MSNBC’s Joy Reid has two notable developments this week. She was named as the new nightly anchor to replace Chris Matthews and was lost a major appeal in a defamation lawsuit tied to her prior position. Reid has a history of controversial statement including her insistence that her posts on her blog with homophobic comments were fabricated by hackers. She later apologized for the postings that she claimed that she made. She acknowledged “I can definitely understand, based on things I have tweeted and have written in the past, why some people don’t believe me.” She was sued in one of the most notorious postings on social media by Roslyn La Liberte, a Trump supporter, who was trashed by Reid for comments that she never made and an account that proved to be untrue. Reid relied on California’s Anti-Slapp statute and immunity arguments to try to force La Liberte out of court, even though she again later apologized. Now the United States Court of Appeals for the Second Circuit has handed down a major ruling against Reid that could undermine future defenses by media figures.
Reid retweeted this image of La Liberte in the MAGA hat from a city council meeting in California during debate over SB 54, a law limiting local law enforcement cooperation with federal immigration authorities. Reid first retweeted the image with the caption, “You are going to be the first deported.” Then, in a second post on Instagram, she wrote that the woman in the photo had screamed “You are going to be the first deported … dirty Mexican!” In additional postings on Instagram and Facebook, Reid said “Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.”
The problem is that the image was false as was the account. La Liberte is the daughter of immigrants and was described as trying to calm the situation down. The 14-year-old at the center of the controversy was shown hugging La Liberte after their exchange. As stated in a federal complaint, the misleading caption and posting to Reid’s1.24 million followers was a classic defamation action. The complaint states:
“An interview of the young man confirming that La Liberte did not utter any racial slurs and was otherwise civil to him. He states, among other things, that he “felt like [La Liberte] was still trying to keep it civil which I appreciate”; “she was being civil”; and “[s]he doesn’t deserve it because she was giving her opinion at a place where everyone should be able to say their peace.”
Two days after posting her comments, Reid apologized by saying “It appears I got this wrong. My apologies to Mrs. La Liberte and Joseph.” The failure to specify what she “got wrong” and the use of “appears” led La Liberte to object that the apology was too little and too late.
Reid’s counsel then however successfully used the California law against La Liberte when she sought a defamation action. La Liberte was first declared a limited public figure for the purposes of the defamation. We have previously discussed this status. The status imposes the higher standard first imposed in New York Times v. Sullivan for public officials, requiring a showing of “actual malice” where media had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.
This status determination turns on Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
This case shows how easy it is to fall under the higher standard. Just because she appears in the meeting, the district court found that La Liberte had become a limited public figure. The Second Circuit disagreed and stated “Thin as the findings are to begin with, the district court did not take into account the requirement that a limited purpose public figure maintain ‘regular and continuing access to the media.'”
It also rejected the use of the California anti-Slapp statute to shift attorney fees to the winner under California’s anti-SLAPP statute. The Second Circuit ruled that the state anti-SLAPP law was inapplicable in federal court which follows countervailing standards on the necessary showing for cases. Under federal rules, a plaintiffs must show only a plausibility — not the probability — of prevailing. It also ruled that Reid does not enjoy immunity under Section 230 of the Communications Decency Act.
Each of these holding would be a considerable loss but their combination in one case is a devastating loss for media defendants.