DEFAMATION IN 280 CHARACTERS OR LESS: HOW DEFAMATION CASE LAW SHOULD EVOLVE TO HOLD POLICE ACCOUNTABLE FOR HARMFUL TWEETS

By: Eura Chang, Volume 105 Staff Member

On June 1, 2020, people across the nation took to the streets to protest the murder of George Floyd at the hands of Minneapolis police and police brutality.[1] That same day, the Columbus Police Department (CPD), located in Ohio, posted a photo of a painted bus and a foreboding message to its Twitter account:

This bus was stopped yesterday at Broad St. & 3rd due for [sic] obstruction of traffic. There was a suspicion of supplying riot equipment to rioters. Detectives followed up w/a vehicle search today & found items: bats, rocks, meat cleavers, axes, clubs & other projectiles. Charges are pending.[2]

The tweet exploded, garnering thousands of retweets and comments. [3] A local news station turned the tweet into a headlining story and published it with a photo of the bus’s occupants. [4] Hundreds of miles from Columbus, Ohio, Florida Senator Marco Rubio retweeted CPD’s post, suggesting the existence of “an organized effort to inject violence & anarchy into the protests.” [5]

What failed to go viral, however, was that the bus in the tweet, named “Buttercup” by its owners, had been carrying a troupe of street performers, not a gang of riotous protestors. [6] And the “riot weapons”? Kitchen implements and juggling clubs—materials fitting for an artist who used Buttercup as her primary place of residence.[7] While CPD’s tweet implied that Buttercup constituted a violent threat, in reality, Buttercup’s owner, Reese Digati, received a ticket, which was later dismissed, for “obstructing traffic”.[8] Although Digati committed no crime, threats to “burn down the bus and hang the driver” forced her to stop living in Buttercup for some time.[9] The original tweet remains on CPD’s Twitter page with no official updates regarding Digati’s charge and ultimate innocence.[10]

Digati is not the only victim of hasty conclusions disseminated widely by police-run social media accounts. After gun violence at a protest in 2016, Dallas police tweeted a photo of Mark Hughes with the message “This is one of our suspects. Please help us find him!”[11] Despite obvious evidence that Hughes was not the shooter, the photo made it on national news and Hughes became the target of death threats.[12] In 2018, the Facebook page of a Florida sheriff shared Marlo Sue Johnson’s mugshot and kept it up even after the prosecutor dropped Johnson’s charges.[13] Johnson lost her job because of the post and has been unable to find a new one.[14]

The law must keep police accountable and encourage police to perform sufficient investigation before disseminating conclusory tweets to a large audience. This Post will (1) discuss the public policy implications of allowing police departments to tweet accusations with impunity and (2) argue that in order to keep police accountable, a victim, like Digati, should have the means to pursue damages for reputational harm and defamation.

I. POLICE-RUN TWITTER ACCOUNTS HARM COMMUNITIES BY MEMORIALIZING CRIME AND SPREADING CONCLUSORY ACCUSATIONS

In recent years, police have used platforms, like Twitter, to engage with their communities.[15] Many departments view social media as a useful tool for sharing information about investigations and “enlist” the help of community members.[16] Studies, however, show that these accounts “memorialize” crime rather than successfully solve them.[17] Police department Facebook posts tend to serve as “online news tickers” and can result in an “overblown” fear of crime that causes “individuals to isolate themselves and withdraw from their communities.”[18]

Additionally, the stories of Marisa Digati and Mark Hughes demonstrate how conclusory tweets shared prior to sufficient investigation can have long-lasting impacts on their victims. Unlike traditional communication channels, like wanted posters or news stories, the spread of a viral tweet is much harder to control, even when the content is misinformed or misleading.^[19] These tweets can also have everlasting consequences through Internet searches and continued online harassment.^[20] Reports of deep-seeded racial bias in police departments also cast doubt on a department’s ability to objectively disseminate information based on minimal investigation and on a platform where a fear-inducing message can go viral.[21] The increasing reliance on social media as a news source also means that police departments, instead of neutral journalists, have the ability to narrate the public conversation around crime. [22]

II. VICTIMS SHOULD BE ABLE TO SUE FOR REPUTATIONAL HARM AND DEFAMATION

A. State Courts Should Consider Defamation Laws and Interpret Them in a Way That Better Protects Victims From the Defamatory Effects of a Police Tweet

