I don't disagree with any part of Ken's analysis. I do think the "see the evidence or they see how I connect the dots" statement, if added to the complaint, likely gets past a motion to dismiss and possibly past a motion for summary judgment. Maybe a good lawyer could win either on a "familiar with the speaker" defense, but it would require the defendant to eat a lot of crow about how no one could think her statements are statements of provable fact, and based just on this post I'd speculate she might have trouble with that. Also, if the case gets past the initial motion, it looks like the defendant would be fun to depose, and not so much fun to prepare and defend. There'd be a significant threat that she could get baited into testifying that she said the things she said because they were true as a matter of fact and that her followers believe them because she tells them they are true as a matter of fact.
No, you're right about that. I assume plaintiff's counsel were trying to shore up an inference of negligence / actual malice but walked themselves into a different problem. If the defense picks up on it, maybe the plaintiff could amend in response to the motion to dismiss and clarify that she meant no such facts actually exist even though the statements imply to a reasonable reader that they do.
There is a sizable minority of the population who believe that tarot - astrology - runes - mediums - are 100% factual, they would not view Ashley's tarot conclusions as an opinion, but as a fact. I would expect that Ashley has stated that her tarot conclusions are factual many, many times (I could be wrong). If Ashley's allegations are viewed as factual by a substantial number of people, and if she has stated that her readings are credible, why wouldn't they be defamatory?
But for "tarot - astrology - runes - mediums" readings/prognostications to be factual, would they have to be replicated exactly by others performing the same "parlor games"?
You are just giving your definition of 'factual'. Some people believe tarot readings are factual, forget for the moment the basis for that belief. Ken says that opinions can be defamatory "if they state or imply the existence of provably false underlying facts". The argument is that the tarot reading states an opinion, not an underlying fact. What I am saying is that to some sizable minority of people Ashley's tarot readings are not opinion, to those people they are facts. Do you get a pass on defamation when you state things that a jurist might find to be opinion and not credible by, for instance, your definition of factual, but that x number of people believe to be factual and true? You can get a slew of experts to state that a tarot reading has no scientific basis, and that it is therefore an opinion. That makes it an opinion for those who accept scientific reasoning, but is irrelevant to the true believers for whom it is a fact. If population subgroup x believes in tarot, and someone is defamed in a tarot reading and that reading is accepted as fact by subgroup x using non-scientific criteria to evaluate it's 'truth', hasn't that person been defamed?
When evaluating defamation the commonly held definitions of words like "fact" and "false" are used, not the definitions used by defendants, plaintiffs, or their respective audiences. Otherwise you could turn any statement into one premised on "provably false underlying facts" by finding one crazy asshole who heard the defendant's statement and thinks facts are "anything the defendant says".
Defamation law is supposed to punish actually damaging lies, not what any lunatic faction considers a damaging lie. While I agree defamation law is insufficient for punishing the damage that can be caused by demagogues riling up their insane followers, I don't think lowering the law's standards for truth to their level is the way to go.
I think that's just the idea here that Richard is arguing. It's not one crazy asshole who's doing the treating-nonsense-as-fact. It's a provably sizable minority of Americans.
Only if we get past this issue. The first question is “is this a provably false statement of fact?” If it is, THEN we get to fault — which is “was it stated negligently, if this is a private figure suing, or with actual malice, if it’s a public figure?” Then, if we get that far, actual malice can be either knowledge of falsity or reckless disregard for the truth.
You help out immensely when the legal jargon and discussions start making my head hurt.
I appreciate the legal info you and Josh offer on your podcasts, especially the humorous asides you two make.
It is obvious that you have genuine affection for one another, but not in the sense of squirrel-importunity, simply as friends working together to help us legal outsiders.
Thank you, Ken. I'm bookmarking this one. People throw "defamation" around way too much and it's great to have something other than Wiki to toss at 'em! :)
So do you see think this analysis applies in a culture/context in which the audience takes magic seriously?
