Online Civility Part Two
I blogged yesterday about online civility. And then today I saw a law review article that makes a proposal that would promote and protect incivility, at least on Twitter. The article, published in the Berkeley Journal of Entertainment and Sports Law, and titled Twitter: A “Caveat Emptor” Exception to Libel Law? argues that the nature of Twitter is such that “the overall context of Twitter should often negate the expectations of reasonable readers that they are absorbing statements of objective, provable fact, … Twitter should be understood to represent a ‘buyer beware’ marketplace of expression, where followers of Twitterers should generally beware of the ‘truth’ in tweets.” Interesting. But the problem with this argument is that a libel case isn’t a buyer beware situation. “Buyer beware” means that the buyer has to protect himself by performing an inspection or getting a warranty or he can’t seek a legal remedy if the product he bought turns out to be a lemon. But that logic doesn’t apply to the third party who is the subject of the tweet. He can’t do anything to protect himself from the content of the post.
And besides that problem, I don’t foresee the Supreme Court adopting this approach. The Supreme Court’s leading case on determining whether a statement is a declaration of fact (which can be the basis of a libel claim) versus a statement of opinion (which cannot be) is Milkovich v. Lorain Journal. In that case, Milkovich was a high school wrestling coach. His team was involved in an altercation at a match with another high school’s team. Both he and School Superintendent Scott testified at an investigatory hearing before the Ohio High School Athletic Association (OHSAA), which placed the team on probation. They testified again during a suit by several parents, in which a county court overturned OHSAA’s ruling. The day after the court’s decision, the Lorain Journal published a column authored by Ted Diadiun. In his column, Diadiun wrote: “Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.”
The court rejected the argument that Diadiun’s comment was merely opinion. It found that the statement was an assertion of fact. Just because it was contained in an opinion column did not make that particular an opinion. I suspect the court would apply the same analysis to the argument in the law review. Just because tweets are limited to 140 characters and just because there is a lot of opinion expressed on Twitter does not mean that every tweet is immune from a libel claim. Consider this hypothetical tweet: Anyone who attended the meet knows that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth. That’s the gist of the statement from the Milkovich case, but condensed into 137 characters. The law review’s proposal, if adopted, would give someone with a grudge a safe harbor to libel. That doesn’t sound like a great idea. In my opinion.