MANHATTAN (CN) — The Second Circuit weighed Thursday whether to revive a Trump supporter’s defamation claims against MSNBC host Joy Reid over social media posts that depicted a fiery argument over immigration policy at a California city council meeting.
Roslyn La Liberte, the California woman seen in a 2018 viral photograph wearing a bright red Make America Great Again hat while appearing to yell at hoodie-wearing Latino teenager, is seeking a second chance on appeal to advance her claim that Reid had falsely characterized her as yelling racist and anti-immigrant slurs in the photograph that Reid had reposted on Twitter, Facebook and Instagram.
Although video footage of the city council meeting in Simi Valley, California, also shows the boy and La Liberte hugging after their exchange, an activist named Alan Vargas tweeted the photograph and seemed to suggest that what was being yelled at the boy included, “You are going to be the first deported… dirty Mexican.” Vargas’ post was retweeted by Reid, who published the post to her 1.24 million followers.
La Liberte recounted this sequence of events in a federal complaint against Reid filed in September 2018, alleging the viral social posts from the “AM Joy” host caused her to receive death threats among “hundreds if not thousands of hate messages.”
The suit was filed in the Eastern District of New York, where Reid lives. Last September, a Brooklyn federal judge tossed La Liberte’s defamation suit for failing to show that Reid had acted with actual malice when she made the social media posts.
U.S. District Judge Dora Irizarry, a George W. Bush appointee, held that La Liberte was a limited purpose public figure because she had voluntarily injected herself into a specific public controversy — the California Values Act, a so-called “sanctuary city” bill that ensures no state and local resources are used to assist federal immigration enforcement.
As a limited purpose public figure, La Liberte had failed to satisfy the actual malice standard by alleging that Reid’s defamatory statements were made with knowledge of their falsity or with reckless disregard for their truth, Irizarry ruled.
The judge noted in her order that La Liberte attended and spoke about the bill, also known as SB 54, at multiple city council meetings around California and had even appeared in a photograph in the Washington Post about the bill’s controversy a month prior to the city council meeting in Simi Valley.
In her brief to the Manhattan-based Second Circuit, La Liberte’s attorneys argued that the district court erred in holding that she is limited purpose public figure because she did not assume a position of prominence in a public controversy.
He lawyers also alleged on appeal that they had pleaded the plausible theory of actual malice
“Based upon Reid’s experience as a journalist, her pre-existing bias toward President Trump supporters, and her blind reliance on a biased source, Reid either knew that the accusations were false or was reckless as to whether they were false,” the brief states.
During 45-minute remote teleconference on Thursday, U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee, opened the door for the prospect of remanding the case back to the district court for evidence gathering.
“If you had discovery, you’d get internal memos,” Jacobs said. “Internal memos indicating hostility and a disregard for truth and the opportunity to make an example of somebody that defendant disagreed with.”
“I’m not saying such a document exists, but if a document existed, it would be telling,” the judge ruminated.
Taken aback by the judge’s proposal, Reid’s attorney John Reichman from the Manhattan firm Wachtel Missry quickly replied that there is no basis to believe that such a document would exist.
“It’s not something that would be done in an ordinary course of business or anything like that,” Reichman told Jacobs.
Meanwhile, La Liberte’s attorney Taylor Wilson said his client is entitled to the more developed court record that would be derived from discovery.
“There is no evidence, as the court has pointed out, because there is no discovery,” said Wilson, an attorney with the Atlanta firm Wade, Grunberg & Wilson
Wilson said the district court decided “for itself that it’s plausible that Ms. Reid didn’t act with actual malice.”
“She never even addressed in her order, didn’t even attempt to address in her order, the circumstantial evidence that Mrs. La Liberte has alleged to show a plausible case of actual malice and that discovery, as Judge Jacobs rightfully pointed out, right now is a black box and may reveal evidence of actual malice given the recklessness that’s been plead,” he added.
Reichman reiterated the language of the district court’s ruling that La Liberte was a public figure who was required to show that Reid had acted with actual malice when she made her social posts.
“Plaintiff was an aggressive public opponent on SB 54. She went all over the state testifying against it,” he said. “This was enough to make her a public figure, but she also sought the spotlight. She put herself at the forefront of the opposition to SB 54 and obtained special prominence through her conduct in opposing a law.”
Reichman added, “It’s not enough, as the plaintiff claims, that Ms. Reid failed to investigate or had a political bias against Donald Trump.”
On rebuttal, Wilson argued that characterizing La Liberte as a public figure chills the free speech of private citizens.
“Her sole voluntary conduct prior to the accusations was her civil duty in appearing at city council meetings,” he said. “I don’t think we want our citizens to be weighing the benefits of participating as private citizen versus the risks of being libeled.”
Reichman said during the Second Circuit hearing that the district court also had it right when it found that Reid’s social media posts juxtaposing the shot of La Liberte at the city council meeting alongside a photograph of civil rights protesters in Little Rock, Arkansas, in 1957 did not defame her as a racist.
“The plaintiff’s position that the post accused Ms. Liberte of making racial slurs recalls the old Marx brothers line ‘who are you going to believe, me or your eye?’” he said, noting that the post’s caption makes reference to “rage not racism” and has the hashtag “#chooselove”.
Reid has asked the court to award her over $150,000 in fees and costs under a provision of California’s anti-SLAAP statute, which aims to protect defendants from meritless lawsuits that might stop them from exercising their free speech rights in matters of public interest.
Jacobs was joined on the panel by U.S. Circuit Judges Amalya Kearse, a Jimmy Carter appointee, and Jose Cabranes, who was appointed by Bill Clinton.
It is unclear when the judges will issue a ruling in the case.