You can go ahead and call someone “F***ing crazy” on Twitter (in the States at least)

I rarely write about U.S. internet legal developments around here. But sometimes, the facts of a U.S. case are just too interesting to ignore. Once such recent case caught my eye. If you’ve read the headline of this post, you know what I mean. And there is a Canadian connection to the facts, so that’s something.

The case is Feld v. Conway (PDF link), released a couple of weeks ago by a Massachusetts District Court, and boy the facts are both fun (well, in the internet law sense) and sad. Unfortunately the sad part happens in Canada.

Mara Feld had a thoroughbred horse named Munition. She arranged to have a horse dealership (huh?) send Munition to a horse farm in New Jersey to become a companion horse (huh?). Instead, Munition ended up at a horse auction (huh?) in Pennsylvania, and while no one is quite sure what happened to Munition, he most likely ended up being sold to someone in Canada, where Munition was probably slaughtered. Sorry for that downer.

Crystal Conway is a “Bloodstock Agent” (huh?) in Kentucky. There was a debate online on all the popular thoroughbred race horse sites (huh?) about what happened to Munition, and Conway got involved in the debate. Conway is on teh Twitterz under the handle “ShesUnskippable” (huh?). Here she is! Wow, she has more followers than me, maybe I should stop making fun of this whole thing. At some point during the debate, she sent out this delightful Tweet:

Mara Feld aka Gina Holt – you are fucking crazy!

Well that’s nice. Don’t ask me who Gina Holt is, the case doesn’t say. Now, Held is some sort of fancy toxicologist. According to the case:

her professional career is dependent on the public review and endorsement of her publications. Peers, professors, prospective employers, and interested parties find her work by searching the Internet for her name. Conway’s tweet can be found by searching for Feld’s name with Internet search engines

Welcome to the nightmare of the internet Mara (or should I call you Gina?). One crappy thing written about you and it’s there forever. We’ve all been there. But Mara did not take this lying down. She sued Conway for defamation (libel). Conway thought the lawsuit was bullshit, so she filed what we in the law biz call a “Motion to Dismiss”. That’s basically a document that says “yo, Judge, this case is bullshit, you should toss it out before it even goes to trial”, but written in legal mumbo jumbo.

Well this judge agreed it was bullshit! He goes through the legal standard for a motion to dismiss which I won’t go through because really who cares (simplified version: if the lawsuit would have zero chance, you dismiss). He does go through the standard for a defamation claim in Massachusetts, which I thought would be good to reprint because it may be important. Always good to know the legal standards for defamation, anywhere!

1. that the defendant made a statement concerning the plaintiff to a third party;
2. that the statement could damage the plaintiff’s reputation in the community;
3. that the defendant was at fault in making the statement; and
4. that the statement either caused the plaintiff economic loss or is actionable without proof of economic loss.

Here’s the heart of the matter in this case:

Defendant contends that her tweet is an expression of opinion and hyperbole. Under the First Amendment, opinions are constitutionally protected and cannot form the basis of a defamation claim.

So is calling someone “fucking insane” stating a fact that they are actually, you know, insane, or just some protected hyperbole speech? To make that determination, the Court said that you have to look at the totality of the statement and the context in which it was published (remember, saying something on the internet is “publishing” it). The Court cites a bunch of examples from the Supreme Court, including this classic case:

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)
(advertising parody depicting the Reverend Jerry Falwell in an incestuous relationship with his mother could not reasonably have been interpreted as stating actual facts about Falwell).

Well I think you can guess what the judge here says about this Tweet’s context:

In this case, the tweet was made as part of a heated Internet debate about plaintiff’s responsibility for the disappearance of her horse. Furthermore, it cannot be read literally without regard to the way in which a reasonable person would interpret it.(…) It was obviously intended as criticism—that is, as opinion—not as a statement of fact.

QED. Motion to dismiss GRANTED. Fuckin’ A.

Super Happy Funtime Analysis Hour

For us Canadians, we still need to be careful. I have written about internet defamation before and because you are all very loyal readers, you’ll remember that I wrote how easy it is to show defamation in Canada. Go look up at that Massachusetts defamation standard again (told you it would be important) and read it next to the defamation standard in my linked post. OK OK,I’ll reprint it because you are too lazy to click:

1. the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. the words in fact refer to the plaintiff; and
3. the words were published.

The Canadian one is WAY easier to prove. Also, defences are different. In the States, you get your first amendment protection, and voila, no defamation (although I’m simplifying, it’s not quite absolute). In Canada, while our  Charter has freedom of expression, the actual defence to defamation is “fair comment”, which is way more limited and WAY short of free speech. I’m not going through that defence because you’re getting tired by now, but trust me. There is another defence, “responsible communication” which often applies online, but it wouldn’t fly here.

So in Canada, this case would have been way different imho. The basics of the libel law mean a motion to dismiss would most likely not have succeeded. The defenses mean that the suit might have even succeeded. Would there be huge damages calling a private person fucking insane? Probably not. But I’m not sure you’d have carte blanche in a full freedom of expression way in Canada. That’s fucking crazy.