Can A Tarot Card Reading Be Defamatory, Part II: The Taroting
A Disturbed Internet Personality Goes On The Offensive
Back in December I wrote about the strange and disturbing case of Rebecca Scofield v. Ashley Guillard, in which a Professor at the University of Idaho sued an “internet personality” for a series of bizarre posts claiming based on a tarot reading that the professor was responsible for a horrific quadruple homicide at the University. The point of that post was to explore some of the ambiguities of defamation law: is an accusation a pure opinion, and therefore protected by the First Amendment, if it is explicitly premised on something fantastical like magic or omens or (as in this case) tarot card readings? Can you defame someone by claiming that God told you they did bad things?
Since then, police have arrested and charged a suspect — Bryan Kohberger — for the murders. There remains absolutely no evidence of any terrestrial sort that Professor Scofield had any connection whatsoever to the murders, nor that any of Tik-Toker Guillard’s other wild allegations about her are true.
But the case remains disturbing, and continues to illuminate the limitations of our civil justice system.
Guillard Defaults
Guillard did not timely answer Professor Scofield’s complaint. Professor Scofield’s lawyers sought, and obtained, an entry of default against her. In most jurisdictions, getting a default judgment against a defendant who doesn't answer the complaint is a two-part process. In the first part the plaintiff asks the clerk of the court to “enter default” — to note that the defendant hasn’t answered and cut off their ability to answer late without court permission. In the second step, the plaintiff asks the court to enter a judgment — an official decision in the case — and presents evidence supporting the damages they seek.
Professor Scofield got her entry of default. But Guillard, representing herself, very quickly filed a motion seeking relief from default, asserting that she was late because of personal responsibilities and from the stress of negative publicity arising from the lawsuit.
Here’s where the cracks in the system start to appear. Every indication from her behavior — her campaign of bizarre tarot-based accusations against Professor Scofield and her demeanor — suggest she’s mentally ill. Moreover her motion for relief suggests that she has many personal and family problems and limited resources. The point isn’t that we should feel sympathetic for someone who makes outrageous and baseless accusations of murder because of their personal circumstances. The point is that the system — which nominally adjudicates cases based on their merit — expects mentally ill, impoverished, and limited people to offer elaborate and legally significant responses to legal process despite being unable to afford a lawyer and perhaps lack the capacity to even find or communicate with one. This isn’t particularly viscerally disturbing here, where our sympathies lie overwhelmingly with an innocent woman baselessly accused of a horrible crime by a demented social influencer. But that’s not what many cases are like. What happens if the defendant is speaking or writing about a political or social issue and the plaintiff has money and doesn’t like being criticized?
But the cracks in the system also harm Professor Scofield. It’s not her fault that Ashley Guillard is disturbed, or poor, or too scattered to respond timely. Yet because federal courts tend to bend over backwards to give pro se litigants a break, I think there’s a significant chance that the court will lift the entry of default and future defaults, late filings, and failures to follow the rules. Professor Scofield’s best argument against this is her point that Guillard had plenty of time to post multiple TikToks ranting about the case, so had plenty of time to file a pro se answer.
On the one hand, deference to pro se litigants is an appropriate gesture for a system nominally about the discovery of truth in the face of litigants who can’t afford an attorney and can’t navigate the incredibly complex rules by themselves. On the other hand, it sucks for Professor Scofield, doesn’t it? Federal courts bending over backwards for pro se litigants tend to make litigation more expensive, time-consuming, and frustrating for their opponents, even when those opponents are clearly in the right. Professor Scofield will have a harder time getting justice — well, “justice” — because Guillard is pro se through no fault of Professor Scofield.
Guillard Counterclaims
But Guillard isn’t satisfied just trying to lift her default to defend the case. She’s going on the offensive. She’s filed a proposed (proposed because, with the entry of default, she doesn’t have a right to file it yet) answer with counterclaims against Professor Scofield and her lawyers:
Guillard’s counterclaims are for defamation based on the lawsuit, press releases, and statements to the media, for “fraud” and “frivolous claim” for filing the lawsuit, and for harassment and intentional infliction of emotional distress for filing and publicizing the lawsuit. Guillard complains that Professor Scofield and her lawyers falsely stated, through the suit and press releases, that Guillard knew the allegations were false, that she had no basis to make them, that she made them for self-promotion, that her accusations impeded law enforcement, and that her accusations increased the trauma of the victims’ families. Guillard claims this “incited an online riot” against her with innumerable stories and comments berating her and calling her crazy.
