Erika Kirk, the widow of Charlie Kirk, has been the subject of a shocking level of personal attacks and conspiracy theories. The latest such example involves a site called Project Constitution, which posted an allegation (with a recording of the purported voice of Erika Kirk) that she helped recruit underage girls for Jeffrey Epstein. It is untrue, but other posters soon spread the viral claim.
As a public figure, Kirk has a higher burden in bringing defamation claims. There are also free speech protections for the statement of opinions, even unhinged opinions. However, some of these attacks appear to cross the line.
The most recent posting declared that it had acquired a “bombshell” audio file and “verified its authenticity.” It then affirms that “The voice is undeniably Erika Kirk’s. There is no mistaking it. And what she says on that call is absolutely damning.”
The posting maintains that this is a “statement of fact” and “It’s not a rumor. It’s not a theory. This is a HUGE story. This is the confirmation we’ve all been waiting for.”
Yet, these sensational claims were followed by a disclaimer:
DISCLAIMER: This post is my personal opinion and interpretation of publicly available materials. All claims regarding the identity of voices in the provided audio are based on my own research and belief. This post should be viewed as investigative commentary and not as an absolute statement of fact.
The community note flags the original posting as false, stating, “That’s not Erika Kirk recruiting a young girl. It’s a controlled taped phone call circa 2005 to Haley Robson (a known Epstein recruiter) from Palm Beach PD, the child on the line (known as SG) was attempting to get Robson to incriminate herself.”
As a threshold matter, I commend these companies for the use of community notes. Many of us in the free speech community have long argued that defamation and public corrections can counter false claims and disinformation without the use of the prior censorship system under the Biden Administration.
It is unclear who is responsible for this posting. If you clicked on the link to the Project Constitution, you ended up on a page showing a pig in a police uniform.
I could find no information on who is responsible for the site or the postings. (The site has also linked bizarre conspiracy theories that Kirk is transsexual). The site, however, has also posted pictures of an ailing father and seeks donations.
When I started writing this column, the site was still up. Now you find this announcement:
However, there is still an X site featuring a picture of Charlie Kirk with a pitch for “tips”:
X reports that the verified account was created in 2022.
After various sites disproved the allegations, the creator (again without identifying himself or herself) issued an apology:
“CORRECTION: I would like to issue a correction regarding my previous post where I claimed the audio featured Erika Kirk. Upon further verification, the individual in the recording is actually Haley Robson, as detailed in the Palm Beach Police Department’s probable cause affidavit related to the Jeffrey Epstein investigation. Here you can find the documents tht [sic] PROVE this: dn790006.ca.archive.org/0/items/Jeffre I apologize for the misinformation and any confusion this may have caused. Accuracy is important, and I am committed to upholding it in future posts. Thank you for your understanding.”
The claim that “Accuracy is important, and I am committed to upholding it in future posts” belies the fact that it is entirely unknown who the “I” is.
Making matters more difficult is the fact that there are other sites called Project Constitution that have no connection to the site attacking Kirk. The difficulty tracking the site or its creators shows the practical challenges in bringing lawsuits. It is possible for sites to spring up and then disappear like hit-and-run defamation cases.
Past courts have allowed litigants to discover the financial and identifying information from carriers or service providers in civil lawsuits.
If a site identifies its content generators, the legal system can address any defamatory content. However, absent such public information, the sites can offer public figures little recourse.
The controversy shows the dilemma for public figures like Kirk.
Kirk’s Case
While the correction can protect publishers under retraction statutes from some damages, there is a credible basis for possible defamation or false light claims. The original disclaimer’s language itself is in sharp contrast to the gotcha claims above it. Moreover, it contains some ambiguity in still claiming that this is the result of investigative journalism. The later apology seeks to resolve that ambiguity.
