COLUMBUS, Ohio (CN) – In a ruling that hinged on the actor’s use of a question mark, a federal judge rejected claims that James Woods defamed an Ohio woman by identifying her on Twitter as a Bernie Sanders “agitator” who had made a Nazi salute at a Donald Trump campaign rally.
Portia Boulger sued Woods – a Hollywood conservative known for his work in “Casino," "Salvador" and "Once Upon a Time in America” – last year in Columbus, Ohio, federal court.
She alleged that Woods defamed her by tweeting out a post that falsely claimed she was a Bernie Sanders supporter who was planted at a March 2016 Trump campaign rally in Chicago and photographed giving a Nazi salute.
On Wednesday, U.S. District Judge George Smith threw out the case, finding that Woods had not defamed Boulger because his post could be seen as posing a question about her identity and was “susceptible of more than one interpretation.”
Because courts usually treat questions as non-defamatory statements, Woods is entitled to the benefit of the doubt, the judge ruled.
On March 11, 2016, the Chicago Tribune first published a photograph of a woman, later identified as Birgitt Peterson of Yorkville, Ill., with her right arm aloft in a “Heil Hitler” salute at the campaign rally.
The rally was later cancelled because of security concerns. The image showed Peterson staring at a protester as she made the salute.
In an interview with the New York Times the next day, the elderly Trump supporter said she was upset because she believed that a group of protestors were unfairly comparing Trump to Hitler by displaying an image of the brutal dictator. She had raised her arm as form of counter protest, she said.
“They said Trump is a second Hitler,” Peterson told the Times. “I said do you know what that sign stands for? Do you know who Hitler really was?”
The day after the cancelled rally, Twitter user @voxday posted the photograph of Peterson next to an image of Boulger, who was a volunteer with the Sanders campaign and a pledged delegate for the Vermont senator.
The tweet stated, “The ‘trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.”
Minutes later, Woods posted the image on his Twitter page @RealJamesWoods, writing: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”
At that time, he had 350,000 followers (now, he has more than 1 million). Woods’ tweet was retweeted more than 5,000 times, including by Trump’s son Donald Trump Jr.
When it emerged that Boulger had been falsely identified in the photo, Woods conceded on Twitter that the two women were not the same person but did not immediately take down the offending tweet, according to Boulger’s lawsuit.
She demanded an apology and retraction. Woods deleted the tweet and later posted three tweets to explain.
The actor wrote in one post that “Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so.” In another, he wrote: “Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates.”
Boulger claims that she was flooded with obscene messages, death threats and phone calls to her home.
In his motion to dismiss, Woods argued that the offending tweet had invited readers to draw their own conclusions because he punctuated it with a question mark.
Without the punctuation, the case would have been “easy,” Judge Smith wrote in Wednesday’s ruling.
Even though readers might construe Woods’ tweet as a statement of fact, the question mark "cannot be ignored,” Smith said.
"Here, 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,” Smith wrote in the 28-page opinion. “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.”
There is little doubt that the tweet was “highly offensive” to Boulger and to assert otherwise, as Woods had done, was "disingenuous at best,” the judge noted.
But Smith threw out her false light invasion of privacy claim for the same reason he found Woods had not defamed her: the law requires Woods "to have made a false statement of fact.”
Boulger is represented by Zach West of the Ohio Democratic Party. He did not immediately respond Thursday to a request for comment.
Woods’ attorney Patrick Kasson was not in his office on Thursday and did not immediately respond to an email request for an interview.
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