In Ohio, state law expresses that police have the privilege to publish a “fair and impartial” report regarding a person’s arrest or indictment.[23] However, a plaintiff can overcome this privilege, among other things, by showing “actual malice.”[24] “In a qualified privilege case, ‘actual malice’ is defined as acting with knowledge that the statements are false or with reckless disregard as to their truth or falsity.”[25] The “libeled plaintiff must prove with convincing clarity that the defendant had a high degree of awareness of the probable falsity of the published statements.”[26]

In determining recklessness, and therefore “actual malice,” courts should look to decisions like Partridge v. State.[27] In Partridge, the plaintiff brought a defamation claim against police for displaying a photograph of the plaintiff at a press conference about the sexual exploitation of children even though plaintiff had never been charged or convicted of such a crime.[28] The court used a two-part test requiring proof of (1) language that “reasonably conveys a defamatory inference,” and (2) “that such language affirmatively and contextually suggests that the declarant either intended or endorsed the inference.”[29] The plaintiff fulfilled the first element because the press conference falsely implied that the plaintiff sexually exploited a child by displaying the plaintiff’s photo.[30] For the second part of the test, the courts looked to whether “the plain language of the communication itself suggest[ed] that an inference was intended or endorsed.”[31] Because the test does not focus on the intent of the defendant and because the purpose of posting plaintiff’s photo alongside other sexual predators was “clearly linked with the negative innuendo conveyed by the message as a whole,” the Court found the second element fulfilled and that plaintiff had established defendant acted with malice.[32]

Digati’s situation illustrates how courts or state legislatures could adopt a similar test and level of review in order to protect similar victims. The CPD’s tweet clearly conveyed defamatory inference by insinuating that the bus owners were supplying weapons to rioters during a tense and uncertain time. Additionally, the language of the tweet suggests that CPD wanted to share this negative inference, and warn against similar actions.

B. Federal Level

Digati might also seek relief at the federal level, if federal courts also update their interpretation of the law to more properly protect victims of online defamation. In Paul v. Davis, defendant, the Louisville Police Department, had disseminated photos of the plaintiff on a shoplifting awareness poster to merchants. [33] Plaintiff brought a due process claim under 42 USCA § 1983 alleging the poster deprived him of due process by naming him as a shoplifter when neither his innocence nor guilt had been decided in a court of law.[34] The United States Supreme Court ruled that a plaintiff needed to show the violation of a “specific constitutional guarantee” and that purported reputational harm inflicted by the state was insufficient to trigger due process protections.[35] This high burden, which exists today, severely limits the ability of a victim to hold a state actor accountable for defamatory actions. The Court did not foresee that the advent of the internet would greatly increase the harms of defamation.[36] Defamation law, as illustrated by Davis, does not adequately reflect the extreme changes of our increasingly connected world.[37]

Kelsey Stein, in her article, Dangers of the Digital Stockade proposes an update to Paul v. Davis that would more effectively protect victims from “online stigmatization” and its long-term effects.[38] While the defamatory statements in Paul were only disseminated to 800 merchants and the physical flyers likely disappeared soon after, the CPD Twitter account currently has 52,900 followers and the tweet about Digati remains up.[39] Stein argues that the Supreme Court should “recognize reputational harm as sufficient to trigger due process” due to the “magnified impact of public online postings.”[40] The Court could do this by either overturning Paul or determining that online posts, like tweets, are sufficient proof of an “infringement on a constitutionally recognized liberty.”[41] Such a change would allow victims such as Digati, whose name continues to appear in searches along with the CPD’s tweet, to bring a case against the police department for depriving her of a constitutional right.

In today’s age of social media, defamation case law at the state and national levels need to keep up with the times. With society’s increasing reliance on social media and the ability of misinformation to spread at an alarming and uncontrollable pace, police-run Twitter accounts enable police-motivated narratives to disseminate quickly, sometimes at the expense of an individual’s safety and reputation. While police departments should integrate more stringent interdepartmental social media policies, courts should think more seriously about how defamation case law can be updated in order to protect individuals from shaming and blaming on a national stage with the click of a button.

