Top Conservative on Twitter Takes Critic to Court

Shortly after the election last November, a call went out within the conservative blogosphere to use Twitter to organize conservatives online.  Not long thereafter, Michael Patrick Leahy and Rob Neppell started the website Top Conservatives on Twitter and pushed like-minded conservatives to use the Twitter hashtag #TCOT (the # allows twitterers to tag their tweets so others can easily search for the term on Twitter), which quickly caught on with the Tax Day Tea Party crowd. 

When internal disagreements forced Leahy and Neppell to go their separate ways, many liberal-leaning sites crowed "Top Conservatives on Twitter FAIL."  Among the sites that reveled in the conservative breakup was, an anonymous blog created "to chronicle the lead-up to the April 15 conservative hysteria Tax Day Tea Parties and to serve as a central repository for low-brow teabag-related sex jokes," which started referring to the TCOT acronym as "Teabagger Catfight On Twitter" and labeled Leahy a "notorious douchenozzle." (Can you tell this story isn't going to end well?) 

In May, Teablogging turned up the heat with a post entitled "Tea party leader/insane clown also major tax fraud, apparently," in which the post's author claimed, among other things, that Leahy had a number of outstanding tax liens.  As you might expect, twitterers also joined in, calling Leahy -- who had helped organize the Tea Party rallies -- a hypocrite and declaring that he "must be destroyed."

Stung by the deluge of criticism, Leahy filed a lawsuit earlier this week against Stephanie Grasmick, claiming that she is the author behind Teablogging, as well as Twitter user "Duke St. Journal" and 25 anonymous Twitter users, alleging libel, false light invasion of privacy, intentional infliction of emotional distress, and tortious interference with contract. 

The complaint, which Leahy posted on his website (now removed), is quite a piece of work, reading more like a set of conservative talking-points than a legal filing.  For example, Leahy, who clearly has done his homework on Grasmick, writes:

Grasmick is Facebook friends with Shauna Daly, Research Director at the Democratic National Committee and a known bare knuckles political operative known for digging up dirt on political opponents (Exhibit AB). . . .

Liberal Democratic political activists across the country fear the political power that has been evidenced by the success of the Tea Party Movement. As an ambitious Liberal Democrat political activist, Grasmick seeks to curb the political success of the Tea Party Movement. Working either independently, or in cooperation with currently unknown Liberal Democrat political activists of like mind, Grasmick determined to take personal action to limit the success of the Tea Party Movement by applying the well known techniques of Saul Alinsky, outlined in his 1972 book "Rules for Radicals". . . .

Grasmick has an extensive network of Liberal Democratic activists with whom she communicates with in many ways, some through the use of Facebook (she has 283 Facebook Friends, which includes additional operatives such as Joe Trippi), (Exhibit N) and Twitter (she has more than 469 followers). (Exhibit O).

But what about his legal claims you ask?  Leahy, who appears to be handling the case himself, asserts that Grasmick libeled him when she falsely accused him of being

  • a "major tax fraud";
  • a "delusional profiteering creep";
  • an "insane clown"; and
  • a "member of some alien race of Lizard People."

Compl. (First Cause of Action) ¶¶ 1-5.  Leahy also claims that Grasmick (under the name StephanieInCA) and "Duke St. Journal" repeated these false statements on Twitter.

As we've noted with other cases involving hyperbolic language on a blog (see, e.g., our coverage of the "Skanks in NYC" case) complaints like this raise the threshold question of what kinds of statements can support a defamation claim. 

At the outset, it's important to keep in mind that the First Amendment precludes liability for statements of "pure opinion," including the use of hyperbole and colorful or extreme language when it is clear these are rhetorical ploys rather than assertions of fact.  This protection doesn't go away even if the statements are outlandish, hurtful, or offensive to others.    

As a result, defamation requires a false statement of fact. To determine whether a statement is "pure opinion," ask yourself whether it can be proven true or false.  Take, for example, Grasmick's statement that Leahy is a "member of some alien race of Lizard People."  In addition to being so outlandish that no reasonable person would take it seriously, can Grasmick prove Leahy is an alien lizard person (or conversely, can Leahy prove he isn't)?  Unless Gaius Baltar invents an alien lizard detector, we'll never know.  If a statement can't be proven true or false, it cannot be the basis for a defamation claim. For more on all this point, see our legal guide section on Opinion and Fair Comment Privileges.

If there is doubt as to how a statement should be characterized, a court will look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement.  In short, context matters. See Kersey v. Wilson, 2006 WL 3952899, at *4 (Tenn. Ct. App. 2006) (noting that a poem "enjoys considerable latitude" when interpreted for defamation purposes).

