[1.] An excerpt from the long decision in Braun v. Day, decided by Judge Mary Rowland (N.D. Ill.) Friday:
[Plaintiff] Propson is a resident of the state of Wisconsin and a licensed mortician. Propson operates at least one social media account under the handle "Lauren the Mortician," where she posts about matters related to her profession. [Defendant] Carter is likewise a social media personality and a self-described "life coach villain" who operates under the handle "@CaffinatedKitti." Carter is a citizen of Georgia.
On or around October 24, 2023, Carter published a video on TikTok where she accused Propson of being transphobic and a "TERF." Specifically, Carter said "Lauren the Mortician is a TERF, I have receipts, I have deets, and you should just go ahead and take a seat." "TERF" is an acronym meaning "trans- exclusionary radical feminist" that at least one dictionary defines as "an advocate of radical feminism who does not believe that transgender people's gender identities are legitimate, and who is hostile to the inclusion of trans-women in the feminist movement." "Receipts" and "deets" are slang words used to mean proof or evidence. Carter further explained that the "receipts" and/or "deets" referenced were evidence of Propson liking "incredibly transphobic and hateful rhetoric and content." Carter later explained that she made the post because people were confusing her for Propson.
Plaintiffs allege that because of Propson's online following, the allegations of her transphobia "spread quickly throughout the internet and became the source of multiple posts, comments, and blog articles." The allegations lowered her standing in the community, dissuaded people "in the content creation community" from associating with her, caused her to lose followers, and caused her to lose a contract with a travel documentary channel, various sponsorships, and a possible contract for a podcast deal….
The court concluded that these allegations were constitutionally protected opinion:
Carter allegedly stated that Propson is a "TERF," or trans-exclusionary radical feminist, and that she is transphobic. Propson alleges that "[b]eing called transphobic is akin to being called a bigot or a racist." The problem for Propson is that courts universally recognize that allegations of racism or bigotry are not actionable in a defamation claim because they express subjective opinions that cannot be proven true or false. See, e.g., Stevens v. Tillman (7th Cir. 1988) ("In daily life 'racist' is hurled about so indiscriminately that it is no more than a verbal slap in the face … [i]t is not actionable unless it implies the existence of undisclosed, defamatory facts."); Tannous v. Cabrini Univ. (E.D. Pa. 2023) ("A statement characterizing someone as racist, like a non-actionable opinion, is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation."); Garrard v. Charleston Cnty. School District (S.C. Ct. App. 2019), aff'd in part & vacated in part (2023) (claims in a newspaper editorial that a high school football coach and his players were "racist douchebags" were not actionable because they were expressions of opinion); Ward v. Zelikovsky (N.J. 1994) (defendant's claim that plaintiffs "hate jews" was nonactionable name-calling). Carter's claims that Propson is transphobic cannot on their own state a claim for defamation.
But Propson urges that, because Carter claimed she had "deets" and "receipts" of Propson's transphobia, her statement was one of "mixed opinion" rather than "pure opinion" and thus actionable. Indeed, Wisconsin law provides that this kind of statement may be actionable "if it implies the assertion of undisclosed defamatory facts as the basis of the opinion." But this argument also fails because the "facts" that Carter implied the existence of were neither undisclosed nor defamatory….
Propson alleges Carter called her transphobic because Propson "liked posts by a conservative social media personality." Carter then allegedly "compiled a list of posts" that Propson liked which contained "transphobic and hateful rhetoric," and she allegedly showed that list of liked posts in her public video. In other words, Carter explicitly disclosed the facts that formed the basis of her opinion. As to whether the facts were defamatory—the facts that allegedly formed the basis of Carter's opinion are not defamatory for the same reason the underlying statement is not defamatory. They are more non-actionable opinions. Propson does not dispute that she "liked" the allegedly transphobic social media posts; she only disputes whether the posts themselves were transphobic. And whether those posts were indeed transphobic is, like Carter's claim that Propson is transphobic, a matter of opinion that cannot form the basis of a defamation claim. Propson's claim for defamation fails because it is based on nonactionable opinion; she cannot save that claim by buttressing it with other opinions that are also not actionable….
Propson further argues that a claim of bigotry can be actionable if it is made with enough specificity to be verifiable, citing to Overhill Farms. The defendants there accused Overhill of being racist, of engaging in specific "racist firing" practices, and of discriminating against various groups of Latino immigrant workers. Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010). The court held that the statements at issue were "not merely a hyperbolic characterization of Overhill's black corporate heart—[they] represented an accusation of concrete, willful conduct." Here, there are no relevant accusations of concrete or willful conduct that can be proven or disproven. There is only Carter's belief that Propson is transphobic, buoyed by Propson expressing her opinion by liking posts that Carter also believed to be transphobic. This cannot support a claim for defamation. As a result, Count I of the amended complaint is dismissed with prejudice.