On the original posting, courts have routinely rejected perfunctory claims of “in my opinion” or disclaimers when the thrust of the publication is clearly factual. For example, in Wilkow v. Forbes, Judge Frank Easterbrook wrote a “statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”
Kirk would have to shoulder the higher “actual malice” standard for public figures established by the Supreme Court. Accordingly, she must show that these sites had actual knowledge of the falsity of the statement or showed reckless disregard for the truth. At a minimum, the latter standard would appear to be satisfied in this case. There is no evidence that the site took steps to confirm that this voice had previously been identified as Kirk’s, let alone to establish that “The voice is undeniably Erika Kirk’s.”
As for false light, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.
The standard California jury instruction asks the jury if “the false light created by the disclosure would be highly offensive to a reasonable person in [name of plaintiff]’s position” and whether “there is clear and convincing evidence that [the defendant] knew the disclosure would create a false impression … or acted with reckless disregard for the truth.”
There is no reason for Erica Kirk to have to tolerate despicable attacks by sites looking for clickbait windfalls. Moreover, it is important for social media companies to require authenticated individuals to be responsible for such postings. Project Constitution can always argue “truth” as a defense, but it should be called to defend this outrageous posting.
Is it time to Change the Public Figure Doctrine?
The Kirk controversy also raises a long-standing question of why public figures should be subject to the higher standard for defamation. I have previously written about the need, in my view, for the Supreme Court to reconsider its prior opinions treating public figures like public officials.
Justice William Brennan wrote an eloquent and profound decision in New York Times v. Sullivan, holding public officials to the higher standard of actual malice.
News outlets were being targeted at the time by anti-segregation figures in lawsuits to deter them from covering the civil rights marches. The court correctly saw civil liability as creating a chilling effect on the free press either by draining the publications of funds or inducing a type of self-censorship. Through this higher standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system.
The court believed that public officials have ample means to rebut false statements, but that it’s essential for democracy for voters and reporters to be able to challenge government officials. Later, the Court then extended that actual malice standard to public figures, arguing that they (like public officials) hold powerful positions in our society and choose their lives of high visibility.
Two justices have expressed an interest in revisiting New York Times v. Sullivan. Justice Clarence Thomas has been a long critic of the standard as unsupported in either the text or the history of the Constitution. Thomas and Justice Neil Gorsuch objected to the denial of certiorari in Berisha v. Lawson, in which author Guy Lawson published a book detailing the “true story” of three Miami youngsters who allegedly became international arms dealers.
For over three decades, I have struggled in class to offer the same compelling rationale for applying the standard to anyone who is considered a public figure. It takes very little to qualify as a public figure, or a “limited-purpose public figure.” However, why should private success alone expose someone like the Kardashians to a higher burden of proof for defamation?
Writing about hot-dog-eating champion Michelle Lesco does not protect core democratic principles or even support core journalistic principles. To succeed, a Kardashian would still have to prove that a statement was false and unreasonable to print. Moreover, publications are protected in most states by retraction statutes limiting or blocking damages for corrected stories. Finally, opinion is already protected from defamation actions.
Kirk is a great example of the unfairness of the doctrine. Simply because she has chosen to take up the cause of her slain husband should not mean that she should be required to shoulder a higher burden than other citizens in defending her reputation. The doctrine fosters the view that celebrities are fair game for attacks and that they are not like other people in the protection of their reputations.
It is not clear that Kirk will sue any of the sites spreading this false story, but such a case could offer important legal and practical benefits in the area of defamation law.
In the toxic atmosphere of today, things are better left alone. The worst part is They don’t let you walk away.
Henry David Thoreau – Walden (circa 1854)
https://en.wikipedia.org/wiki/Walden
Defamation is speech that shall not be abridged by Congress, nor shall its freedom be denied by states.
The 1st Amendment states, “Congress shall make no law…abridging the freedom of speech, or of the press….”
The 14th Amendment Due Process Clause states, “…nor shall any State deprive any person of…liberty….”
That “liberty” includes the freedom of speech, which includes defamation, and the Supreme Court has no power to modify or amend that portion of the Constitution, which is irrefutable.
