CINCINNATI (CN) – A Bernie Sanders supporter argued Tuesday before the Sixth Circuit to overturn a lower court decision finding that she was not defamed by actor James Woods’ tweet misidentifying her as an “agitator” making a Nazi salute at a Donald Trump campaign rally.
The actor’s tweet featured a post that included Trump supporter Birgitt Peterson making the “heil Hitler” salute, but U.S. District Judge George Smith in Ohio ruled in January that Woods’ misidentification of Peterson as Sanders supporter Portia Boulger was “susceptible of more than one interpretation.”
Boulger had sued Woods for defamation after his tweet – which included the language “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” – was retweeted more than 5,000 times, including by President Trump’s son, Donald Trump Jr.
Boulger claimed Woods failed to delete the tweet immediately after he admitted he had misidentified her, and alleged in her complaint she had received death threats.
Although Judge Smith admitted the tweet was “highly offensive,” his opinion and ruling focused heavily on the question mark at the end of the tweet, which he said “cannot be ignored.”
“Here,” he wrote, “the court can certainly envision a reasonable reader interpreting Woods’s tweet as an assertion of fact that Boulger and the woman giving the Nazi salute are the same person.”
“However, it cannot say as a matter of law that all reasonable readers would interpret the tweet in that way. The question mark leaves open the real possibility that reasonable readers would interpret the tweet as a mere inquiry signaling Woods’s lack of certainty and inviting his followers to reach their own conclusions.” (Emphasis in original.) Attorney Joseph Sandler argued Tuesday on behalf of Boulger before a Sixth Circuit panel, and called Judge Smith’s ruling “mistaken.”
Chief U.S. Circuit Judge R. Guy Cole Jr. asked Sandler for his best argument that Woods’ tweet was a statement of fact.
“[The tweet] is essentially a rhetorical question,” the attorney responded.
“Then why is the question mark there?” U.S. Circuit Judge Helene White interjected.
Sandler admitted he didn’t know, but likened the tweet to someone asking incredulously, “can you believe this?” and then reminded the panel that the standard for defamation cases is the interpretation of the “average reasonable reader.”
Sandler also spoke about Woods deleting the tweet, which occurred over 10 days after the original tweet was posted, and likened it to a newspaper posting a correction to a factual statement.
“He characterized his own tweet as an observation,” Sandler said, adding, “You don’t post a correction of an opinion.”
Throughout the argument, Chief Judge Cole asked both sides what contextual standard should be used in cases regarding Twitter.
While Cole admitted there is “some factual content” on the social media site, he classified most of its content as “commentary.”
Attorney Patrick Kasson argued on behalf of Woods and cited Ohio’s “innocent construction” rule, which he said affords greater free-speech protections in defamation cases than federal law.
Ohio law dictates that if more than one reasonable interpretation can be inferred from a potentially defamatory statement, courts must adopt the non-defamatory interpretation.
“We know,” Kasson said, “[that] before any lawyers got involved … he indicated … she’s not [the Nazi salute woman]. … It’s not like his arms were twisted to say this.”
The attorney echoed Chief Judge Cole’s opinions on Twitter, and told the panel the site “is a personal medium.”
He argued that a user who retweets a news source is not held liable if the original tweet ends up being incorrect, and that the same should hold true for his client.
Kasson urged the court to look at the tweets posted on Woods’s account around the same time as the Boulger misidentification, and argued that none of them included question marks.
“I don’t think you need to go past the innocent construction rule,” the attorney said. “You clearly can interpret it as a question.”
U.S. Circuit Judge John Nalbandian, who was appointed to the Sixth Circuit in May of this year, rounded out the panel.
No timetable has been set for the court’s opinion.