I would like to analyze Tao Lin’s defamation claim against Sarah Weinman, both as an intellectual exercise that may have practical value in warding off costly litigation among two respected writers and a demonstration for law students and graduates taking the July bar exam on one way to analyze such a claim. (I had a defamation question on the state essay portion of my own Florida Bar Exam.)
Admittedly, my credentials are thin for such an exercise, but I asked other lawyers and law professors and no one would do it without getting paid or getting the article accepted by a law review, two options that I discarded as too costly and time-consuming. In Prof. Betty Taylor’s spring 1994 seminar on Computers and the Law at the University of Florida College of Law, I did my required senior writing requirement as a research paper on Online Defamation on Electronic Bulletin Boards. (At this point, there was no Internet browser in general public use, no widespread audience for the World Wide Web, and there was a paucity of caselaw and statutory law; in fact, I remember just one federal case I could cite on the direct subject of my thesis, and it involved CompuServe. Back then, electronic bulletin boards [BBS] were pretty much the only general form of online communication and publication.)
As a staff attorney in social policy at the Center for Governmental Responsibility at the University of Florida from 1994 to 1997, I did some early research on Internet law as part of a grant I had from the Florida Department of Education, resulting in a state-published book, Legal Issues for the Design and Development of a Technology-Supported System of Education: 1994-1995 Legal Memoranda. Tallahassee: Florida Department of Education, 1995.
From 2001 to 2005, I served as Director of the Academic Resource Program at Nova Southeastern University’s Shepard Broad Law Center, where, among other duties, I helped law students with their first-year curriculum, including Torts and Constitutional Law, courses in which defamation is studied, and I helped (again, I hope) to prepare them for questions on their final exams, and after graduation, the bar exam, in which questions like Tao Lin’s claim of defamation against Sarah Weinman are analyzed for essay questions or in multiple-choice format.
Tao Lin asked me for legal advice following his arrest for Shoplifting from American Apparel, which subsequently became the title of his well-known novella. You can read our correspondence in the little self-published book The Tao Shoplifting Crisis. So I am obviously Tao’s friend, but I am also Sarah’s friend, having had dinner with her (and Ed Champion) in Williamsburg – I believe at a vegan fusion Asian restaurant on Bedford Avenue – on one occasion. I will try to analyze Tao’s claim in a disinterested manner. (“Disinterested” may not mean what you think it means. I am a lawyer and I use it in the way I learned it in law school – and, for that matter, back in J.H.S. 285 in East Flatbush about fifty years ago.)
Here is the original tweet by Sarah and Tao’s reply:
Then Tao wrote on his Tumblr:
Sarah Weinman (~190k followers on Twitter) is Publishers Marketplace’s news editor. I don’t know what the first sentence of her tweet references. I think most people who read it will believe, to some degree, that I’m not to be trusted (understandably, I feel, given the reputable source and how the information is stated like it’s common knowledge) and probably automatically commit, if only for convenience, to never spending time, energy, or money on my books.
Earlier I was thinking: What if someone in my family got in an accident resulting in huge medical bills? What if I’m unable to financially support my parents in whatever amount of years? What if I had three children? I’d feel extremely angry about Sarah Weinman’s tweet. Because, despite being 100% untrue, it would negatively affect my financial situation. My children, or other people dependent on me, would be negatively affected, in turn. (Also, outside my life, in the world, the level of equality/fairness would decrease, if the tweet were allowed to exist unchallenged. Based on what I know I think Sarah Weinman, like probably most people reading this, would not be in support of decreased equality/fairness in the world.)
I feel like I’ve read so much libel (false, unsupported statements that damage an individual’s reputation or financial status) recently, almost always directed at the individual in each situation with less power, that I want to do something about it. I want to discuss Sarah Weinman’s tweet with her in a Gmail chat, or at least “call her out” on it.
I think one effect of top-down libel is that the rich get richer and the poor get poorer. I don’t think Sarah Weinman would support that. Her tweet is maybe equivalent to a New York Times article that reads in entirety:
The restaurant Pure Food and Wine has been running a long con for years. So of course you’d be upset if you ate dinner there. [link to review by someone who disliked the restaurant].
Thank you for your time/consideration. You can go here to raise awareness on this and maybe influence Sarah Weinman into an earnest discussion with me about her tweet.
