Fairbanks v. Roller, Case No. 1:17–cv–01052 (TNM)

314 F.Supp.3d 85

Cassandra FAIRBANKS, Plaintiff,

v.Emma ROLLER, Defendant.

Case No. 1:17–cv–01052 (TNM)

United States District Court, District of Columbia.

Signed June 6, 2018

Joseph Scott Shannon, Daniel D. Mauler, Redmon, Payton & Braswell, LLP, Alexandria, VA, Robert E. Barnes, Pro Hac Vice, Barnes Law, Los Angeles, CA, for Plaintiff.

Laura Rose Handman, Eric J. Feder, Davis Wright Tremaine, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of herself and a fellow journalist in the White House press room making a gesture widely recognized as the "okay" hand symbol but also speculated at the time to be a "white power" symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, "just two people doing a white power hand gesture in the White House." Ms. Fairbanks sued Ms. Roller for defamation. The First Amendment requires that Ms. Fairbanks' claim be considered "against the background of a profound national commitment" to the freedom of speech and especially of political speech, which is "essential to the security of the Republic." See New York Times v. Sullivan , 376 U.S. 254, 269–70, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This "fundamental principle of our constitutional system" obligates Ms. Fairbanks, as a public figure, to support her defamation claim by alleging facts that support a finding of actual malice on the part of Ms. Roller. See id. at 269, 279–80, 84 S.Ct. 710. Because Ms. Fairbanks has failed to allege such facts, Ms. Roller's Motion to Dismiss under the Federal Rules of Civil Procedure will be granted. The District of Columbia's anti-SLAPP statute does not apply in federal court, so Ms. Roller's Motion to Dismiss and request for attorney's fees under the anti-SLAPP statute will be denied.

I.

Ms. Fairbanks describes herself as a political activist and a grassroots journalist who uses social media to reach the public. Am. Compl. 2, ¶ 4. She describes Ms. Roller as a gatekeeper journalist with an esteemed professional reputation, though she also alleges that Ms. Roller works for a click-bait news site that intentionally publishes fake news. Id. at 2–3. According to Ms. Fairbanks, gatekeeper journalists like Ms. Roller consider themselves superior to grassroots journalists. Id. at 2. At the same time, they fear that grassroots journalists threaten their role as "[t]he primary gatekeepers of news." Id. Because of their fear, Ms. Fairbanks alleges, some gatekeeper journalists "wage a personal, political war on their ideological adversaries and grassroots competitors." Id. According to Ms. Fairbanks, this conflict intensified when grassroots journalists received White House press passes. Id.

When Ms. Fairbanks received a White House press pass, she and a fellow "new media" journalist posted a picture of themselves making the "okay" hand symbol in the White House press room. Id. At the time, there was ongoing public debate about whether the alt-right movement had turned the gesture into a hate symbol. Memo. ISO Mot. Dismiss 2–3 (citing news articles about the "okay" hand symbol).¹ Ms. Roller retweeted Ms. Fairbanks' photo, adding the caption, "just two people doing a white power hand gesture in the White House." Am. Compl. ¶ 6. She followed up with a second tweet, which stated "for reference," provided a link to an article on the Anti–Defamation League website, and contained a graphic of the "okay" symbol with the letters W and P traced over the fingers and the words "white power."² Ms. Roller then published a third tweet, noting, "people in the alt-right vigorously deny it has anything to do with white power, but keep using it to annoy the libtards."³

Roller's tweets were read, retweeted, and referenced by a variety of "major news outlets," though not by any "serious publication in America." Am. Compl. ¶¶ 8–9. Ms. Fairbanks tweeted, "They've become so easy to troll that you don't even have to make an effort anymore,"⁴ and, "The outrage is cracking me up."⁵ Similarly, Ms. Fairbanks responded to a tweet that read, "Please tell me you guys made the OK sign to troll off this fantastic lefty hysteria," with an emoji of a smiley face sticking out its tongue and winking.⁶ But then Ms. Fairbanks sued Ms. Roller, arguing that Ms. Roller's first tweet defamed her.⁷ Ms. Roller filed Motions to Dismiss under the Federal Rules of Civil Procedure and the District of Columbia anti-SLAPP statute.