Suppose that both parties are part of a spiritualist/religious community that believes in this kind of magic. Or that both are part of a Christian denomination where "Jesus told me" is considered strong evidence. Does that mean that you could get away with defaming someone in that context by simply claiming that your opinion is based on what god/magic told you?
I guess the free exercise clause might get involved but it seems unfortunate that there is a way of accusing something of vile things in a way you know will be believed by their peers and you can just make it up with no consequences.
Still, I guess I don't see how else it could work out w/o even worse harms so maybe that's how it has to be.
Great, so now I have to worry about a crank tarot reader accusing me of animal cruelty if something foul were to happen to my neighbor's fowl. At least now I have a template of what not to put in my defamation suit against said hypothetical tarot reader.
Yes, I have chased fowl from our yard because they insist on scratching all the grass to smithereens while hunting for food. No, I have never laid a finger on even one feather or claw of them. I even try to herd them away from the road, but they are perhaps only a few leagues below cats when it comes to being herded.
More and worse injuries have probably been done through allegations that were not “provably false statements of fact” than the converse. I suppose some of those may be “incitement to imminent lawless action” — which definition I owe to Ken White, of course — but others just create misery and an environment in which lawless action becomes more likely.
I don’t know what remedies could or should be supplied here, ignoring the First Amendment for the moment. Defamation law probably isn’t the answer, but I feel that there needs to be some remedy that can be called upon when the slander has already begun to work and the victim(s) aren’t popular or powerful enough to summon a competing narrative. But as I said, I don’t know what that remedy might be.
"In determining whether the audience is likely to interpret a statement as one of fact or one of opinion or hyperbole, courts consider a viewpoint of an audience familiar with the speaker, the forum, and the circumstances."
I'm curious where this comes from and how broadly it should be interpreted in the context of social media. Is the expectation that the reader be familiar with the defendant's entire online presence? Just her presence on TikTok? What if the relevant context is really old and has a tiny number of views? What if it's been deleted?
--
PS: Long time listener, first time writer. Your last podcast made the discussion section of my econ dissertation a lot more colorful.
The expectation would be that the reader is familiar with the author's presence at least in the forum being used. In this case, that's how this person acts on TikTok. If the person hasn't developed a strong context, then it won't influence the reader.
@Ken, Is there another avenue in the law besides defamation for the plaintiff to achieve a moral outcome? For example, if the defendant used obvious language to motivate their followers to attack the plaintiff? I assume whatever the defendant said would need to clear the "imminent lawless action" test in this example.
Or maybe the law doesn't help. Could the plaintiff ask the investigators to issue a statement that she is not a subject or target of the investigation?
If you were the plaintiff's lawyer, and you saw little hope for a defamation suit, what would suit would you bring if any?
So... like, as someone who does read tarot, and has done so for years, tarot is not facts. One reading can have MANY interpretations. A tarot reading -- and divination in general -- shares a lot more in common with literary critics and book reviews than not, and has nothing in common with research. Your interpretation is what's being discussed, not the original, which you yourself should not have had much control over in making (otherwise that's not divination).
So from that angle, I think the fact tarot is involved is kind of a red herring. It really is akin to saying you got it from dreams aliens gave you -- and a lot of people believe in such things, too.
I know people aren't going to take me seriously but I really do think the professor's law team might want to look into a Tarot SME. Sillier-seeming things have happened in law.
Edited to add: actually, now that I think about it, how one interprets information found is also part of research. But at some point in research, there should be at least one fact. As a tarot reader, I am the first to say: yeah, tarot doesn't do that.
Witchcraft is well established as an expert scientific field in criminal trials, Ken. You need to trust the science.
https://www.techdirt.com/2022/03/30/cops-are-being-trained-to-use-literal-witchcraft-to-find-dead-bodies/
Much different than "What about if you say God told you after you prayed over it?"