While I can't say for certain how a court would view the statements Leahy takes issue with, I think it is highly likely that statements asserting that he is a "delusional profiteering creep," an "insane clown," and a "member of some alien race of Lizard People" would be considered statements of opinion, especially when viewed in the context of a politically charged blog and Twitter account.

The statement that Leahy is a "major tax fraud," however, implicates another aspect of the opinion defense that is a bit more challenging to handicap.   If a statement implies false underlying facts, it could be defamatory.  For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. A reader may well assume you have unstated facts to base your opinion on, and it would be a defamatory statement if the implied facts turn out to be false.

All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect.

Let's see how this might work in the context of Leahy's lawsuit.  The May 13 blog post referenced in Leahy's complaint stated the following:

Well no wonder he doesn’t like taxes very much. According to documents obtained by Teablogging by running a goddamned simple Nexis search on the internets, national Tea Party organizer, Top Conservatives on Twitter cofounder and publisher Michael P. Leahy has, over the past 16 years, amassed nearly $150,000 in state and federal tax liens, small claims court judgments and civil suits. 

* * *

So anyway, megalomaniac? Check. Self-defeating hack? Check. Lizard Person? Definitely check. And now, yes, apparently massive tax fraud? Check and check.

Notice that Grasmick lays out the factual basis for her opinion that Leahy is "apparently a massive tax fraud."  Facts that Leahy appears to concede are true when he states in his complaint that Grasmick "offered no evidence of such allegation other than 4 public tax liens [and] the existence of a tax lien is not evidence of tax fraud."   Compl. (General Allegations) ¶ 1.  Now Leahy is right that a tax lien isn't necessarily evidence of tax fraud (it could be a mere oversight that led to the unpaid taxes), but does that mean that Grasmick's statement is defamatory?  

In Tennessee, where Leahy filed his case, courts have held that "a statement of opinion is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion."  Revis v. McClean, 31 S.W.3d 250, 253 (Tenn. Ct. App. 2000) (citing Restatement (2d) of Torts § 566 (1977)).  Conversely, "where there is no false representation of fact, one may not recover in actions for defamation merely upon the expression of an opinion which is based upon disclosed, nondefamatory facts, no matter how derogatory it may be."  Windsor v. Tennessean, 654 S.W.2d 680, 685 (Tenn. Ct. App. 1983).  Moreover, in Tennessee an opinion based on disclosed facts is protected "even though the opinion may be unjustified and unreasonable." Binkley v. Tennessee Farmers Mut. Ins., 1985 WL 3519, at *4 (Tenn. Ct. App. Nov. 8, 1985). 

Because Grasmick disclosed the factual basis for her opinion, if those underlying facts turn out to be substantially true, her statement that Leahy is a "major tax fraud" is likely to be protected even though it's incorrect.

A couple of other points worth highlighting:

Even if Leahy is able to show that the statements are capable of a defamatory meaning, he will need to show that Grasmick and "Duke St. Journal" were at fault when they published the statements.  "Duke St. Journal" merely retweeted the allegedly defamatory information, so he is immune under section 230 of the Communications Decency Act as a user of an interactive computer service.

As to Grasmick, she did what few bloggers do (although most should), she sought comment from Leahy before publishing the post.  Grasmick wrote at the time:

In an uncharacteristic act of actual journalism, contacted Mr. Leahy prior to the publication of this post. He thanked us for the heads up (and chided us for using dirty words) but didn't offer any further comment. Boo-yah. 

At minimum, Leahy would be a limited-purpose public figure on the subject of tax reform/opposition, so he will need to prove "actual malice" to succeed on his claim.  Grasmick's effort to check the facts with him before publication presents a serious problem for his libel claim.

Leahy also asserts a claim for false light invasion of privacy, although the conduct he complains about is more properly characterized as a claim for publication of private facts: the disclosure of his "residence in Williamson County, Tennessee."  Compl. (Second Cause of Action) ¶ 1.  Regardless of how he captions his claim, because Leahy's home address is publicly listed in the phonebook (a fact he concedes, see Compl. (Second Cause of Action) ¶ 1) it can't be a "private fact," and thus this claim will surely fail.

In addition to monetary damages, Leahy argues that he is "entitled to see the complete records of all Facebook communications and telephonic communications between Grasmick and her 283 Facebook friends, as well as public and private messages sent by Grasmick to those 469 persons she follows on Twitter, in order to determine the identity, if there is such, of any additional defendants who should be named in this complaint."  Compl. ¶ 18.  Can you say improper fishing expedition?

For more on the case, see our database entry, Leahy v. Grasmick

Update: Leahy reported on his blog that "Grasmick has agreed to remove the false and misleading word from the headline of her May 13, 2009 blogpost which caused me to file a libel suit against her on May 18, 2009. I, in response, have withdrawn my complaint against her." Grasmick confirmed the agreement and removed the word "fraud" from her previous blog post.


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