You will notice that he did not directly accuse her of defamation. Others, however, referred to “libel” on subsequent Twitter posts (although it’s not entirely clear if they were referring to Sarah’s tweet or the review at The Millions she linked to). But what the hell, let’s try to analyze if what Sarah published is defamation. (Generally, we use the term “defamation” in modern law. “Libel” is technically recorded defamation, either in print or other media, while “slander” is spoken defamation, but the analysis is the same.)
First, a definition: Defamation is any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.
Defamation of requires that four specific elements of fact be proven by the plaintiff.
First, Tao must prove that Sarah has made a false statement about him that purports to be fact.
Second, Sarah’s statement must be made publicly, to at least one third person, and not involve a private conversation. (All parties will probably stipulate that a tweet is a public statement, so this element is easily satisfied. If Sarah had only sent Tao a direct message [DM] with the same statement, that would not satisfy this element.)
Third, Sarah’s statement must have been made with intent or at least negligence on her part.
Fourth, Tao must prove he has been harmed and has sustained damages as a result of the negligent or intentional false public statement.
(If you like this so far, consider applying to law school!)
I could go on and analyze and explain these four elements of common law defamation, but there’s something that I need to do first. Ever since the U.S. Supreme Court decided New York Times v. Sullivan, the first thing a lawyer or law student would have to do in analyzing a defamation case is if there’s any First Amendment applicability.
So the threshold question for analyzing that is this: Is Tao a public figure or public official, or does Sarah’s statement involve a matter of public concern?
Because if Tao is a public figure, he has to prove something beyond what a common-law defamation plaintiff does. As a public figure, Tao has to prove “actual malice” (i.e., that Sarah had a “subjective awareness of the probable falsity” of her tweet). This is a much harder case to make. Essentially, he has to prove that Sarah knew what she was writing was not true and tweeted it anyway.
The reasoning behind this is that public figures have exposed themselves to the risk of injury from defamation claims by assuming public roles and have a greater opportunity to publicly defend themselves. Therefore, they are less likely to be harmed by false statements than private individuals who generally lack that opportunity.
Also, of course, it’s in the interests of our First Amendment rights that citizens be allowed to criticize public officials and public figures in a way that they couldn’t do to private persons (say, your grandmother who is just a regular person who owns a liquor store and has never been written about in any media).
While truth is always a defense in a defamation case, the mere fact that it is false is not enough to prove defamation against a public figure. Speakers or writers have what is called a “qualified privilege” regarding false statements that are published.
Is Tao a public figure? The case of Hatfill v. New York Times reminds us that in today’s world of instant news and celebrity, average citizens can be converted into public figures in an instant. Legally, a “public figure” can be categorized as either an “all-purpose public figure” or a “limited-purpose public figure.”
An “all-purpose public figure” is one who has a continuous and powerful influence on public matters and is always subject to the “actual malice” standard. A “limited purpose public figure” is one who voluntarily thrusts himself or herself into a particular public controversy and is thereby deemed to be a public figure only for purposes of that controversy (e.g., an anti-war activist would be considered a public figure only if the particular controversy is war).
To determine whether one is to be deemed a “limited purpose public figure,” courts look at whether the (1) person had access to channels of effective communication; (2) person voluntarily assumed a role of special prominence in a public controversy; (3) person sought to influence the resolution or outcome of a controversy; (4) controversy existed prior to the publication of the defamatory statement; and (5) person retained public-figure status at the time of the alleged defamation.
Sarah would probably argue that Tao is an “all-purpose public figure.” He is a celebrity author who has appeared on the covers of periodicals (The Stranger) and been featured in profiles and reviews in nearly every major newspaper in the United States. He is an author of well-received if perhaps controversial books of fiction and poetry, and he has regularly made his opinions known on, not just his initial blog, but in numerous online and print venues.
Can Tao prove that as an author, he’s not a public figure in order to be able to make his claim by the easier (but still very hard) common-law elements?
Obviously authors like Philip Roth or Stephen King are persons of “such pervasive fame or notoriety” that they would likely be a public figure for all purposes and in all contexts. Other authors who are less well known might be a public figure for a limited range of issues such as those regarding publishing, but perhaps not for those regarding issues in their personal lives, depending upon the information and the controversy. Has Tao “thrust himself into a public controversy” and thus, if not an “all-purpose” public figure, he’s a “limited-purpose public figure” as far as book publication is concerned?
I’ll let you try to analyze that. Obviously there would be a record Sarah could bring in to show, in many ways, that Tao is a public figure. He may not even contest it. My own judgment is that he would have a difficult time in proving that he was a private individual whose financial state and/or reputation was harmed in the same way it would be if he was, say, an ordinary dentist who never got any publicity whatsoever and who found herself accused of “running a long con” in a tweet. (That might imply the dentist had fraudulent credentials, licensing, etc., and go to the heart of her ability to make a living by working on people’s teeth.)