I don't disagree with any part of Ken's analysis. I do think the "see the evidence or they see how I connect the dots" statement, if added to the complaint, likely gets past a motion to dismiss and possibly past a motion for summary judgment. Maybe a good lawyer could win either on a "familiar with the speaker" defense, but it would require the defendant to eat a lot of crow about how no one could think her statements are statements of provable fact, and based just on this post I'd speculate she might have trouble with that. Also, if the case gets past the initial motion, it looks like the defendant would be fun to depose, and not so much fun to prepare and defend. There'd be a significant threat that she could get baited into testifying that she said the things she said because they were true as a matter of fact and that her followers believe them because she tells them they are true as a matter of fact.
I think this is right. I do think the "she has no facts" part of the complaint is a tactical error.
No, you're right about that. I assume plaintiff's counsel were trying to shore up an inference of negligence / actual malice but walked themselves into a different problem. If the defense picks up on it, maybe the plaintiff could amend in response to the motion to dismiss and clarify that she meant no such facts actually exist even though the statements imply to a reasonable reader that they do.
Those poor squirrels....
All I have to say is that squirrel importunity is not a crime in Australia.
There is a sizable minority of the population who believe that tarot - astrology - runes - mediums - are 100% factual, they would not view Ashley's tarot conclusions as an opinion, but as a fact. I would expect that Ashley has stated that her tarot conclusions are factual many, many times (I could be wrong). If Ashley's allegations are viewed as factual by a substantial number of people, and if she has stated that her readings are credible, why wouldn't they be defamatory?
Interesting conjecture, Richard.
But for "tarot - astrology - runes - mediums" readings/prognostications to be factual, would they have to be replicated exactly by others performing the same "parlor games"?
You are just giving your definition of 'factual'. Some people believe tarot readings are factual, forget for the moment the basis for that belief. Ken says that opinions can be defamatory "if they state or imply the existence of provably false underlying facts". The argument is that the tarot reading states an opinion, not an underlying fact. What I am saying is that to some sizable minority of people Ashley's tarot readings are not opinion, to those people they are facts. Do you get a pass on defamation when you state things that a jurist might find to be opinion and not credible by, for instance, your definition of factual, but that x number of people believe to be factual and true? You can get a slew of experts to state that a tarot reading has no scientific basis, and that it is therefore an opinion. That makes it an opinion for those who accept scientific reasoning, but is irrelevant to the true believers for whom it is a fact. If population subgroup x believes in tarot, and someone is defamed in a tarot reading and that reading is accepted as fact by subgroup x using non-scientific criteria to evaluate it's 'truth', hasn't that person been defamed?
When evaluating defamation the commonly held definitions of words like "fact" and "false" are used, not the definitions used by defendants, plaintiffs, or their respective audiences. Otherwise you could turn any statement into one premised on "provably false underlying facts" by finding one crazy asshole who heard the defendant's statement and thinks facts are "anything the defendant says".
Defamation law is supposed to punish actually damaging lies, not what any lunatic faction considers a damaging lie. While I agree defamation law is insufficient for punishing the damage that can be caused by demagogues riling up their insane followers, I don't think lowering the law's standards for truth to their level is the way to go.
I think that's just the idea here that Richard is arguing. It's not one crazy asshole who's doing the treating-nonsense-as-fact. It's a provably sizable minority of Americans.
Ken, could "reckless disregard for the truth" figure in here somehow?
Only if we get past this issue. The first question is “is this a provably false statement of fact?” If it is, THEN we get to fault — which is “was it stated negligently, if this is a private figure suing, or with actual malice, if it’s a public figure?” Then, if we get that far, actual malice can be either knowledge of falsity or reckless disregard for the truth.
Very helpful. Thank you.
You help out immensely when the legal jargon and discussions start making my head hurt.
I appreciate the legal info you and Josh offer on your podcasts, especially the humorous asides you two make.
It is obvious that you have genuine affection for one another, but not in the sense of squirrel-importunity, simply as friends working together to help us legal outsiders.
Thank you, Ken. I'm bookmarking this one. People throw "defamation" around way too much and it's great to have something other than Wiki to toss at 'em! :)
The world just keeps getting crazier. This is insane.
