Eugene Volokh has a typically well-reasoned post on the AutoAdmit lawsuit that I mentioned here last night. The plaintiffs’ complaint includes numerous allegations of sexual threats and clear defamation; I set forth several of the nasty and explicit allegations in last night’s post.
Unlike Ann Althouse, whom I criticized for being too casually dismissive of the plaintiffs’ claims, Volokh shows familiarity with the underlying claims and the applicable legal standards.
Prof. Volokh first concludes, as I did in my own post, that the website operator is almost certainly not liable for the offensive posts.
As for the liability of the posters themselves, he says of the libel claims:
Some of the statements mentioned in the complaint may well be libelous, for instance the ones that accuse plaintiff of having herpes, and of being sexually promiscuous (assuming the statements are false, which I expect they are), or at least false plus highly offensive (which in these circumstances would suffice for a false light claim). They are on matters of private concern and about a private figure, so the defendants would be liable for actual, presumed, and punitive damages.
Defendants’ only defense would be that in context a reasonable reader wouldn’t understand the statement as a factual claim, but just a loose insult that lacks factual content (much as “motherfucker” may be insulting because of the connection to its literal factual meaning, but is almost always used as a pure insult and not a factual claim). That’s a not implausible defense, but far from a sure winner.
Indeed. If you look only at the statements that I excerpted in my post last night, you’ll see just a few of the offensive postings set forth. They include (language warning) a comment stating: “i would like to hate-fuck [Doe I] but since people say she has herpes that might be a bad idea.” I’d hate to be the guy defending that statement in court as a mere insult. Ditto the allegations that a plaintiff committed sexual assault, or had a lesbian affair with a law school admissions dean.
As to the claims for intentional infliction of emotional distress, Prof. Volokh says:
Some of the statements mentioned in the complaint may also be actionable as intentional infliction of emotional distress, because they do seem pretty outrageous when made in a publicly accessible medium. (I doubt the other causes of action are particularly strong, but the distress one might be.) Does the First Amendment preempt such claims?
Some of the statements may be interpreted as threats of rape and the like; if they are interpreted this way, again as opposed to loose hyperbole (see Watts v. U.S. for the leading hyperbole case, though one that arose in a political context), they may be constitutionally unprotected, and there would be no bar to tort liability for them.
The statements, recall, include statements like “i’ll force myself on her, most definitely” and “I think I will sodomize her. Repeatedly.” and “[c]learly she deserves to be raped so that her little fantasy world can be shattered by real life.” Those strike me as credible threats of rape — especially given that at least one of the AutoAdmit posters was following one of the plaintiffs around with a camera.
Most of the statements, though, are just general nastiness; and it’s not clear whether crude, personally insulting speech on matters of private concern about a private figure is constitutionally protected against intentional infliction of emotional distress liability.
Prof. Volokh argues that it should be, on a First Amendment/slippery slope basis. He acknowledges that “this is the sort of case where liability seems especially apt” but worries about the long-term consequences for free speech in other cases.
Prof. Volokh doesn’t appear to be arguing for First Amendment protection for threats, just for crude speech. I agree with him there, but I certainly believe some of the statements listed in the complaint are arguably genuine threats.
Volokh’s last point is that the people who made these statements may get outed by being named in the lawsuit, at considerable cost to their reputations.
The posters’ actions are pretty disgusting and unprofessional; they violate codes of basic decency endorsed by most of society, left, center, and right. If their identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.
Prof. Volokh’s analysis, in my view, is everything that Prof. Althouse’s is not. He shows a familiarity with the underlying allegations and an understanding of their outrageous nature. He shows a knowledge of the applicable legal standards and an understanding that there may well be a legal case against the posters, based on the defamatory and threatening nature of several of the statements. In short, he is not flippantly dismissive of the claims — either their outrageousness, or their legal merit.
It could be that Prof. Althouse’s knowledge of the facts and legal standards is as thorough as Prof. Volokh’s, but it sure didn’t come across that way in her post. Instead, her post communicated the message: there’s nothing here; you just have to put up with statements like this in the online world. As Prof. Volokh’s post makes clear, that’s far from clear. Given the specific facts of this case, the plaintiffs’ claims may well have legal merit.