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: https://dn790006.ca.archive.org/0/items/JeffreyEpstein/Sarah%20Kellen%20Redacted%20Probable%20Cause%20Affadavit_text.pdf 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.