From La Liberte v. Reid, decided today by the Second Circuit (in an opinion by Judge Dennis Jacobs, joined by Judges Amalya Kearse and Jose Cabranes):
Plaintiff Roslyn La Liberte spoke at a 2018 city council meeting to oppose California’s sanctuary-state law; soon after, a social media activist posted a photo showing the plaintiff with open mouth in front of a minority teenager; the caption was that persons (unnamed) had yelled specific racist remarks at the young man in the photo. {“‘You are going to be the first deported’ [and] ‘dirty Mexican’ [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast.”}
Defendant Joy Reid, a personality on cable television, retweeted that post, an act that is not alleged to be defamatory. The defamation claim is based on Reid’s two later posts: her June 29 post showed the photograph and attributed the specific racist remarks to La Liberte; her July 1 post, to the same effect, juxtaposed the photograph with the 1957 image of a white woman in Little Rock screaming execrations at a Black child trying to go to school. {[Reid wrote,] “It was inevitable that this [juxtaposition] 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. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove”}
The teenager who was photographed with La Liberte soon after publicly explained that La Liberte did not scream at him and that they were having a civil discussion. La Liberte sued Reid for defamation in the United States District Court for the Eastern District of New York….
The Second Circuit held:
[1.] The California anti-SLAPP statute (which provides for early dismissal of various libel claims) doesn’t apply in federal court, because it conflicts with the Federal Rules of Civil Procedure. This deepens an existing circuit split on this important procedural question.
[2.] Reid is not immune under 47 U.S.C. § 230, because she is being sued for her own statements, not for the statements of third parties (such as of the social media activist).
[3.] La Liberte isn’t a “limited-purpose public figure,” and thus can recover compensatory damages based merely on a showing that Reid negligently erred, without having to show that Reid knew her statement was false or at least likely false (what libel law misleadingly calls “actual malice”):
The district court ruled that La Liberte was a limited purpose public figure on the California sanctuary-state controversy, and dismissed her claim as to the June 29 Post for failure to plead actual malice.
There are two kinds of public figures. “The all-purpose public figure … has achieved such pervasive fame or notoriety that he or she becomes a public figure for all purposes …. The limited purpose public figure … voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.” No one argues that La Liberte is an all-purpose public figure; the question is whether she became a limited purpose public figure with respect to California’s sanctuary-state law (SB 54), that is, did she “thrust [herself] to the forefront” of the controversy, “invite attention and comment[,] … [and] assume special prominence in [its] resolution.” Khawar v. Globe Int’l, Inc. (Cal. 1998). The district court answered affirmatively because La Liberte “attended and spoke about SB 54 at multiple city council meetings” and “appeared in a photograph in the Washington Post about the SB 54 controversy” one month before the Simi Valley Council Meeting.
That is not nearly enough. 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.” One reason for imposing the actual malice burden on public figures and limited purpose public figures is that “[t]hey have media access enabling them to effectively defend their reputations in the public arena.” We have therefore made “regular and continuing access to the media” an element in our four-part test for determining whether someone is a limited purpose public figure. Contemporary Mission, Inc. v. New York Times Co. (2d Cir. 1988). The California cases cited by the district court similarly turn on media access.
La Liberte plainly lacked such media access. The earlier photograph, which showed her conversing, was in a Washington Post photo spread of attendees at an SB 54 protest. The article did not name La Liberte, let alone mention her views. The single caption described everyone depicted as “[s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los Alamitos City Hall.” Such incidental and anonymous treatment hardly bespeaks “regular and continuing access to the media.”
Nor does La Liberte’s participation at city council meetings. La Liberte is said to have “testif[ied] eight times around the state”; but Reid does not identify instances in which the media singled out La Liberte’s participation as newsworthy. Nor does speech, even a lot of it, make a citizen (or non-citizen) fair game for attack. Imposition of the actual malice requirement on people who speak out at government meetings would chill public participation in politics and community dialogue.
True, La Liberte received media attention. Reid emphasizes that La Liberte appeared for a television interview after Vargas published his tweet but before Reid’s posts were published. However, media access that becomes available only “after and in response to” damaging publicity does not make someone a public figure. By the time of the interview, the Photograph had gone viral, along with accusations that La Liberte had screamed vile racist remarks at a child. The interview was “only the media access that would likely be available to any private individual who found himself the subject of sensational and defamatory accusations.” “If such access were sufficient … , any member of the media … could confer public figure status simply by publishing sensational defamatory accusations against any private individual.”
It makes little sense to deem La Liberte a limited purpose public figure when she stepped forward solely to defend her reputation. People become limited purpose public figures only when they “voluntarily invite[ ] comment and criticism” by “injecting themselves into public controversies.” La Liberte, however, did not use the interview to inject herself to the forefront of the sanctuary-state controversy; she was pulled into a spotlight. Her experience suggests why the Supreme Court has only hypothetically recognized the notion of an involuntary public figure. {The Court acknowledged the possibility of becoming an involuntary public figure but cautioned that “the instances of truly involuntary public figures must be exceedingly rare.”}
Since La Liberte was not a limited purpose public figure, the district court erred by requiring her to allege actual malice, and her claim as to the June 29 Post should not have been dismissed for failing to do so. On remand, the district court may assess whether La Liberte adequately alleged that Reid acted negligently with respect to that post, the standard for private-figure plaintiffs.
[4.] The court also concluded that the July 1 Post contained factual assertions that could form the basis for a libel lawsuit, and not just opinion:
“[A]ccusation[s] of concrete, wrongful conduct” are actionable while “general statements charging a person with being racist, unfair, or unjust” are not. … [For instance, in an earlier case,] a press release and leaflets discussing a company’s termination of immigrant workers were actionable because they did not “merely accuse [the company] of being ‘racist’ in some abstract sense.” Rather, the press release “contain[ed] language which expressly accuse[d] [the company] of engaging in racist firings,” and the leaflets “refer[red] to [the company’s] conduct as ‘racist and discriminatory abuse against Latina women immigrants.’ “
A reader could interpret the juxtaposition of the Photograph with the 1957 Little Rock image to mean that La Liberte likewise screamed at a child out of racial animus—particularly in light of Reid’s comment that “[h]istory sometimes repeats.” That interpretation is bolstered by Reid’s description of the white woman in the Little Rock photograph as a “person screaming at a child, with [her] face twisted in rage” and Reid’s comment that it was “inevitable” that the photos would be juxtaposed. Reid thus portrayed La Liberte as a latter-day counterpart of the white woman in 1957 who verbally assaulted a minority child. … Reid “did not merely accuse [La Liberte] of being ‘racist’ in some abstract sense.” Rather, her July 1 Post could be understood as an “accusation of concrete, wrongful conduct,” which can be proved to be either true or false. That makes it potentially defamatory….
Since … La Liberte adequately alleged negligence, the standard for private-figure plaintiffs[, h]er claim as to this post should proceed to discovery.
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