Abby Broyles, a candidate for Congress, is embroiled in a bizarre controversy where she is accused of verbally abusing teenage girls at a slumber party and throwing up in a laundry basket and a girl’s shoe. That is not exactly a “chicken in every pot” type of political pitch. However, I am more interested in the legal than the political aspect of this case. My students and I often use such controversies to discuss the scope or application of torts theories. This one raises a couple of novel elements. Broyles initially called these girls and their parents liars behind a political hit job. She also allegedly threatened to sue a media outlet for running the allegations. The question is whether she could now be sued for defamation.

A journalist and a lawyer, Broyles is a Democratic candidate for the 5th congressional district and is running on slogans of “ensuring all voices are heard” and “holding politicians accountable.”

As bad as this story is, it is worth noting that Broyles is not the first person to allegedly say terrible things while intoxicated. The problem is when you are a public figure who then attacks your accusers in the media, particularly minors.

THE PARTY

Broyles is accused of going to a friend’s house on Feb. 11th and drinking wine throughout the night. According to NonDoc.com, she began to hurl profane insults at the girls including calling girls an “acne f–ker,” “Hispanic f–ker,” and “judgy f–ker.” She is accused of later vomiting into a laundry basket as well as a girl’s shoe. One girl reportedly left in tears.

That alone could be the basis for a tort action but what happened next is the more interesting tort issue.

The girls tweeted, as teenagers are known to do. Broyles responded by calling them and their parents liars: “I saw the tweets. I have been out of town on a fundraising trip, and they are awful and offensive and false. I mean, I get trolled on Twitter all the time, but I don’t know these women and I don’t know what is behind this, but it’s just not true.”

THE AFTERMATH

Broyles said that the girl’s mothers were part of an organized political attack against her and that the allegations were “cooked up.” She also reportedly threatened NonDoc with a defamation action.

Parents like Sarah Matthews cried foul as the allegations flew on social media.

Then Broyles admitted that she was at the party but claimed that she never denied being at the party. She said that her friend handed her a medication which gave her an “adverse reaction” causing her to hallucinate.  That itself is a notable allegation because, if the medication was not prescribed to Broyles, that is a separate legal problem for the friend if this was a controlled medication.

“She asked me to come over.  She asked me to bring some wine. We had wine and sushi and a couple of hours later, we were upstairs in their theater room watching a movie. For years I have struggled with stress and anxiety and insomnia. I took the bar exam on 2 hours of sleep.  I mean, this is how far this goes back for me. And she knows that. And she gave me a medication I had never taken before. And I had an adverse reaction. Instead of helping me sleep, I hallucinated. And I don’t remember anything until I woke up or came to, and I was throwing up in a hamper.”

Valium is a Schedule IV controlled substance and it is a crime in most states to possess such drugs without a prescription or distribute such drugs without a license.

It is certainly well-known that such mixing of medications and alcohol can produce extreme (and out-of-character) conduct.  I know people who, even without alcohol, have had such bizarre reactions to medications. Broyles was clearly intoxicated and out-of-control. What Broyles described can happen and, in fairness, it should be weighed in judging her conduct.

The issue, however, will be the denials. It is not clear if Broyles is saying that she was still under the influence of the drug/alcohol mix or whether that produced gaps in her memory.

Broyles later apologized to the parent and added “you don’t know me.” She said “I would never ever say anything hurtful. I’ve never, ever would say something hurtful like those things. And that’s why I know I was not in my right mind. I know that that’s what happened because of that combination of things. And I deeply, deeply regret it.”

However, she denied the NonDoc account and said she “never told them that I wasn’t there.”

The Editor-in-Chief of NonDoc.com then reportedly played a recording of the conversation to another media outlet. Broyles then said that “That phone call was terrifying and caught me off guard. I remember hearing the accusations and just repeating ‘no, no, no’ and then hanging up. I was happy to be in the TikTok video with the girls which was obvious proof of my attendance.”

DEFAMATION OR INTOXICATION OR BOTH?

There is no question that the post-party comments are defamatory. Broyles accused these parents and girls of lying and being part of a political hit job.

Defamation involves a statement that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him.”

These parents and teenagers are presumably not public figures or limited public figures. As such, the standard in Oklahoma is similar to other states, a private figure generally must show:

1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication.

Mitchell, 60 P.3d at 1061; see also Okla. Stat. tit. 12, § 1441.

Those elements are met. The question is whether it matters that Broyles could claim that she was intoxicated or possibly had gaps in memory. Defamation generally attaches to the publication or statement. The tort has historically been based on negligence, not intent. However, this case adds an interesting twist. Broyles is saying that she was given a medication without understanding how it would affect her. “Fault” does raise the full circumstances of a statement.

Consider this: if someone is “slipped a Mickey” or a party drug without her knowledge (clearly not the case here), is she still liable if she proceeded to make out-of-control and defamatory statements?

Broyles clearly admits that she knew that she was taking the medication (presumably something like valium). Yet, she is claiming that she lost control unexpectedly and unintentionally. That mixing is known to lower inhibitions and disorientation  due to the chemical combination:

Both alcohol and Valium have similar effects on brain chemistry and the body. For instance, both increase levels of some of the brain’s chemical messengers, or neurotransmitters, specifically dopamine and gamma-aminobutyric acid (GABA). Dopamine is a naturally occurring chemical in the brain that helps with mood regulation, impulse control, and some memory functions. A spike in dopamine amplifies feelings of pleasure and happiness. GABA, on the other hand, is a kind of natural tranquilizer, dampening the “fight-or-flight” reaction and promoting relaxation and sedation. When two substances like alcohol and Valium are taken at the same time, levels of dopamine and GABA are increased even more than they would be if only one of these substances was taken. This can cause a person to become intoxicated much faster.

So, assuming that Broyles had such a reaction (which is plausible given the extreme conduct and comments), can she still be held in defamation for statements prompted by such a dangerous combination? The answer is that she can still be liable though a jury could ultimately reject the claim on the fault element.

In this case, Broyles would have to claim that the drug/alcohol combination continued to impact her following the slumber party. It is hard to judge the timeline or merits of such a claim. However, it is possible for people to have blacked out memories, but again the defamatory statements were technically made.

What do you think?