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Julie Hilden

A Landlord/Tenant Defamation Case Highlights the Risks of Twitter


Tuesday, February 2, 2010

On January 20, Cook County, Illinois Circuit Court Judge Diane Larsen threw out a defamation suit that had been brought by a realty-management company against a Chicago renter. The suit was based on comments that the renter had posted on Twitter. (As readers likely know, Twitter is a social-networking service that allows its users to broadcast -- to those who opt to become their "followers" -- messages of 140 characters or fewer, which are called "tweets.")

Judge Larsen's terse ruling simply stated that "the court finds the tweet nonactionable as a matter of law." She reportedly added at a hearing in the case that the tweet was "really too vague" and "lacks any context."

The plaintiff was Horizon Group Management LLC. A representative of the company told the Chicago Sun-Times, "We're a sue first, ask questions later kind of an organization." (He later asked that the statement be disregarded, however, as he said it was tongue-in-cheek.)

The defendant was twenty-five-year-old Amanda Bonnen, who had been Horizon's tenant at the time of the tweet. Bonnen's tweet read as follows: "@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty [sic] thinks it's ok."

Reportedly, Bonnen had only about twenty Twitter followers at the time of the tweet. However, her profile was "public," meaning that, in theory, anyone could have read her Twitter postings.

The judge's decision to dismiss the suit seems to be a case of administering rough justice and protecting the "little guy" from a company that styled itself (humorously or not) as a proud repeat player in the litigation game. Looking exclusively to the equities here, it seems likely that Bonnen's tweet did little, if any, damage to Horizon in light of her small number of followers. Indeed, Horizon's own defamation suit probably publicized Bonnen's moldiness claim far more effectively than Bonnen's own tweet ever did. Yet Horizon demanded $50,000 in damages from Bonnen for the tweet – and doubtless, its suit forced her to incur significant legal fees on top of that.

Significantly, this lawsuit is worlds away from the recent, well-known Twitter defamation suit involving a tweet by Kim Kardashian, who criticized a celebrity diet doctor and his diet. (I recently wrote about that suit here.) There, both parties had excellent media access and the "deep pockets" necessary to litigate: It was Goliath versus Goliath. There, too, the significant number of followers that Kardashian boasted showed that what she said truly could have a strong impact, so that the diet-doctor plaintiff's claims that real damage had been done when she called the diet at issue "unhealthy" were not at all fanciful.

Yet, there are legitimate questions to be raised about Judge Larsen's decision. Judges' decisions are supposed to be based upon the law, not upon the equities – and, as I will explain, the law arguably should have compelled the judge to let Horizon's suit go forward, however reluctantly. In other words, even though this case was one of David versus Goliath, Goliath likely had the better of the legal argument.

Should the Case Have Been Dismissed? Libel Law's "Statement" Requirement

A defamation claim must be based on a false statement that is "of and concerning" the plaintiff, that is made with the requisite level of intent (which varies depending on whether the plaintiff is a public or private figure), and that causes damages. Judge Larsen's ruling suggests that she did not see a concrete "statement" being made here. But I believe the better answer is that a statement was indeed made by Bonnen's tweet.

Here, again, are the words of Bonnen's tweet: "@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty [sic] thinks it's ok." I believe that virtually any reasonable person would interpret this tweet to mean that Bonnen was urging her friend "JessB123" to come visit her in her Horizon Realty-owned apartment, yet also warning her friend that the apartment was moldy and the owner didn't care.

Granted, the issue of the tweet's meaning is muddied somewhat by the fact that it seems to be part of some ongoing discussion with "JessB123" about her visit, to which the reader of this lone tweet isn't privy.

Also muddying the issue is Bonnen's use of sarcasm. Bonnen surely knew that sleeping in a moldy apartment isn't a good idea. Thus, she was plainly invoking Horizon in order to sarcastically mock the company, not to sincerely invoke its authority on mold-dangerousness issues.

Yet despite these muddying factors, I believe that if you asked a hundred people on the street whether the person who wrote this tweet was claiming that, in fact, she lived in a moldy apartment, I think virtually all of them would say that yes, she was making such a claim.

In other words, the post is sarcastic, but it's not all that cryptic. The meaning was clear enough, in my view, to satisfy the "statement" requirement – even though part of it was phrased as a question.

Why Punctuation Can't Be the Be-All-and-End-All of a Defamation Suit

After all, imagine what would happen if writers – or Twitter users -- could defeat libel law's "statement" requirement simply by prefacing partial statements with sarcastic questions. You might see headlines like "Who Said You Can't Get Away with Murder? John Doe Sure Thinks You Can." Yet who would really question that these words accuse John Doe of murder?

Generally, libel law's "statement" requirement turns on the message sent, not the punctuation used. And if that weren't the case – if punctuation were the whole ballgame -- then evading the law's penalties would be child's play.

Granted, at times something that is very close to a statement still slips through libel-law's net: For instance, when we read on the cover of a tabloid, "Did Angelina Cheat on Brad?," we can be pretty sure what the tabloid wants us to think the answer is. (That would be "Yes.") Still, the use of the question mark is a warning that the tabloid lacks confidence in the veracity of the claim – and that we should lack confidence in its veracity, too. Accordingly, the "statement" requirement is not fulfilled.

No such warning was included when Bonnen said, in effect, that "Horizon realty thinks [sleeping in a moldy apartment is] okay."

Legal Realism Versus Legal Formalism: Did the Judge Ultimately Make the Right Call?

In sum, I think that the best legal answer, in this case, is that Horizon's defamation claim was valid, and should not have been dismissed. The statement was confident, not tentative.

Yet I still understand why the judge ruled as she did: She likely thought that, in the end, Horizon would never be able to prove that it had incurred any but the most minimal damages as a result of Bonnen's tweet. At the same time, the judge doubtless knew that, during the progress of the litigation, Bonnen would have to spend a lot of money on lawyers' fees to prove a point that should be obvious: A Twitter user with only about 20 followers is unlike to do any significant damage to a large company, especially with a single tweet.

Whether one thinks that the judge made the right call may depend on whether one is a legal realist – more concerned with equities and outcomes – or a legal formalist, more concerned with the integrity of concepts and rules. The problem here for a formalist is that, in the future, there are likely to be valid and important libel cases that are based on statements no less vague than the one Bonnen made in her tweet. To ensure that those future, valid cases stay on the docket, Judge Larsen should arguably have kept the case against Bonnen – weak as it was -- on the docket, too.

Possibly, Judge Larsen could have split the difference in the Bonnen case by inviting limited discovery on damages, followed by a partial summary judgment motion on damages. In that way – if local rules allowed it – the judge might have focused on the real problem with the case (lack of damages), while also keeping Bonnen's legal fees relatively low. In this way, perhaps both David and Goliath could have been treated fairly.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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