by Paul Alan Levy
Eugene Volokh has a short article this morning about the brief concurring opinion filed by an appellate judge in Breen v. Holmes , 2017 WL 6133325 (La. App. Dec. 7, 2017). The case concerned statements made on social media about a controversial decision by prosecutors not to pursue charges against someone who shot her husband, based on their evaluation of the strength of her claim of self-defense. The defendants opined, in strong terms, that the killer was a murderer who deserved to be prosecuted. The majority affirmed a dismissal under the state anti-SLAPP statute, and one judge concurred, saying,
"I must express my concerns about the defendants’ statements. I suggest the statements were loose, gossipy, and reflected a lynch-mob mentality. The citizens of Louisiana should beware of the Internet and Facebook. You might find yourselves paying damages to someone."
Eugene Volokh expresses concern about this statement because, after all, opinion is not actionable as defamation, and the public should not be discouraged from expressing their views.
I get that, but sitting where I sit, I often have to give bad news to people about whether demand letters that they have been sent or libel suits that have been filed against them, based on some criticism they posted on public forums such as Yelp, can easily be defeated. And I am also put in the position of helping them try to find lawyers they can afford if they want to stand up for their rights – that is often not easy, especially in states where, unlike Louisiana, there is no good anti-SLAPP law. The line between nonactionable opinion and actionable fact can be a fine one, and most people have little sense of where that line is located. And even if the speech is defensible, the cost of defending the right to express opinions and make truthful statements can be devastating, even if the suit is ultimately dismissed on summary judgment. If I have a criticism of the judge's concurrence, it is that the biggest risk is not of paying damages, but rather of having to pay a lawyer.
So I have no problem with reminding members of the public that Twitter, Facebook and other platforms are not a zone liberated from defamation law. Our “Guide to Writing with Libel In Mind” is aimed more at bloggers than at people posting on Facebook, but it is worth a look.