[2.] The court also rejected Braun's defamation claim based on the allegation "that Braun filed a "bad faith" or "false" copyright claim against her":
Plaintiffs assert that, in the defamatory TikTok video where Carter accused Propson of being transphobic, Carter used a copyrighted photograph belonging to Propson and a screenshot of copyrighted text that Propson authored. Propson hired Plaintiff Braun, an attorney and resident of Illinois, to file a Digital Millenium Copyright Act ("DMCA") complaint with the social media platforms hosting the video. Meta, the owner of one of those social media platforms, removed Carter's post and temporarily locked her account because of the DMCA complaint…
Carter then posted at least two videos on different social media platforms in which she accused Braun of filing "false copyright claims" and "bad faith copyright infringement strikes." Carter also began a GoFundMe page related to the DMCA complaint. On that page, Carter published a letter she had sent to Braun which contained the subject line "False Copyright Claim" ….
[Then] a new influencer entered the fray. Plaintiffs allege that Defendant Day is a self-stylized "unbiased content creator" and "independent investigative reporter" who has no journalistic training. Day allegedly creates content and monetizes videos that disparage social media creators and celebrities, and she has allegedly been accused of posting false and untrue statements about public figures….
Day posted a "deep dive" video about the dispute and posted that she had possession of "proof of another VERY large & well-liked content creator that is utilizing the same attorney that Lauren the Mortician has used ([Braun]) to harass a small creator on this app & misuse the copyright strike system to have her account taken down." In a separate video the next month, Day discussed another client of Braun's named "Demps" and accused Braun of filing "false copyright strikes" on Demps's behalf. Day is alleged to have learned about Braun's representation of Demps "by communicating with a stalker and anti-fan of Demps." …
With respect to Carter's assertions that any copyright strikes were in bad faith or "false," it is clear from the allegations of the complaint that Carter was only expressing her opinion that the copyright strike was baseless. Carter wrote that she "would love further details on your client and how the video had grounds for a copyright strike, as it clearly falls under fair use." Carter stated she did not agree that the at-issue video violated any copyright law and explained why—because she believed the fair use defense is available. And even if she was not expressing an opinion, the terms "bad faith" and "false" in this context are too vague and unverifiable to be actionable in a defamation claim.
Braun argues that Carter's claims are in fact verifiable because Meta removed the at-issue posts after Braun filed the DMCA complaint. This argument does not persuade. Meta is not an arbitrator of copyright disputes whose findings establish as a verifiable fact what is or is not copyright infringement. Carter is allowed to believe that Braun and Meta were wrong to find that she had committed copyright infringement and cannot be punished in a defamation action for voicing that belief.
[3.] On the other hand, the court allowed Braun's defamation claim (and some related claims) to go forward against another defendant, Marston, based on Marston's allegation that Braun had committed perjury:
Defendants Vazquez and Marston, hosts and owners of a weekly podcast, began covering the controversy. Vazquez and Marston played Day's video regarding Braun's representation of Demps on their podcast. In one episode, Vazquez says that Braun used "scare tactic[s] to represent her clients," issued "false copyright strikes," and was "unethical" and "unhinged;" Vazquez further states that she learned this from "a couple DMs" and "even an email from someone as well that is not a creator." Separately, in a tweet, Marston said:
I gotta say… one of our biggest questions in all of this, is do we think demps knows that her embarassing [sic] excuse for a lawyer is using her name while actively committing perjury? Someone might wanna tell her.
Publicly accusing a lawyer—or anyone—of committing a felony is no small thing. In Illinois, words imputing that a person has committed a crime are per se defamatory…. Marston's tweet—which came after an 84-minute podcast episode wherein Vazquez and Marston said that Braun was "unethical," "unhinged," and engaged in "scare tactics" in connection with her legal practice—specifically refers to Braun's representation of a former client and specifically accuses her of committing perjury, a crime, during that representation. During the podcast, Vazquez also said that she and Marston has received messages and at least one email describing Braun's practice, giving rise to the inference that one of the messages contained evidence of Braun's claimed perjury.
[4.] Finally, the court rejected plaintiffs' intentional infliction of emotional distress claim:
Both Plaintiffs' allegations fall short of what is required to state a claim for intentional infliction of emotional distress. The Court cannot reasonably infer from Propson's claims that Carter has subjected her to conduct so severe that no reasonable person could be expected to endure it. And Braun has not alleged that any Defendants have subjected her to conduct that goes beyond all possible bounds of decency.
To be clear, the Court is extremely troubled by the allegations that an "online mob" has followed both Plaintiffs around the internet, harassed them with threatening messages, and even gone as far as creating AI-generated pornography of Braun. This is appalling behavior. But the complaint does not allege that Defendants themselves engaged in this conduct, nor does it allege that Defendants directed "the mob" to do so. Plaintiffs have not identified any authority indicating that a defendant can be liable for intentional infliction of emotional distress based on the actions of non-parties—even if they were inspired by the defendant's otherwise non-actionable conduct.
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