James Woods is one of my favorite actors. I was somewhat startled to read this recent CNN article discussing the status of his defamation suit against a Twitter user who attacked him by making a very specific accusation against him. I had not known about this story, and it turned out to be a good opportunity for me to learn some basics about California defamation law.
According to the CNN article, the incident escalated out of a Twitter exchange between Woods and a Twitter user going by the name of @abelisted (Abe List). The account for @abelisted is now restricted, apparently acting on the advice of counsel, so I have been unable to look at the actual alleged tweets. But apparently on or about July 15, 2015, Woods tweeted a comment that mentioned Planned Parenthood.
The Twitter user @abelisted allegedy then tweeted this: “cocaine addict James Woods still sniffing and spouting.” Some name-calling of a generic nature followed this.
The case has had an interesting legal history. The California court hearing the case first ruled that Wood’s complaint, which sought $10 million in compensation, should be dismissed. It then reconsidered the motion after hearing expert testimony from an academic linguistics expert who testified that, based on the comment’s wording, Abe List intended to make a factual statement about Woods.
The court has not at this time said that the plaintiff (Woods) has actually won his case, but only that there is a sufficient basis for the case to proceed to trial.
Needless to say, the defendant was not happy about this reversal at all. Abe List had argued strenuously that his epithet “cocaine addict” was meant as a joke, and was no different from the standard mudslinging that goes on at Twitter all the time. Furthermore, List alleged, Woods himself had said similarly derogatory things to other people in Twitter battles.
List’s attorney, Lisa Bloom, has argued that “”Twitter is a wide open forum where wisecracks are the norm. It exists not only for the rich and powerful to lambast others, but for all users to express themselves, often colorfully, without fear of being dragged into expensive, stressful litigation.” Bloom has said that she intends to appeal the court’s decision to let the case go forward.
It will interesting from a legal perspective to see how this plays out. I am not a California resident and have never practiced law there, but for the purposes of this article, have tried to familiarize myself with the basics of defamation law there.
Defamation in California is governed by Cal. Civ. Code §§ 44, 45a, and 46 and the case law surrounding this statute. Defamation can be in written form (libel) or spoken form (slander).
The elements of a defamation claim are:
- Publication of a statement of fact.
- The statement must be false.
- The statement must not be a “privileged” one (i.e., protected under some legally recognized privilege).
- The statement has a natural tendency to injure, or that causes “special damage,”
- The defendant’s action in publishing the statement was at least negligent.
A plaintiff would need to prove every element listed above, in order to prevail.
Where “public figures” are concerned, the plaintiff has to prove that the statement is false. Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996). When non-public figures are involved, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646 & n.5 (Cal. Ct. App. 1999). Public figures, then, have more of an uphill battle than do non-public figures, at least in theory.
You might ask: how would a plaintiff ever be able to show “damages” from a Twitter tweet? This might be where the doctrine of “defamation per se” comes in. Under this doctrine, certain accusations are so inflammatory that damage from them is imputed automatically. Under the old common law, such things might be: accusing someone of a “loathsome disease,” sexual promiscuity, being a criminal, and similarly damaging accusations. See Cal. Civ. Code § 45a.
But what is a “public figure” in this context? It is someone who has gained such “pervasive fame” that they are recognizable in various contexts as a public persona. As an actor with a multi-decade career, James Woods should certainly qualify as a public figure. Interestingly, there is also such a thing as a “limited-purpose” public figure. This is someone who has only achieved notoriety in a limited context: for example, he or she may be associated only with a particular industry, trade, or specific issue. See Copp v. Paxton, 52 Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996).
Public figures and “limited-purpose” public figures also need to show actual malice. That is, they would need to demonstrate the defendant published the statements knowing that they were false, or recklessly disregarded their truth or lack of truth. Should his case proceed to trial, then, Woods as the plaintiff would have to make this showing.
What would be the defendant’s responses or defenses? There are several defenses to defamation available (fair report privilege, opinion and fair comment privilege, and the “substantial truth” doctrine). The fair report privilege applies to statements by government officials and is not directly applicable here.
The “opinion and fair comment” privilege may be one possible defense here. It is based on the right people have to make comments and offer opinions. Not every opinion is protected speech, we should note. If someone makes statements that imply some underlying fact, it could be defamatory. This is a very grey area, and the issue often turns on the totality of the circumstances. What was the context of the statement? Was it verifiable? How was it intended? These are the big questions that would need to be asked.
The “substantial truth” doctrine is based on the idea that “truth” is an absolute defense against defamation. This is why a plaintiff has to offer some evidence that the alleged defamatory statement is false. One gets the feeling that, when analyzing these factors, everything is going to come down to context and extrinsic evidence. Like every other area of the law, defamation is complicated.
Regardless, this remains an interesting case and one that I plan to follow. It appears that the judge in this case made the right decision. Abe List’s tweet does, I think, go beyond the usual Twitter name-calling and mudslinging. The statement makes a very specific accusation against Woods, one that a general member of the public might believe to be true.
To me, the statement has a “natural tendency to injure,” making it possible defamation per se. It does not seem reasonable, as I see it, for List simply to say that he was just joking or doing what everyone else does on Twitter. This appears to be the reason why the judge is permitting the case to forward.
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