So do you see think this analysis applies in a culture/context in which the audience takes magic seriously?
Suppose that both parties are part of a spiritualist/religious community that believes in this kind of magic. Or that both are part of a Christian denomination where "Jesus told me" is considered strong evidence. Does that mean that you could get away with defaming someone in that context by simply claiming that your opinion is based on what god/magic told you?
I guess the free exercise clause might get involved but it seems unfortunate that there is a way of accusing something of vile things in a way you know will be believed by their peers and you can just make it up with no consequences.
Still, I guess I don't see how else it could work out w/o even worse harms so maybe that's how it has to be.
Tho I guess lying about the basis for your opinions would make it defamatory it's just super difficult to prove.
Great, so now I have to worry about a crank tarot reader accusing me of animal cruelty if something foul were to happen to my neighbor's fowl. At least now I have a template of what not to put in my defamation suit against said hypothetical tarot reader.
Yes, I have chased fowl from our yard because they insist on scratching all the grass to smithereens while hunting for food. No, I have never laid a finger on even one feather or claw of them. I even try to herd them away from the road, but they are perhaps only a few leagues below cats when it comes to being herded.
More and worse injuries have probably been done through allegations that were not “provably false statements of fact” than the converse. I suppose some of those may be “incitement to imminent lawless action” — which definition I owe to Ken White, of course — but others just create misery and an environment in which lawless action becomes more likely.
I don’t know what remedies could or should be supplied here, ignoring the First Amendment for the moment. Defamation law probably isn’t the answer, but I feel that there needs to be some remedy that can be called upon when the slander has already begun to work and the victim(s) aren’t popular or powerful enough to summon a competing narrative. But as I said, I don’t know what that remedy might be.
Can you elaborate more on this:
"In determining whether the audience is likely to interpret a statement as one of fact or one of opinion or hyperbole, courts consider a viewpoint of an audience familiar with the speaker, the forum, and the circumstances."
I'm curious where this comes from and how broadly it should be interpreted in the context of social media. Is the expectation that the reader be familiar with the defendant's entire online presence? Just her presence on TikTok? What if the relevant context is really old and has a tiny number of views? What if it's been deleted?
--
PS: Long time listener, first time writer. Your last podcast made the discussion section of my econ dissertation a lot more colorful.
The expectation would be that the reader is familiar with the author's presence at least in the forum being used. In this case, that's how this person acts on TikTok. If the person hasn't developed a strong context, then it won't influence the reader.
My “I don’t importune squirrels blog is raising lots of questions already answered by the blog”
@Ken, Is there another avenue in the law besides defamation for the plaintiff to achieve a moral outcome? For example, if the defendant used obvious language to motivate their followers to attack the plaintiff? I assume whatever the defendant said would need to clear the "imminent lawless action" test in this example.
Or maybe the law doesn't help. Could the plaintiff ask the investigators to issue a statement that she is not a subject or target of the investigation?
If you were the plaintiff's lawyer, and you saw little hope for a defamation suit, what would suit would you bring if any?
Holy shit. I did divorce for 38 years and I thought those clients had the market on crazy.
So... like, as someone who does read tarot, and has done so for years, tarot is not facts. One reading can have MANY interpretations. A tarot reading -- and divination in general -- shares a lot more in common with literary critics and book reviews than not, and has nothing in common with research. Your interpretation is what's being discussed, not the original, which you yourself should not have had much control over in making (otherwise that's not divination).
So from that angle, I think the fact tarot is involved is kind of a red herring. It really is akin to saying you got it from dreams aliens gave you -- and a lot of people believe in such things, too.
I know people aren't going to take me seriously but I really do think the professor's law team might want to look into a Tarot SME. Sillier-seeming things have happened in law.
Edited to add: actually, now that I think about it, how one interprets information found is also part of research. But at some point in research, there should be at least one fact. As a tarot reader, I am the first to say: yeah, tarot doesn't do that.