These claims are . . . well, problematical. Filing the lawsuit itself can’t be defamation or harassment. Idaho, like most jurisdictions, has a litigation privilege. “[D]efamatory matter published in the due course of a judicial proceeding, having some reasonable relation to the cause, is absolutely privileged and will not support a civil action for defamation . . . .” Richeson v. Kessler, 73 Idaho 548, 551–52, 255 P.2d 707, 709 (1953). The privilege applies even if the defamatory statements were “made maliciously and with knowledge of its falsity.” Id. at 552, 255 P.2d at 709. Guillard’s claims against Professor Scofield and her lawyers are a mish-mash of complaints about Professor Scofield filing the case, the content of the case, and statements to the media. The former two are absolutely privileged; the latter is not. Guillard’s claims are also directed at a mix of statements of opinion, statements characterizing the litigation, and statements of fact, many of which are probably protected speech. (Guillard’s claims are also premised on the idea that Professor Scofield wrongly sued in Idaho where venue is wrong; given that’s where the events discussed happened and Professor Scofield lives and most of the harm happened, that’s pretty clearly wrong.) This is going to be a huge mess to litigate if the Court lifts the default and allows Guillard to litigate.
Professor Scofield’s Damages Claims
Now that she’s obtained entry of default, Professor Scofield has moved for a default judgment. This requires her to show that default is appropriate (that is, there’s no excuse for the default which would lead the Court might give Guillard another chance).
Here’s the relevant standard that Professor Scofield quotes:
“The district court’s decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). “In evaluating the propriety of default judgment, the court is guided by seven non-exclusive factors: (1) [T]he possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.’” BlackMountain Inv. Holdings, LLC v. NewChanvre Inc., No. 2:20-CV-00495-SM, 2021WL 5331758, at *1 (D. Idaho Apr. 12, 2021) (brackets in original) (quoting Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986)).
That’s a bit of an uphill battle for a pro se who was only a bit late filing an answer; again, Professor Scofield’s best arguments are Guillard’s utter loathsomeness and her TikTok activity when she was allegedly too busy to reply.
But what about damages? After deciding to enter a default judgment, a court can do nearly anything it wants — decide based on declarations and exhibits, hold a hearing, or hold a mini-trial that’s one-sided. Here, Professor Scofield is asking for $1,863,304, which is made up of (1) ten years of her salary because of the harm to her career and (2) a million dollars for pain and suffering. She submits a declaration:
Here’s the thing. I absolutely believe that Professor Scofield suffered extreme emotional distress, both from Guillard’s bizarre allegations and from the resulting abuse and hate mail from Guillard’s demented fans and various internet nutjobs. That’s worth something. But her claim this has harmed her career prospects and ability to work and publish with others seem very conclusory, even sketchy. Did anyone in academia really believe a TikTok influencer who opines based on tarot readings? I doubt it.
So the damages — if the court enters a default judgment — are likely to be a purely subjective, emotional reaction by the judge. They would be from a jury, too. But here again are the limits of the system. Guillard is likely judgment-proof. She’s not likely to earn a lot in the future. She probably has no significant assets, let alone $1.8 million. I suppose the piece of paper makes Professor Scofield seem somewhat relieved, and perhaps she can wave it about to show just how much she was wronged. But does it really help her? Is she going to feel better afterwards? Would Guillard feel chastened? Does an uncollectable judgment deter other online nutcases?
I often tell clients that the system is good at moving money around but not much else. That’s not even quire right — the system is incredibly inefficient at moving money around, unless it’s too lawyers. But it’s what we have.
How would a healthy system of justice deal with a pauper lunatic with a large online reach making horrible false claims about someone? What would that look like in an ideal system?
Don’t ask me; I’m just a dumb litigator.
In opposing the motion to vacate the default, the most important part of the opposition will be working in a line about “how can a purported expert tarot card reader not know how to read a summons? Reading and dealing with summons are the sine qua non of being a tarot card reader.”
Enjoyed this. Miss reading you on twitter!