By Aaron Mackey
Meritless defamation lawsuits can deter legal speech by forcing people to spend time and money fighting them. That is why courts must diligently protect people’s First Amendment rights by quickly dismissing claims that target people’s protected opinions.
That did not happen in a case on appeal to the U.S. Court of Appeals for the Ninth Circuit, Amin v. Winslow, and EFF filed a friend-of-the-court brief last month describing the potential danger to speech when courts let these cases linger.
A whistleblower alleges that the plaintiff, Dr. Mahendra Amin, performed unnecessary medical procedures on women at an Immigrations and Customs Enforcement detention facility. When news reports described the whistleblower’s allegations, author Don Winslow shared news stories about the allegations and criticized Amin over a series of tweets.
Amin’s lawsuit focuses on a single Winslow tweet that he alleges is defamatory. But the First Amendment requires courts to analyze the broader context surrounding any statement. The federal district court hearing the case disregarded this long-standing principle when it denied Winslow’s motion to dismiss the case, according to EFF’s brief.
California law protects people against lawsuits known as SLAPPs, or Strategic Lawsuit Against Public Participation. The state’s anti-SLAPP law allows for motions such as Winslow’s, which should allow for meritless defamation lawsuits to be dismissed quickly.
“The district court’s decision encourages meritless lawsuits against online speakers by allowing plaintiffs to strip disputed statements of their context and evade California’s robust anti-SLAPP statute,” EFF’s brief argues. “Yet the First Amendment requires courts to examine the fuller context of any alleged actionable statement to protect hyperbole and avoid chilling speakers.”
The brief explains why when it comes to online speech—particularly on Twitter—understanding the context of any alleged defamatory statement is crucial.
Twitter users speak in short bursts of 280 characters or less, often rapidly firing off multiple tweets on the same topic all the while referencing other users’ tweets, news articles, and other media. Twitter users expect this and know that generally, no single tweet contains the full story. Users know that they often will need to read multiple tweets from other users or otherwise try to learn more about any conversation occurring on Twitter.
The district court also did not fully grasp how Twitter’s specific features lead to rapid-fire exchanges and often require users to find additional information to fully understand conversations on the site. Nor did the court take account of the fact that the site is overwhelmingly caustic, the brief argued.
“For better or worse—but protected by the First Amendment all the same—Twitter is an irreverent and hyperbolic place.”
EFF’s brief asks for the 9th Circuit to reverse this erroneous ruling and remand the case.
Aaron works on free speech, anonymity, privacy, government surveillance and transparency. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law. Aaron graduated from Berkeley Law in 2012, where he worked for EFF while a student in the Samuelson Law, Technology & Public Policy Clinic. He also holds an LLM from Georgetown Law. Prior to law school, Aaron was a journalist at the Arizona Daily Star in Tucson, Arizona. He received his undergraduate degree in journalism and English from the University of Arizona in 2006, where he met his amazing wife, Ashley. They have two young children.
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