Defamation requires a false statement of objective fact, not opinion. This applies even on the social-media platform formerly known as Twitter where one can find many more opinions than facts. Our friends at Thomas P. Howard, LLC explore the one defamation case below.
Nate the Lawyer v. Bot Sentinel
In Broughty v. Bouzy, No. 22-6458 (SDW) (JRA), 2023 WL 5013654 (D.N.J. Aug. 7, 2023), Plaintiff Nathaniel Broughty (a former University Police Officer of the City of New York, a member of the New York Bar, a former Bronx County Assistant District Attorney, and former law school instructor who created and operates a YouTube channel under the alias “Nate the Lawyer”) sued Defendant Christopher Bouzy (the chief executive officer of Bot Sentinel, a New Jersey corporation that purports to fight disinformation and harassment on Twitter) for defamation.
In September 2022, Bouzy tweeted that Broughty had engaged in “disruptive” and “troll-like behavior” on Twitter
On September 17, 2022, Bouzy posted a number of tweets that questioned Broughty’s legal credentials. The following day, Bouzy conceded that Broughty was a lawyer, and Bouzy admitted that, when he made an earlier claim about not being able to find any record of Plaintiff practicing law, he “already had the information” but was “waiting for someone else to tweet it” so he would not be accused of inappropriately sharing Plaintiff’s real name on social media. But Bouzy also continued to call Broughty a “grifter” and a “liar” in personal attacks posted on Twitter.
On September 21, 2022, Broughty’s counsel sent a letter to Bouzy demanding the defamatory tweets cease. The lawsuit was filed in the Superior Court of New Jersey on October 28, 2023, and removed to the District of New Jersey on November 4, 2022.
Limited Purpose Public Figure
Where the plaintiff is a public figure, the First Amendment requires that the allegedly defamatory statement was made with “actual malice”—that is, with either knowledge that it was false or with reckless disregard for the truth. New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964)); see also Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000).
An otherwise private individual who is not a household name may be a limited-purpose public figure, however, if he “has taken an affirmative step to attract public attention.” James v. Gannett Co., 353 N.E.2d 834, 840 (N.Y. 1976); see Gottwald v. Sebert, 2023 WL 3959051, at *2-3, — N.E.3d — (N.Y. 2023) (overturning lower court’s ruling that a music producer who purposefully sought media attention was not a public figure). The actual malice inquiry is “a subjective one, focusing on the state of mind of the publisher of the allegedly libelous statements at the time of publication.” Kipper v. NYP Holdings Co., 912 N.E.2d 26, 30 (N.Y. 2009).
In Broughty, the District of New Jersey found that Broughty was a limited-purpose public figure because he purposefully sought public attention and followers by creating YouTube and Twitter content on matters of public interest, including analysis of the Depp-Heard trial and criticisms of Bot Sentinel. See McCafferty, 955 F.3d 352, 359 (finding an individual who posted political videos on Facebook was a limited-purpose public figure).
Self-Help Remedy to Defamation on Twitter
Broughty’s defamation claims require that Bouzy made a false statement of fact with knowledge that it was false or with a reckless disregard for the truth.
Crucially, the “over-all context” in which the alleged defamation occurred here is Twitter. As both parties are well aware—given that both have engaged in calling out mistruths on the Internet—Twitter is a public forum where a reasonable reader will expect to find many more opinions than facts. See Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC, 151 F. Supp. 3d 287, 295 (E.D.N.Y. 2015) (“New York courts have consistently protected statements made in online forums as statements of opinion rather than fact.” (collecting cases)); See Franklin v. Daily Holdings, Inc., 21 N.Y.S.3d 6, 12-13 (N.Y. App Div. 1st Dep’t 2015) (noting that a tweet does not give the same impression of truth as a newspaper article). Moreover, Twitter is a forum where a user, “in the same setting and with the same audience, has the immediate opportunity to air his competing view” and thus may generally remedy any defamation with “self-help” rather than rely on litigation. 600 W. 115th St. Corp., 603 N.E.2d at 934.
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Defendant’s tweets questioning whether Plaintiff was a lawyer are protected First Amendment speech because a reasonable reader would only view them as opinions, and the facts upon which they were based were disclosed, so “readers can easily judge the facts for themselves.” McCafferty, 955 F.3d at 357; see Davis, 22 N.E.3d at 1004; Gross, 623 N.E.2d at 1169. Defendant’s first statement inferring that Plaintiff was not a “real lawyer” was plainly based on the fact that he “[couldn’t] find [Plaintiff] in the database where he claims he practices law,” and this tweet included a link to the New York Courts website. (Compl. ¶ 76.) Plaintiff concedes that the name he used on social media was not his real name, so that it was not false for Defendant to say he could not locate Plaintiff’s bar number or find him in the attorney database.
With respect to the allegation that Bouzy “already had the information” regarding Broughty’s online persona (but was “waiting for someone else to tweet it” so he would not be accused of inappropriately sharing Plaintiff’s real name on social media), the Court found it was unclear what “information” Bouzy had.
This statement does not demonstrate that Defendant knew at the outset that Plaintiff was in fact a lawyer under another name. . . . [A]ssuming that the information was Plaintiff’s real name, Defendant’s statement that there was “no history of him practicing” is still substantially true with regard to the social media persona he was apparently referencing.
The Court dismissed the defamation claims without prejudice, and gave Broughty thirty days to file an amended complaint. In navigating these kinds of defamation cases, seeking counsel from a litigation lawyer can provide invaluable insights and direction.