CINCINNATI (CN) – The inclusion of a question mark in a tweet posted by conservative actor James Woods about a woman giving a Nazi salute at a 2016 rally for then-presidential candidate Donald Trump lends enough ambiguity to the message that it is not defamatory, a Sixth Circuit panel ruled Wednesday.
Portia Boulger, a Bernie Sanders supporter, sued Woods for defamation in 2017, after the actor tweeted a photo of Boulger alongside one taken of a woman giving the “Heil Hitler” salute at a Chicago rally for Trump.
Woods suggested Boulger may have been planted at the event, but it was eventually determined the woman giving the Nazi salute was Birgitt Peterson, a Trump supporter.
The actor’s March 12, 2016, tweet – which was retweeted by Donald Trump Jr., among others – read, in part, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”
Woods, who currently has over 2 million followers on the social media site, issued a correction after several news outlets identified the woman at the rally as Peterson.
He also eventually deleted the tweet and issued an apology to Boulger.
U.S. District Judge George Smith in Ohio granted Woods’ motion for judgment on the pleadings, finding the question mark at the end of his original tweet allows for multiple interpretations.
Boulger appealed, and the case was argued in front of the Sixth Circuit last October.
In Wednesday’s opinion, authored by Chief U.S. Circuit Judge R. Guy Cole Jr., the panel of judges upheld Smith’s ruling.
The three-judge panel used Ohio’s “four-prong, totality-of-the-circumstances test” to determine whether Woods’ tweet constituted a false statement of fact, and, for the first time, “confronted the issue of whether questions can (or cannot) be defamatory.” (Parentheses in original.)
“Some readers,” Judge Cole wrote, “likely viewed the tweet as an insinuation that the woman in the Nazi salute photograph was Boulger. It seems equally plausible, though, that other readers interpreted the tweet as posing a question.”
Consequently, Cole held the first prong of the test – specific language used – weighed against Boulger’s defamation claim.
The verifiability of the statement is the second prong of the four-factor test, but because the tweet was posed as a question, Cole determined it weighed in neither party’s favor.
The judge moved on to the final prongs of the test, “general and broader context of the statement,” and analyzed them together.
The panel analyzed Woods’ tweet in the context of all the tweets he sent on March 12, 2016, and found that “although he posted news articles, his tweets were frequently accompanied by his own colorful commentary.”
“These tweets,” Cole wrote, “illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole – characteristics more likely seen in an opinion, rather than a statement of fact. Thus, the general context could lead a reasonable reader to believe the tweet at issue was not a statement of fact.”
Cole opined that because Twitter is a medium that allows for the dissemination of both factual news stories and opinion, the broader context of the tweet did not weigh in either party’s favor.
The panel then turned to Ohio’s “innocent construction” rule, which holds that “a statement reasonably susceptible to both a defamatory and an innocent meaning must be construed, as a matter of law, to have an innocent meaning.”
“Here,” Cole concluded, “the tweet at issue is reasonably susceptible to both a defamatory meaning – that Woods was asserting Boulger was the woman giving the Nazi salute – and an innocent meaning – that Woods was merely asking his followers a question. Because Woods’s tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, is not actionable.”
U.S. Circuit Judges Helene White and John Nalbandian concurred in Cole’s opinion, although Nalbandian wrote separately to argue that the four-prong test should not have been used.
Nalbandian cited the 2000 Ohio Supreme Court case McKimm v. Ohio Elections Commission, saying he “would resolve this case by asking how a reasonable reader would interpret the offending tweet.”
“Applying this standard,” he continued, “I would affirm the district court because a reasonable reader would interpret the tweet as posing a genuine question. An ordinary person sees a question mark and assumes the writer is asking a question. … Woods posed the question and provided two different pictures that the reader could look at to provide an answer, suggesting he meant it as a genuine inquiry.”
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