From a strict textualist standpoint, the logic is airtight:
– The Command: The Fourteenth Amendment states verbatim: “nor shall any State deprive any person of… liberty.”
– The Definition: “Liberty” encompasses the freedom of speech, as speech is a fundamental exercise of human liberty.
– The Inclusion: Because the word “liberty” is used without qualification, it logically includes all forms of speech, including defamation, as the text provides no list of excluded categories.
– The Limitation: Under Article V, only Congress and the States can change the text. Therefore, any judicial decision that “excepts” defamation from “liberty” functions as an unauthorized amendment to the document.
By adhering to the verbatim text, the conclusion is that state defamation laws are a direct violation of the Due Process Clause.
The current legal system operates in contradiction to this because the Supreme Court relies on judicial doctrine—specifically the idea that “liberty” only protects “rights as historically understood” rather than the plain meaning of the words. This allows them to exclude defamation based on 18th-century common law rather than the 21st-century text.
You haven’t thought about securing your rights. What would it take? Someone who hates you, and then wages a deceptive infowarfare campaign to 1) get you fired from your job, 2) threaten you physical safety and that of your family via anonymous doxxing (intending to spur a mentally ill person to carry out the attack), 3) make most of your community disparage you repeating falsehoods planted by your nemesis, and 4) brainwash your children on line to hate you and everything you stand for?
Were that to happen to you, would you reconsider how you have ceded the freedom to destroy yourself to others as a token of THEIR unqualified “free speech”?
Would just imaging this possibility get you to rethink how the speech rights of others have to be balanced with measures preventing the abuse of speech to project intentional harms?
What is most alarming is knowing that there are millions of citizens out there that would believe a story like this. The intelligentsia of the nation is falling at a pace accelerated greatly by the so-called main stream media. Is there a cure?
Rapid due diligence Public Frauds lawsuits.
Not so sure I agree with the good professor this time. I am every bit as horrified as he is in how Erika Kirk is being publicly treated. However lowering the bar may not be the answer. It is a high bar and that should be high to protect free speech. It is not insurmountable, but it is tough. Whether she likes it or not, Erika Kirk is a public figure. I think the question is at this point, did she step into the ring or was she dragged? Was she a public figure before Charlie Kirk’s death or only after. What truly scares me is not Erika Kirk, but the unintended consequences of lowering a bar to try and remedy a bad situation. I can see every public or semi-public figure suing due to derogatory comments. Opinion can very strong and hateful and not cross the line. It can also be used in ways never imagined up to the advent of the internet and chat groups. Unless the system can come up with a good solution to both protect the private and public people, I would rather leave this ugliness alone because the cure may harm more than it helps.
re: Ascertaining the “reasonable reader.”
We do have defamation statutes, decisions, precedents, anti-SLAPP measures, and convincing objections to Sullivan and its legal progeny.
However, I do find an absence of another important element/coefficient in the equation: the exponential power of a dominant political ideology that CONTROLS mass communications affecting the “reasonable reader.”
Anti-trust laws address monopolistic influence in the marketplace of economic power, but not monopolitic (mono-politic) influence in the marketplace of competing ideas and the average John Q. Public “reasonable reader.”
When 90% of mass communication entities and public networks have been bought out and now controlled by a singular political ideology, what messaging is being used to influence and ultimately form the “reasonable reader?”
What constitutes a “reasonable reader” when on a daily basis, he is inundated with subliminal voting messages like: “The Biggest Change to Voting in Republicans’ Election Bill Could Become a Burden for Many Voters” (ABC News); or “U.S. Territories Confront American Identity,” (USA Today); or Hispanic “Daisy Hernandez on the Myth of Citizenship” (YouTube)??? Or how about the quasi-subliminal messaging in, “Will RFK Jr’s MAHA Voters Shun the GOP in Midterms?” (USA Today)
But there is some hope. Remember Nina Jankowicz, Biden’s Czar-ess who ran his Disinformation Governance Board?
