Since the story broke in the New York Daily News on Tuesday, there has been a deluge of articles and posts (for example here, here, here, and here) on supermodel Liskula Cohen and her quest for a court order requiring Google/Blogger.com to reveal the identity of the anonymous publisher of the Skanks in NYC blog. Beyond its gossipy exterior, the case raises the interesting and important question of what kinds of statements can support a defamation claim.
As a general matter, defamation requires a false statement of fact, and the First Amendment protects statements of "pure opinion." The constitutional protection for statements of opinion shields the expression of subjective beliefs, ideas, and criticisms even when doing so is hurtful or offensive to others. It also protects one's ability to use hyperbole and colorful or extreme language when it is clear these are rhetorical ploys rather than assertions of fact. Not all statements of opinion are constitutionally protected, however. Statements of opinion that imply the existence of undisclosed facts can be defamatory if those unstated facts turn out to be false. For more on all these points, see our legal guide section on Opinion and Fair Comment Privileges.
To determine whether a statement is a "pure opinion" or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context. In New York state, where Liskula Cohen's case will be heard, courts consider three factors in deciding whether a statement is a fact or opinion:
- whether the specific language in issue has a precise meaning which is readily understood;
- whether the statements are capable of being proven true or false; and
- whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to "signal . . . to the readers or listeners that what is being read or heard is likely to be opinion, not fact."
The statements at issue in Cohen's case defy easy characterization as fact or opinion. In her court filings, Cohen alleges that Skanks in NYC calls her (predictably enough given the name) a "skank" and "skanky," including a statement describing her as a "psychotic, lying, whoring . . . skank." She also claims that the blog describes her as a "ho," or, more precisely, that it characterizes her actions as "acting like [a] ho." Beyond this, Cohen complains about the blogger posting photos showing her (or falsely claiming to depict her) in some mildly provocative stances with a man, and about a caption to one photo that, according to her, "implies that Cohen is a promiscuous person with a propensity for performing oral sex."
On first glance, the allegedly false statements look like pure opinion. For one thing, the word "skank" and the phrase "acting like [a] ho" seem like subjective characterizations that lack any precise meaning that could be proven true or false (see factors 1 and 2 above). As others have noted (here, here), one California court has determined that calling someone a "big skank" was opinion because the phrase was "too vague to be capable of being proven true or false" and had "no generally accepted meaning." Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 799-800 (Cal. Ct. App. 2002).
But California cases aren't binding on New York courts, and Cohen's lawyer tooks steps to counteract the persuasive value of Seelig by informing the court that "skank" and "ho" have dictionary definitions (here, here). And, the Seelig case may not be that convincing simply because, as Ben Sheffner of Copyrights and Campaigns argues, "most people know what the word actually means." The same might be said for "ho," though perhaps the addition of "acting like [a]" makes the meaning of the phrase indeterminate. Finally, other statements on the blog like "psychotic, lying, whoring" don't suffer from the same potential ambiguity.
Even assuming the language used has a precise enough meaning, the anonymous blogger could argue that, given the tone and context of the statements, no reasonable reader would believe that he/she meant to convey factual information about Cohen (see factor 3 above). Rather, the argument goes, the blogger used rhetorical hyperbole and extreme language to express subjective disapproval of Cohen's lifestyle, not to suggest that Cohen was a prostitute or a sexually promiscuous, insane, dishonest, or hygienically challenged individual. The medium, the argument continues, doesn't look like one designed to convey factual information -- it's an anonymous blog after all, not the front page of the New York Times. The entries are written in a sloppy, highly informal style, and the whole thing has the look and feel of a crazy rant rather than a sober dissemination of information.
Fair enough, but Cohen might argue back that the tone is not particularly colorful or hyperbolic, just extremely derogatory. Moreover, she could say that the entire blog has a single-minded focus on her persona and lifestyle, complete with personal photos, suggesting nothing if not an intent to convey factual information about her. What else could be the point of the blog? And, she might add, even though an anonymous blog may not seem particularly reliable (this one especially), the question is whether the speaker is conveying factual information, not whether the information strikes the reader as plausibly reliable.
I'm sure there are other arguments Cohen's lawyer Steven Wagner could put forward, including that some of the statements on the blog, even if opinions, imply the existence of false underlying facts, such as acts of sexual promiscuity. My point is that the line between fact and opinion here is blurry, perhaps more blurry than it seems at first.
Whatever the outcome of the fact-opinion inquiry, it's likely to play a decisive role in whether the court orders Google to turn over the anonymous blogger's identity. Although courts in various jurisdictions have disagreed over what standard to apply before ordering the "unmasking" of an anonymous Internet speaker, nearly all agree that a plaintiff must state a legally valid cause of action. See Legal Protections for Anonymous Speech in our legal guide for details.
If the court finds that the statements on the Skanks in NYC blog do not assert or imply any facts, then Cohen's claim will fail as a matter of law, and the court won't order disclosure. See, e.g., In re Greenbaum v. Google, Inc., No. 102063/07 (N.Y. Sup. Ct. Oct. 23, 2007) (refusing to order disclosure of anonymous blogger "Orthomom" because allegedly defamatory statements were non-actionable opinion).
On the other hand, if the statements themselves are actionable, then it shouldn't be too difficult for Cohen to bring forward evidence to support her claim, even at this early stage in the lawsuit. (The growing trend is for courts to require a evidentiary as well as legal sufficiency before ordering disclosure.) She has already submitted an affidavit asserting the falsity of the statements and noting that one of her existing clients has expressed concern about it (which could help with damages, if necessary). Whether the court would require evidence of actual malice is another, more technical question, which I'll leave for another day.
We'll be monitoring case developments in our database entry, Cohen v. Google (Blogger).