New “Twibel” Defamation Opinion Suggests Online Speech May Be Special After All


Many lawyers smirked and scoffed a few months ago when the popular press began touting the Courtney LoveTwibel” trial as a “landmark” case that would set a “major precedent.” In fact, as discussed further elsewhere, it was nothing of the kind. In case you don’t already know, “Twibel” is just a silly concatenation of “Twitter” and “libel,” coined by the media to overhype a case which, apart from the involvement of a celebrity, was just a run-of-the-mill defamation claim that happened to involve Twitter. The excessive attention paid to the matter was premised on the notion that Twitter speech is somehow legally different than other speech, and the consensus among most attorneys was that this notion was nonsense.

However, an opinion issued on April 14, 2014 by Judge Dennis Saylor of the District of Massachusetts may cause some to rethink — not whether the Courtney Love trial was important (it wasn’t) — but whether defamation claims based on internet speech may be treated a little bit differently than claims based on traditional speech.

The Case of the Missing Horse

The facts alleged in Feld v. Conway are sparse. In November 2010, Mara Feld sent her retired racehorse away to become a companion horse. For reasons unknown, the horse disappeared en route and likely was slaughtered. The fate of the horse became the subject of online discussion.  In the context of that discussion, Christine Conway posted the following Tweet: “Mara Feld . . . you are fucking crazy!”

In 2013, Feld filed a complaint against Conway alleging that the Tweet was defamatory. Conway brought a motion to dismiss, arguing that the Tweet was protected opinion as a matter of law, and thus could not be the subject of a defamation claim.

Opinion and Context In Defamation Cases

Accusations of mental instability are often the basis for defamation claims, but many of them end up getting dismissed. This is because, in most cases, a court determines as a matter of law that the statement is not an assertion of fact, but rather a pure opinion protected by the First Amendment. Making this critical fact/opinion distinction requires that the court examine the statement in its totality and in the context in which it was published. For example, in Greenbelt Cooperative Publishing v. Bresler, the Supreme Court held that a newspaper had published protected opinion when it described a real estate developer’s negotiating position at a public meeting as “blackmail.”  When placed in context, which included the entire article and the newspaper’s multi-article coverage of the public meeting, it was clear “even [to] the most careless reader” that the use of the term was rhetorical hyperbole (i.e., opinion) and not the accusation of an actual crime (i.e., an assertion fact).

What is the Proper Context for Internet Speech?

Here, Feld argued that the proper context for analyzing the “fucking crazy” statement was the Tweet alone. Indeed, if you type Feld’s name into a search engine, the Tweet will come up by itself without any context. In other words, according to Feld, it’s as if the newspaper defendant in Greenbelt had simply printed “[Plaintiff] committed blackmail” by itself with no further explanation.

However, Judge Saylor disagreed, and held that the proper context was the entire “heated internet debate.”  In that context, Judge Saylor wrote, it was obvious that the Tweet was an opinion, and therefore the case should be dismissed.

Fair enough, but exactly how did the Court defined the scope of this “heated internet debate”? Neither the allegations nor the parties’ briefs provide any information about where on the internet this debate was taking place, or how and by whom it was being read.  Was it all on Twitter, or did it take place in part on other social media or in some obscure equine discussion forum? In describing the appropriate context in this case, the Court referred vaguely and without citation to a “great debate on Internet sites,” while citing only the single Tweet at issue and one article in the Worcester Telegram.

So what is the proper context when determining whether internet speech is an assertion of fact or an opinion? In Greenbelt, the Supreme Court assumed for purposes of its legal analysis that the readers of the term “blackmail” had also read the rest of the newspaper, so the proper context included multiple explanatory articles on the same topic. Here, Judge Saylor appears to assume that anyone who saw this single Tweet would also somehow know about the rest of the debate, wherever online it was occurring. In other words, the proper context for determining whether an online statement is protected opinion could be as wide as the entire internet, or at least anywhere on the internet where the same topic is being discussed.

Seems pretty broad. Perhaps “Twibel” is special after all.

4 thoughts on “New “Twibel” Defamation Opinion Suggests Online Speech May Be Special After All

  1. Speaking of horses, I think you should get off your own high one just because the Courtney Love case dealt with a celebrity and you’re dismissive of the media. The Love twibel case(s) have dealt with the same issues as opinion vs. fact in the social media context, and there were rulings on such, and the are now going on appeal. Maybe you should look in the mirror because I’m betting good dollar that you haven’t read any of the rulings in the Courtney Love matter. Furthermore, the Love matter was arguably more important because the involvement of a limited-purpose public figure on the plaintiff’s side, which raised the issue of how courts interpret malice and intent on platforms where technology can advance beyond someone’s understanding.

    • Jason, thanks for your comment, with which I respectfully disagree. Here is a link to the Court’s ruling, which I did read:

      You are correct that an argument regarding opinion did come up in the case, but in a very different way. Love’s argument was not that there was other information on the internet that provided additional context to her tweet so that it had to be seen as an opinion instead of an assertion of fact. Rather, her argument was simply that “hyperbole and exaggeration” are so “common . . . in the Internet context” that virtually anything on the internet should not be taken seriously. In other words, she was arguing that internet speech is somehow inherently different, with which I and the Court disagreed. As you can see, Love attempted to cite precedent; however, these cases involved not the internet generally but very specific virtual fora where opinion is solicited and expected. There is nothing “landmark” about any of this, because the same principles apply in the non-virtual world. The example I cite in the article – a public zoning meeting – is an example of a non-virtual forum where pure opinion may be solicited and therefore expected. And even if the court had agreed with Love on this point, it would have been relying on the multiple prior internet cases cited by her attorneys, so it would not have been setting a “major precedent.” Superior Court pretrial rulings and jury verdicts rarely set precedent anyway, major or minor.

      Moreover, my reading of the appeals court docket indicates that the appeal in the matter has been dismissed. Even if it were not dismissed, it would have been the plaintiff’s appeal, so it’s not clear that the particular issue described above would have been addressed by the appellate court.

      Finally, the plaintiff’s limited public figure status (which was not the subject of my post) was not an issue in the case. As you can see from the ruling, the plaintiff did not dispute this status. Furthermore, the court did not indicate, and I do not see how it would be the case, that the public/private figure distinction would or should be legally distinct just because online speech is involved.

  2. I am glad I get to live in a county where people are allowed to speak freely. After all, “A threat to justice anywhere is a threat to justice everywhere”. I didn’t want your stinking $250,000 in the first place. Perhaps you could invest in horse genetics and stop all the excess breeding??? Best, Mara

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