II.

"[T]he Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits." Kahl v. Bureau of Nat'l Affairs, Inc. , 856 F.3d 106, 109 (D.C. Cir. 2017). Early resolution of defamation cases under Federal Rule of Civil Procedure 12(b)(6)"not only protects against the costs of meritless litigation, but provides assurance to those exercising their First Amendment rights that doing so will not needlessly become prohibitively expensive." Palin v. New York Times Co. , 264 F.Supp.3d 527, 533 (S.D.N.Y. 2017).

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires that a complaint raise "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Pleading facts that are "merely consistent with" a defendant's liability "stops short of the line between possibility and plausibility." Twombly , 550 U.S. at 545–46, 127 S.Ct. 1955. Thus, a court evaluating a motion to dismiss for failure to state a claim does not accept the truth of legal conclusions or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. That said, it construes the complaint in the light most favorable to the plaintiff and accepts as true all reasonable inferences drawn from well-pled factual allegations. See In re United Mine Workers of Am. Emp. Benefit Plans Litig. , 854 F.Supp. 914, 915 (D.D.C. 1994). Consideration is limited to "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Hurd v. D.C. Gov't , 864 F.3d 671, 678 (D.C. Cir. 2017).

III.

Under District of Columbia law, a defamation claim requires: (1) a false and defamatory statement; (2) published without privilege to a third party; (3) made with the requisite fault; and (4) damages. See Beeton v. District of Columbia , 779 A.2d 918, 923 (D.C. 2001). Ms. Roller's motions argue that Ms. Fairbanks has not pled facts to support findings of falsity and fault. Ms. Fairbanks concedes that she is a public figure. See Pl.'s Opp. to Mot. Dismiss 4 (reciting standard for public figures), 10–12 (applying standard for public figures). Under First Amendment law, this means that she bears a heightened burden on both these elements. Liberty Lobby, Inc. v. Dow Jones & Co., Inc. , 838 F.2d 1287, 1292 (D.C. Cir. 1988).

A.

The First Amendment requires public figures suing in defamation to "demonstrate by at least a fair preponderance of the evidence that the [allegedly] defamatory statement is false," with close cases decided against them. Liberty Lobby , 838 F.2d at 1292. Although the First Amendment permits liability for false factual statements under some circumstances, "a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Pure statements of opinion can never support liability because "[u]nder the First Amendment there is no such thing as a false idea." Gertz v. Robert Welch, Inc. , 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Courts in this jurisdiction consider four factors to determine whether a defendant has stated a fact or an opinion. Ollman v. Evans , 750 F.2d 970, 979 (D.C. Cir. 1984). First, courts evaluate whether a defendant's statement "has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous" and thus less likely to carry specific factual connotations. Id. Second, courts evaluate whether the statement can be "objectively characterized as true or false" or instead "lacks a plausible method of verification." Id. Third, courts evaluate any unchallenged language that provides context for the challenged statement—for example, the uncontested portions of an article or column—to determine whether the context would influence an average reader's perception that the challenged statement has factual content. Id. Fourth, courts evaluate the broader context, including social conventions surrounding different types of writing, to determine whether this context signals that a statement concerns fact or opinion. Id.

Ms. Roller argues that all four Ollman factors show she stated an opinion, not a purported fact, when she tweeted that Ms. Fairbanks made "a white power hand gesture in the White House." Memo. ISO Mot. Dismiss 8–18. First, she argues that her interpretation of the "okay" hand symbol is "indefinite and ambiguous" because the gesture itself means different things in different contexts—sometimes showing agreement, sometimes showing safety, and sometimes showing disagreement, if used sarcastically. Id. at 9–12. Second, she argues that her statement is not falsifiable because "white power" is a loosely defined political charge with no concrete and objectively verifiable meaning, much like charges of racism or fascism, which courts have found inactionable. Id. at 12–14. Third, she argues that readers would not...