To Be or Not to Be Defamatory, That Is the Question?

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A picture says a thousand words.  However, it was not the picture, but rather a 63 character-long tweet that initiated a defamation lawsuit in March 2017 against actor James Woods.  Plaintiff Portia A. Boulger, a volunteer and pledged convention delegate for U.S. Senator Bernie Sanders, sued the Once Upon a Time in America actor for defamation over a tweet he published on March 12, 2016.  The tweet, accompanied by a picture of a woman believed to be Ms. Boulger giving the Nazi salute at the Chicago, Illinois rally for then-candidate President Trump, read “So-called #Trump ‘Nazi’ is a #Bernie Sanders agitator/operative?”  In a matter of hours, news reports revealed that the woman in the picture was in fact not Ms. Boulger, but actually a different woman by the name Birgitt Peterson of Yorkville, Illinois.  Even though Ms. Boulger was found to not be the woman in the photograph, Mr. Woods did not delete his tweet until many days later, prompting Ms. Boulger to file suit.

On January 24, 2018, the United States District Court for the Southern District of Ohio issued an order and opinion in favor of Mr. Woods concluding that the tweet was not defamatory.  In Ohio, to prove a claim for defamation a plaintiff must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered damages related to the publication, and (5) that the defendant acted with the requisite degree of fault.  The only element that Mr. Woods contested was whether his tweet was “a false statement of fact.”  The debate came down to whether Mr. Woods’ tweet, which ended in a question mark, was an actual question or a false statement of fact merely disguised as an innocent inquiry in an attempt to evade liability.

Although the Ohio court held that Mr. Woods’ tweet was a legitimate question, it is important to note, as the Court does in its opinion, that punctuation and grammar mistakes are not shields—putting a question mark at the end of a false assertion of fact will not automatically make sneaky defamers impervious to liability.  As early as 1913, the Supreme Court of Oklahoma in a case titled Spencer v. Minnick found that an article in a newspaper using a series of rhetorical questions was defamatory as it intended to convince the public that the plaintiff had prevented the enforcement of a liquor law for monetary gain.  According to the Court, “a man cannot libel another . . . and then escape liability through the use of a question mark.”

When determining whether a sentence ending in a question mark is defamatory, courts take into account a totality of the circumstances including the specific language used, whether the statement is verifiable, and the general context of the statement.  While courts will look at the punctuation as part of the context in which the statement is published, punctuation alone is not determinative and will not insulate an otherwise defamatory statement from liability.

A mere insinuation is as actionable as a positive assertion when the meaning is plain and the intent clear.  If someone has published false and inaccurate information about you by means of crafted interrogatories, do not let them hide behind their punctuation marks, contact the Defamation Lawyers at Hutcherson Law today.