If Tao is considered a public figure, he’d have to prove that Sarah tweeted a statement she either knew was false or acted with “reckless disregard” as to the statement’s truth or falsity.
This goes to Sarah’s state of mind at the time of publication. Unlike the negligence standard for ordinary defamation, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, Tao must produce clear and convincing evidence that Sarah actually knew the information was false or entertained serious doubts as to the truth of her statement.
In making this determination, a court will look for evidence of Sarah’s state of mind at the time of tweeting and will likely examine the steps she took in researching, editing, and fact checking her work.
It would generally be insufficient, however, for Tao to merely show that Sarah didn’t like him, failed to contact him for comment, knew Tao had denied the information, relied on a single biased source, or failed to correct the statement after publication.
Not surprisingly, this is a very difficult standard for a plaintiff to establish. Indeed, in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation.
I always tell law students that there is one correct answer to every law school exam question, and that answer is “It depends.” But I also say that the student needs to come to a conclusion based on her legal analysis.
I could continue with this analysis assuming Tao is NOT a public figure, limited or all-purpose and that what Sarah tweeted about is not a public issue or controversy. In that case, I would go over the common law elements of defamation. I’d ask these questions:
First, did Sarah’s tweet injure Tao’s reputation in a substantial way with any respectable group of people? (She might offer the defense that “running a long con” might be appreciated by both readers and critics. If “conning” someone is to make people believe something is true when it is not, Sarah could argue that that is exactly what good fiction writers do, and that her tweet in fact may have enhanced Tao’s reputation among some people.)
Second, was Sarah’s tweet about Tao? I think most people would agree that it was.
Third, was Sarah’s tweet “published”? Again, I think the answer is obviously yes.
Fourth, what was Sarah’s degree of fault for her tweet? Assuming that Tao is NOT a public figure and a completely private person, did Sarah make a statement that a reasonably prudent person would have known was false and defamatory?
Assuming Tao could prove all of that – again, if he were NOT a public figure – then the court would have judge whether this was “libel per se” or “libel per quod.”
Examples of libel per se are statements that: (1) relate to the person’s business or profession to the person’s detriment; (2) falsely claim that the person committed a crime of moral turpitude; (3) imputes unchastity on the person; or (4) claim that the person suffers from a loathsome disease.
Given the remarks in the tweet, Tao would have a hard time proving that Sarah said he was unchaste or suffered from a loathsome disease. He might try to prove that she claimed falsely that he committed a crime of moral turpitude, but his most obvious and pertinent claim is that Sarah’s tweet harmed his reputation as a writer, his profession. Frankly, it’s debatable whether “running a long con” is detrimental to a writer.
Believe it or not, I could go on for hours. Sarah, of course, has the obvious affirmative defense: that what she said was the truth. She could present evidence to the court that Tao in the past has “conned” people (for example, a 2011 story contest sponsored by Tao’s Muumuu House which charged entrants a fee but which selected a story written by Tao under a pseudonym as the prize winner). But this is a long, difficult and perilous enterprise, and it is doubtful Sarah would want to go there. A defamation case like this would give no one but Gawker and their readers any joy.
A case would also have to examine what “running a long con” means to the average person. (I had never heard the phrase “long con” before, and I had to go to the Urban Dictionary to find its meaning).
Sarah could also use the affirmative defense that by publicizing her tweet on both Twitter and Tumblr and encouraging people to discuss it, he was in fact magnifying whatever the effect of the statement was. (I follow Sarah’s tweets and either overlooked it or didn’t think anything positive or negative about it because I didn’t really comprehend its alleged importance after Tao’s response created a public discussion.) Thus, rather than mitigating harm, Tao was broadcasting the contents of Sarah’s message to people unaware of it, rendering him in a poor position to collect damages for a harm that he himself helped to cause.
And I never did get to “libel per quod,” did I?
However, in my judgment, there is no reason to bother. I’ll just pretend that this was the Florida Bar exam and like all the essay questions, the hour allotted to it was almost over and I still could have kept writing…
In my judgment, Tao is a public figure by the Supreme Court’s definition in Gertz v. Robert Welch Inc. Tao is among those who have “assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
My judgment is that Tao would be unable to prove Sarah acted with actual malice.
Thus, Tao’s claim for defamation would fail. Sarah would be found not liable for libel.
School’s out for summer.