The United States Court of Appeals for the Sixth Circuit has ruled that a tweet posted by Hollywood actor James Woods contained sufficient ambiguity to avoid defamation liability to a plaintiff who claimed that Woods wrongly portrayed her as giving a Nazi salute at a Donald Trump 2016 presidential rally. The court held that the inclusion of a question mark could deem the tweet to be posing a question rather than expressing a statement of fact.
Portia Boulger, who supported Democratic presidential candidate Bernie Sanders in the 2016 election season, sued Woods for defamation after the actor tweeted a photo of Boulger alongside another photo of a woman making a Nazi salute at a Trump rally. Woods’ tweet implied that Boulger may have been a plant at the rally by tweeting “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” It was later confirmed that the woman giving the salute was not Boulger, but another person. Woods deleted the tweet with an apology to Boulger. Boulger sued Woods for defamation, which an Ohio federal district court dismissed at the pleadings stage. Boulger appealed to the Sixth Circuit.
The Sixth Circuit analyzed the tweet under Ohio law’s “four-prong, totality-of-the-circumstances test” to determine whether Woods published a false statement of fact, and addressed “the issue of whether questions can (or cannot) be defamatory.” The four factors are: (1) the specific language used, (2) whether the statement is verifiable, (3) the general context of the statement and (4) the broader context in which the statement appeared.
Regarding the first factor, the appellate court found that some readers of the tweet likely viewed it as an insinuation that Boulger was the women in the photo giving the salute, but it seems equally plausible that the tweet was posing a question such that its content had a precise meaning. Analyzing the second factor, the court held that the tweet did not present an obvious example of a question that could be factually verified, which requires reviewing its context under the third and fourth factors. Woods is a tweeter of politically charged content with sarcasm, exaggeration and hyperbole—characteristics more likely to be seen in an opinion, rather than a statement of fact. Woods’ tweet with Boulger’s photo is reasonably susceptible to both a defamatory meaning—that Woods was asserting she was the woman giving the salute, and an innocent meaning—that Woods was merely asking his readers a question. Because the tweet could reasonably be read to have an innocent meaning, it is not actionable as a matter of law.
A concurring opinion, agreeing with the result, stated that application of the four-part test is awkward in this social media context. The analysis simply requires asking whether a reasonable reader would interpret the tweet as a genuine question. Regarding Woods’ tweet, the inclusion of the question mark assumes that the writer is asking a question, such that a reasonable reader would not interpret it as an implied statement of fact.