, the MSNBC host posted the photo to her Instagram account with the caption, "He showed up to rally to defend immigrants . . . She showed up too, in her MAGA hat, and screamed, 'You are going to be the first deported'... 'dirty Mexican!' He is 14 years old. She is an adult. 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."
Except that's not exactly what happened. The boy in the photograph gave an interview to a local TV station where he stated La Liberte was trying to keep things "civil." The next day, La Liberte's son emailed Reid a link to the interview and advised her characterization was inaccurate. The following day, he tried again.
Nevertheless, Reid again posted the photo — this time on Instagram and Facebook — alongside a photograph of protestors in Little Rock, Arkansas, in 1957 with this caption: "It was inevitable that this image would be made. It’s also easy to look at old black and white photos and think: I can’t believe that person screaming at a child, with their face twisted in rage, is real. B[ut] everyone one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove."
After La Liberte filed her suit, the claim that Reid's retweet was defamatory started gathering attention from legal observers who noted that it wasn't particularly settled whether retweets could constitute an unprotected republication of a defamatory statement. What about Section 230 of the Communications Decency Act, 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"? Does that shield users on Twitter from liability over what they retweet?
La Liberte subsequently pulled her claim over the retweet, focusing on the other social media posts.
But that didn't end the intrigue.
"La Liberte belatedly recognized that this claim [over the retweet] was barred by Section 230," wrote Reid's lawyers in a motion to dismiss. "La Liberte should have recognized that Section 230 also immunized the other Publications... A republication does not have to be verbatim to obtain the protection afforded under Section 230; it has to be materially different from a prior publication to trigger liability."
In her Sept. 30 decision, U.S. District Court Judge Dora Irizarry ruled that Section 230 did not bar plaintiff's claims.
The judge referred to the allegation that Reid had "altered" what Vargas had originally tweeted. The activist attributed "dirty Mexican" to what "they" had called the boy; Reid was "the very first person to put [racial slurs] in [La Liberte's] mouth."
So how did the MSNBC host beat the defamation claims anyway?
Contrary to the expectation of some legal experts consulted by The Hollywood Reporter upon the filing of the lawsuit, the judge deemed La Liberte to be a limited purpose public figure instead of a private figure.
She "injected herself into the public controversy," wrote the judge. "The Court takes judicial notice of the fact that Plaintiff attended and spoke about SB 54 at multiple city council meetings around the State of California."
Given that she was deemed to be a public figure, La Liberte had to show Reid acted with actual malice — that is, knowledge of falsity or reckless disregard for the truth. That wiped out at least the claim over Reid's first Instagram post.
"The June 29th Post was based,at least, in part on the initial account of the interaction as stated by Alan Vargas," states the opinion. "However, the Amended Complaint is void of any allegations that Defendant knew or could infer that Vargas’ account of the interaction was inaccurate. Thus, there is no indication that Defendant had any serious doubts about the veracity of the information used in creating the June 29th Post."
And what about Reid's Instagram and Facebook posts a couple days later? The ones that came after La Liberte's son objected to Reed? Those latter social media posts may have been reckless, but the judge finds a different reason to toss claims related to them.
"Here, taken as a whole, the July 1st Posts are nondefamatory opinions," continues Izirazzy. "According to the Amended Complaint, the July 1st Posts accuse Plaintiff of yelling racial slurs at the boy at the Council Meeting. However, the July 1st Posts never mention racial slurs nor do they identify Plaintiff. In sum, the July 1st Posts make no factual allegations about the interaction between Plaintiff and the boy. The caption states that, among other things, the image was an inevitability and that history repeats itself, which are statements that cannot be proven false. Additionally, contrary to Plaintiff’s argument, the juxtaposition of the photographs does not 'make clear that [Plaintiff] is alleged to have engaged in specific racist conduct akin to that demonstrated during desegregation.' It is not apparent that the subjects of either image are engaging in the specific racist conduct at issue, namely uttering racial slurs... ."
And the judge didn't merely dismiss La Liberte's complaint for failing to set forth provable facts necessary to sustain a viable defamation claim.
No, this New York federal judge decided that it was perfectly appropriate to strike the suit under California's anti-SLAPP statute, which is meant to deter frivolous actions aimed at impeding public participation.
Meaning, La Liberte shows up at a public meeting to debate public policy. She becomes a public figure who a judge decides can't show actual malice after a journalist accepts the word of a tweet at face value. And her effort to go to court over how she was characterized participating at this meeting is deemed as interfering with this journalist's First Amendment rights.
Now, pursuant to California's anti-SLAPP statute, La Liberte has to pay Reid's attorneys fees and costs.
The full opinion is here and below.
As mentioned above, a notice of appeal was filed Tuesday. The Second Circuit should have a lot to chew on.
La Liberte is represented by attorney L. Lin Wood, who notably, is pursuing Elon Musk in a defamation case after the Tesla CEO called someone a "pedo" on Twitter.