I don’t like Twitter. There, I said it. I know, I know, it’s so revolutionary, it’s bridging social gaps, it’s God’s gift to the information age, blah blah blah. That’s all well and good, but as far as I’m concerned it’s just an outlet for self-righteous blather. As if the whole world needs to sit up and hear about what YOU think about foreign policy or what YOUR opinion is about the new Britney Spears album. If I want your opinion, I’ll ask for it, but don’t be surprised if I don’t, because I probably don’t care.
Not only are most tweets nothing but pompous drivel, they are boring. Boring and utterly pointless. Take this random tweet I just found, after about one second of looking, for your reading pleasure: “Going to have a normal day today. A little cleaning, kids are playing outside, and maybe the park. Nothing too ambitious. I think we all need it.” Awesome.
Now, you probably think I’m a bitter cynic. You probably don’t like me. That’s your opinion and you’re entitled to it (but please, in the name of all that is holy, don’t tweet about it). And at this point, maybe your natural inclination is to say, “OK, James, but what makes you so special that I, dear reader, should care about you? After all, isn’t this whole article just a big long diatribe about your personal opinion?” Well, maybe a little. But it’s my article, so deal with it. Besides, it’s supposed to be ironic, so it’s funny, like a joke. More importantly, there’s a very real legal issue brewing beneath the surface here.
Lately, there has been a rash of defamation lawsuits based on allegedly defamatory tweets. This is not surprising given Twitter’s meteoric rise in popularity. For a recent example, look no further than the lawsuit just brought by Notifi Records CEO, Ira DeWitt, against former New Edition singer Johnny Gill for alleged defamation on Twitter. The singer is alleged to have attacked the reputation of DeWitt and her company by tweeting that she was “deranged” and “f**king nuts,” that Notifi was a fake company, and that she had a “hard on” for the producer of an unreleased Gill single.
There is no doubt that Mr. Gill’s alleged tweets aren’t very nice. But are they actionable as defamation? Probably not.
By law, a defamatory statement is defined as a false statement of fact. Statements of opinion are simply not defamatory, no matter how vulgar or offensive. Thus, for example, various courts have held that to be called a “stupid son of a bitch,” a “bleached blond bastard,” a “fascist” or “nothing but a Lee Harvey Oswald and a Jack Ruby” gives rise to no cause of action. If you want a really great list of insults, look no further than the case of Stepien v. Franklin. In that case, the plaintiff was the former president of the Cleveland Cavaliers and the defendant was the host of a radio sports talk show whose descriptions of the plaintiff included: “stupid,” “dumb,” “buffoon,” “nincompoop,” “scum,” “a cancer,” “an obscenity,” “pathological liar,” “egomaniac,” “nuts,” “crazy,” “irrational,” “suicidal,” and “lunatic.” Siding with the talk show host, the Ohio Court of Appeal held that each of these statements constituted opinion, not fact, and were therefore non-actionable. Note that this case is an invaluable resource for those needing tirades on the go. All insults come pre-packaged and court-approved.
There is, of course, no bright-line between opinion and fact. Indeed, it’s fair to say that many of the above statements would, at first blush, strike many people as being the latter. For example, to say a person is “stupid” is generally understood to mean he has a below-average IQ, which is either true or it isn’t. Likewise, whether a person ascribes to the politics of fascism, and is therefore a “fascist,” is ostensibly capable of objective verification. As such, most people would consider this a statement of fact. So why were these epithets found to be opinions? Simply put, because context matters. Because words are pretty much just guttural noises to which we, as a society, ascribe meaning, the defamatory meaning of statements cannot be determined standing alone. For example, when Jerry Falwell famously sued Hustler magazine — a case whose amazing facts involve a known pornographer, an outhouse, Jerry Falwell, and…well, just read it, OK? — the fact that allegedly defamatory statements about Falwell were published in the context of a parody ad in Hustler Magazine was directly relevant to the interpretation of those statements.
So what does this have to do with our case, which I’ve fondly come refer to as the “New Edition Twitter Hard On Case?” Quite a bit, actually. But before we can apply the above principles, we need to separate out Mr. Gill’s statements. Let’s start with the terms “deranged” and f**king nuts” — even if Ms. DeWitt could, theoretically, be factually, objectively insane, I think most people would agree that these are statements of opinion, whatever the context. The statement that Ms. DeWitt had a “hard on” for the song’s producers is also an epithet, and moreover, it’s kind of funny. There is no way a reasonable listener would believe that Ms. DeWitt actually had this condition, if for no other reason than it’s a biologically impossibility. It is the final statement, that Notifi was a “fake” company, that gives me pause. It would not be unreasonable to interpret this to mean that the company was not properly capitalized or otherwise not in compliance with the law. I, for one, personally interpret this to be a subjective statement about Mr. Gill’s unpleasant experience, not an objective claim about the company’s soundness. Nevertheless, I suppose reasonable minds could differ here, which in defamation law means everything.
For the sake of conversation, let’s assume that the “fake company” comment has the potential to be construed as a statement of fact. Does it matter that it was tweeted, rather than disseminated in a more traditional format? After all, we expect people to tweet about their opinions. We (well, not me, but maybe you) follow people on Twitter for precisely this reason — to find out what they’re thinking (or ate for breakfast, or bought at the store, or where they went to the bathroom, etc.). This expectation naturally affects our interpretation of the communication. That is, when you read a tweet, you have a natural tendency to construe it as opinion because you assume that the “tweeter” is writing off-the-cuff, spewing their thoughts at that moment. If, on the other hand, you saw the exact same statement in the news section of the Wall Street Journal, you would probably believe it had been researched and deliberated, and was being presented as an objective statement of fact. Under defamation law, these expectations make a difference. So, while not unlimited, the bar for finding a statement to be factual may well be much higher on Twitter than in traditional publications.
The “fake company” statement in the New Edition Twitter Hard On Case is, I think, a perfect example of where this might matter. Reasonable minds could differ as to the meaning of this statement. Consequently, it falls into a grey area in the fact/opinion dichotomy. That this statement was made on Twitter is, at the very least, relevant to determining which category it falls under.
Of course, before any of these interesting legal issues could be resolved in open court, the parties went ahead and settled amicably. No worries, though. In the Twitter-age of pointless opinions and impulsive invective, there will be much more where this came from, I’m sure of it.
In conclusion, if you want to bad-mouth someone, your best bet is to stick with really nasty mean-spirited vitriol that is incapable of objective verification. If, however, you cannot help but say something that might be considered a factual statement, maybe, just maybe, you will be in a better legal position if you say it on Twitter. Of course, I wouldn’t, but that’s because I think Twitter sucks.