Can you be sued for your retweets?
By: Billy Easley II, senior policy analyst for Americans for Prosperity
“Retweets are not endorsements” is a commonly understood fact of life on Twitter. But what if you retweet libelous or defamatory content? Could that retweet expose you to legal liability? According to the Second Circuit’s decision in Liberte v. Reid this week, it depends on whether you add your own defamatory commentary to the retweet. This decision and the hodgepodge of conflicting state and federal laws on digital free speech online needs congressional review. Congress must pass a new law that fully protects free speech online.
This case is a textbook example of the dangers of social media mobs. In 2018, Roslyn La Liberte attended a city council meeting to oppose California’s sanctuary city law. While she was there, a photo was taken of her that made it appear that she was harassing a Hispanic teenager. An activist tweeted out the photo claiming that protesters had yelled racist remarks — calling him a “dirty Mexican” and telling him that he “would be the first deported.”
The tweet went viral. One of the many people who retweeted it was Joy Ann Reid, a prominent MSNBC commentator. Reid followed up on that retweet with her own commentary — claiming that Liberte had made the racist statements and comparing her to women in the infamous photograph of segregationists attempting to prevent the Little Rock Nine from attending Arkansas public schools.
But it was all wrong. The teenager in the photo said his discussion with Liberte was civil. She hadn’t called him any racist slurs. But by this point, Liberte had received a torrent of threatening messages calling her a racist and telling her to commit suicide. She was being publicly shamed and harassed based on false information — information she claimed was created and spread by Joy Ann Reid. Reid apologized and took the posts down, but Liberte still sued her in the Eastern District of New York for defamation.
Since the incident occurred in California, both Liberte and Reid agreed to apply California state law. This is important because unlike New York, California has a strong anti-SLAPP (strategic lawsuits against public participation) law which allows courts to dismiss frivolous lawsuits that target people for exercising their First Amendment rights. In California, judges determine two things under this law: (1) whether the defendant’s speech is in furtherance of their right to free speech (meaning, almost any First Amendment activity is protected) and (2) whether there’s a probability of the plaintiff succeeding if the case moves forward. If someone is suing you for exercising your First Amendment rights and can’t show their case has merit, not only will it be thrown out, but the plaintiff will have to pay court costs.
Over 17 other states have similar laws and they have become more important as more speech happens online. These laws create broad protections for online speech from the mundane. Like protecting Yelp reviewers from restaurant owners who sue them for a bad review, to impactful social movements like #MeToo, including protecting victims of sexual assault from lawsuits from their accusers. They’re also an important legal shield for members of the media who are prime targets for meritless defamation suits, like this notorious case from Dan Snyder against the Washington City Paper. The district court dismissed the case relying on California’s anti-SLAPP law and ordered Liberte to pay Reid court and attorney’s fees.
The Second Circuit disagreed. In a loss for Reid, the court found that California’s anti-SLAPP law does not apply in federal courts because it contradicts similar procedural rules from the Federal Rules of Civil Procedure — where federal and state rules conflict, federal is supreme. This decision deepened an already existing circuit split about whether state laws designed to offer procedural protections for free speech can apply in federal courts.
What do retweets have to do with this? Reid’s attorneys didn’t just use anti-SLAPP as a defense. They also claimed that Section 230 of the Communications Decency Act protected Reid from Liberte’s defamation claim. CDA 230 immunizes any provider or user of an interactive computer service from being held legally liable for content created by another.. In short, it means that companies aren’t legally responsible for content created by those who use their platform. It also means that you usually aren’t responsible for the content you retweet. You didn’t create the original tweet, thus you aren’t responsible for it even if you amplify it.
Reid argued that CDA 230 protected her because she was retweeting someone else’s content and that her commentary wasn’t materially different from the original tweet. The Second Circuit was rightly withering in its dismissal of this argument. If someone tweeted out a harmful and false claim about me — that I was a serial murderer, for example — and people not only retweeted it but added new elements (“I saw him shoot someone on Fifth Avenue!”), those are new defamatory statements. The alternative, as the Second Circuit points out, would mean that you can only sue the original person who defamed you online and everyone else would be immunized.
This case demonstrates that CDA 230 and state anti-SLAPP’s alone aren’t enough to protect free speech online. The Second Circuit came to the right decision, but the “material differences” rule is too context intensive. It doesn’t offer the type of general protections we need in the context of online speech. Also, as Cathy Gellis discusses at Techdirt, the Second Circuit’s decision potentially reads a “duty of care” into Section 230 that isn’t in the original language. Federal courts must balance two competing interests: plaintiffs should be able to file meritorious defamation claims and online users must be protected from frivolous defamation claims.
If Congress passed a federal anti-SLAPP law, it would resolve this tension and the emerging circuit split. Both CDA 230 and anti-SLAPP laws were created for a similar purpose — to foster an environment where free speech could flourish and where individuals would not be burdened with litigation. CDA 230 doesn’t allow cases to be dismissed at the beginning of the process, exposing defendants to substantial discovery costs. State anti-SLAPP laws would fix this, but it’s uncertain whether they apply in federal courts. Federal courts need new guidance to deal with the challenges of free speech in the 21st century and a federal anti-SLAPP law would achieve that.