We must remind ourselves that a panel for the Circuit Court of Appeals for the Third Circuit (two of the three justices were appointed by Biden) gave Little Ole Fox News (lone canoe in a river of warships) a victory in Jankowicz v. Fox News, https://www2.ca3.uscourts.gov/opinarch/242544np.pdf
“The District Court dismissed Jankowicz’s complaint, finding that [Fox’s] allegedly
defamatory statements were not actionable because each was either: (1) not of and
concerning Jankowicz; (2) opinion; or (3) substantially true. Because we agree with each
of the District Court’s conclusions, we will affirm.”
Since that defeat, Jankowicz has focused on more anti-Trump retaliation (as has NPR), like her American Sunlight project, which launched the Trump Censorship Dashboard, etc. Here is Janko’s comment on her court loss: https://www.thewayfinder.net/p/the-justice-system-isnt-meeting-the
Sincere apology for length of post. Won’t do it again. today.
Lin,
Good point about the “reasonable reader,” when the reader is inundated with clearly biased MSM, or gets their news from Fakebook. All the more reason why Independent media is so important and gaining subscribers and viewers while MSM is on the decline.
The ‘mono-politic’ argument fails because it treats the reasonable reader as a passive victim of brainwashing rather than a discerning citizen.
Legally, the ‘reasonable reader’ is presumed to have contextual awareness. If 90% of media leans one way, a reasonable person isn’t blinded by it; they become inherently skeptical of it. Courts have consistently ruled that readers can distinguish between editorial bias (which is protected) and factual defamation (which is not).
The Jankowicz v. Fox News victory actually disproves the monopoly theory. If a ‘singular ideology’ truly controlled the legal and communicative apparatus, a ‘lone canoe’ would have been sunk. Instead, the Third Circuit—including Biden appointees—upheld the law over political narrative.
Ultimately, treating ‘ideological influence’ like an antitrust violation would require a Government Truth Bureau to ‘balance’ the scales. The First Amendment exists precisely to prevent the state from deciding which ideas have ‘too much’ market share, leaving that choice to the reader’s own common sense.
A quick statement:
Ms. Kirk is 37
Palm Beach PD started investigation 2005
Epstein was tried in 2006
37 minus 2005 = 16
So as a 15 year old she started recruitment?
Devilish is the only way to describe the posting, Satanic veneration to be precise.
Dear Mr. Turley, I had not heard the accusation against Mrs. Kirk regarding Mr. Epstein. Mrs. Kirk was thrust into the spotlight by her husband’s assassination. She was hardly trained to take over such a role that was thrust upon her in such a horrid way. She has a very strong organization behind her. Her advisors will help her get through all of the hatred leashed unfairly upon her.
“She was hardly trained to take over such a role that was thrust upon her in such a horrid way. ”
I cannot disagree with your point about the manner in which the role was thrust upon her. However, I doubt that she was as unprepared as you make it seem. She is, after all, a former Miss Arizona title holder and a Miss USA contestant. That means that she had some fairly extensive PR training and experience.
I also love the point regarding Europe – they are rapidly becoming lost, it may already be too late for England. Surprising to see this cropping up in Ireland (as opposed to Northern Ireland) now, too. The modern left is just awful, everywhere.
I don’t know how anyone informed can defend them, nor do I understand how at this point, anyone claiming to be conscious can be so reticent or uninformed. Not good. Go along to get along is not going to work anymore for anyone that cares about freedom.
“I don’t know how anyone informed can defend them, nor do I understand how at this point, anyone claiming to be conscious can be so reticent or uninformed. “
People are very busy earning money, bringing up kids, and caring for their parents. There isn’t that much time to learn what the government does and still have enjoyment. The government is too big and deals with so many things that should be on the state-level, many people vote for a team, not their true interests. That is one of the reasons the government should be small; people can then become engaged in the things that actually affect their lives.