Prominent MSNBC anchor Joy Reid lost a big appellate decision that will shape the rules of many cases involving free speech. Fighting this case made no sense and in the end it dealt a large blow to protections long relied upon by the media.
Last week, the Second Circuit Court of Appeals reinstated libel claims from a Trump supporter named Roslyn La Liberte. (Her real name apparently). In doing so, the Court decided that special laws enacted by states like California to protect First Amendment activity don’t apply in federal court.
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 sued after she retweeted an activist who had posted the above picture along with the caption, “You are going to be the first deported.” In a second post on Instagram, she wrote that the woman in the photo had screamed “You are going to be the first deported … dirty Mexican!” Subsequently, on Instagram and Facebook, Reid 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.”
Just one minor issue. The boy shown in the picture had given interviews where he said the picture is taken out of context and that Ms. La Liberte was being very civil and not offensive at all. Ms. La Liberte had also not made the racist remarks attributed to her.
Last September, Reid prevailed at a district court. The judge ruled that La Liberte was a “limited purpose public figure” because she had injected herself into public controversy around immigration. And, according to the judge, La Liberte couldn’t demonstrate that Reid acted with actual malice when she had wrongfully written that the woman had screamed “dirty Mexican.” Since public figures must demonstrate malice in order to prevail on libel claims, La Liberte’s suit was dismissed.
On appeal, La Liberte argued that the judge had wrongfully dismissed the suit and shifted attorney fees to the winner under California’s anti-SLAPP statute. Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws are intended to deter frivolous litigation aimed at thwarting First Amendment activity. After a complaint is filed, the defendant brings a motion to dismiss under the anti-SLAPP statute. Unless a plaintiff can convincingly show a likelihood of ultimately prevailing on his or her claims, the case is thrown out and the court can award legal fees to the winner. Media companies have relied on anti-SLAPP laws to protect themselves from constant litigation.
Under federal rules of civil procedure, to survive a motion to dismiss, plaintiffs must only show the plausibility — not the probability — of success on the claims. Under this lesser standard, escaping a suit for media companies becomes harder. So folks who want to hit media companies have been pushing the right cases to weaken anti-SLAPP statutes.
Justice Brett Kavanaugh and many conservative judges believe that the State laws wrongfully conflict with federal procedure. Appellate circuits throughout the nation are split on the question of whether federal judges may entertain anti-SLAPP motions and what standard is applicable. The Fifth, Eleventh, and D.C. Circuits have decided they may not while many of the other circuits (including California’s Ninth) have gone the other way. It’s an important issue that is almost assuredly destined for the Supreme Court.
In the La Liberte case, the Second Circuit decided that the easier Federal standard applies. This is important not just because its another court weighing in on the side against media but because its covers New York and along with California is arguably the most important court in media cases. So now one media giant (NY’s 2d Circuit) and another media giant (California’s 9th) are at odds. SCOTUS here we come! The Court stated:
“Reid urges us to follow the Ninth Circuit, which holds that California’s anti-SLAPP statute and the Federal Rules can exist side by side … without conflict. We disagree.”
After coming to the conclusion that SLAPP rules impermissibly regulate procedure, the Court tackles other issues including what the court determined to be the district judge’s erroneous conclusion that La Liberte is a public figure. The Court writes that it isn’t enough that she attended meetings about California’s immigration law and spoke up publicly and had her photo taken by news photographers:
“Thin as the findings are to begin with, the district court did not take into account the requirement that a limited purpose public figure maintain ‘regular and continuing access to the media,’”
The court noted that part of the reason for imposing an actual malice requirement on public figures is that they have alternative access to media channels enabling them to protect their reputations when someone says something false. “La Liberte plainly lacked such media access,” the court stated in its decision. What “limited public figure” ever has such access one wonders? Great, so now the stricter standard of actual malice will apply to even less people, making fighting SLAPP suits even harder.
But wait! There’s more! The Second Circuit then tackles whether Reid enjoys immunity under Section 230 of the Communications Decency Act, which affords tech services and users of tech services immunity for content posted by third parties. Reid argued that she merely retweeted the alleged defamatory statements. The appellate court disagreed with Reid’s lawyers and held that she wasn’t protected by the CDA.
Key to that conclusion is that the original tweet read “they yelled” at the teenager whereas Reid was the one who attributed the remark specifically to La Liberte. The court noted Reid “went way beyond her earlier retweet … in ways that intensified and specified the vile conduct that she was attributing to La Liberte. She accordingly stands liable for any defamatory content.”
To her credit Reid did take down the post when she received a cease and desist letter from La Liberte’s lawyers, but La Liberte decided to file suit anyway. In my opinion, that was when the case should have settled. There’s a saying in litigation “Bad cases make bad law.” And that’s what happened here. Reid should not have editorialized the original post by directly attributing the racist comments to Ms. La Liberte, especially when the youth involved said La Liberte was civil and not the one using the epithets. Also by adding her two cents, Ms. Reid was found to have lost the protection of Section 230 CDA. Because of this decision, the Second Circuit is now added to the list of courts that hold that State anti-SLAPP statutes do not have an impact on federal procedure. This triple whammy is going to hurt media companies – already under fire due to the current administration’s anti-media stance – for a long time as SCOTUS, once it gets one of these cases will likely decide the issue in line with this opinion.
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