[1] See Aaron Blake, Police Keep Using Twitter for Misinformation and Rumor-Mongering About Protestors, Wash. Post (June 16, 2020 12:18 PM), https://www.washingtonpost.com/politics/2020/06/16/police-keep-using-twitter-misinformation-rumor-mongering-about-protesters/ [https://perma.cc/JQ6G-Y3DQ].

[2] See Joel Oliphant, False Rumors, Police and Mayoral Tweets Targeted Bus Named Buttercup Amid Protests, Columbus Dispatch (June 16, 2020), https://dispatch.com/story/special/2020/06/16/false-rumors-police-and-mayoral-tweets-targeted-bus-named-buttercup-amid-protests/42142157/ [https://perma.cc/E9KA-WPT7]; Columbus Ohio Police (@ColumbusPolice), Twitter (June 1, 2020 4:26 PM), https://twitter.com/ColumbusPolice/status/1267568211370934272 [https://perma.cc/5YYS-RAFR].

[3] See Oliphant, supra note 2.

[4] See Joel Oliphant, ‘We Were Terrified and Confused’: The Curious Case of the Colorful School Bus, ALIVE (June 12, 2020 1:20 PM), https://www.columbusalive.com/news/20200612/we-were-terrified-and-confused-curious-case-of-colorful-school-bus [https://perma.cc/792K-VANB].

[5] Marco Rubio (@marcorubio), Twitter (June 1, 2020 7:35PM), https://twitter.com/marcorubio/status/1267615757548113920 [https://perma.cc/9RYU-73ZW].

[6] Oliphant, supra note 2.

[7] Id.

[8] See id.

[9] See id.

[10] See Columbus Ohio Police, supra note 2.

[11] See Lisa Gutierrez, How Twitter Went to Bat for Mark Hughes, Misidentified as a Suspect in Dallas Police Shootings, Kansas City Star (July 6, 2016 10:01A AM), https://www.kansascity.com/news/nation-world/national/article88409497.html [https://perma.cc/3YA5-E7FB].

[12] See id.

[13] See Sara DiNatale, This Florida Sheriff Keeps Shaming the Accused on Facebook – Even Before Formal Charges Are Filed, Tampa Bay Times (Feb. 16, 2018), https://www.tampabay.com/florida-sheriff-facebook-shaming-before-formal-charges/ [https://perma.cc/2Q7C-SFGN].

[14] See id.

[15] Kathryn Kinnison Van Namen, Facebook Facts and Twitter Tips—Prosecutors and Social Media: An Analysis of the Implications Associated with the Use of Social Media in the Prosecution Function, 81 Miss. L. J. 549, 553 (2012).

[16] Deborah Davis & Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent: Learning from the Past and Projecting into the Age of Social Media, 46 New Eng. L. Rev. 769, 793 (2012).

[17] Kelsey Stein, Dangers of the Digital Stockade: Modernizing Constitutional Protections for Individuals Subjected to State-Imposed Reputational Harm on Social Media, 87 Geo. Wash. L. Rev. 996, 1013 (2019).

[18] Stein, supra note 19, at 1010.

[19] Edward F. Davis III, Alejandro A. Alves, & David A. Sklansky, Social Media and Police Leadership: Lessons from Boston, at 14, Harv. Kennedy School: New Persps. in Policing (March 2014), https://www.ncjrs.gov/pdffiles1/nij/244760.pdf [https://perma.cc/R8QL-SJD8].

[20] Stein, supra note 19, at 1013.

[21] See Kirsten Weir, Policing in Black & White, Am. Psych. Ass’n (Dec. 2016), https://www.apa.org/monitor/2016/12/cover-policing [https://perma.cc/UQ2R-4YE8].

[22] Stein, supra note 19, at 1010.

[23] Ohio Rev. Code Ann. § 2317.05 (West 2020).

[24] Id.

[25] Jacobs v. Frank, 573 N.E.2d 609, 613 (Ohio 1991).

[26] Id.

[27] Partridge v. State, 173 A.D.3d 86 (N.Y. Sup. Ct. 2019).

[28] Paul v. Davis, 424 U.S. 693, 689–90 (1976).

[29] Id. at 691–92.

[30] Id. at 694.

[31] Id. at 694–95.

[32] Id. at 696–97.

[33] Id. at 695–96.

[34] Id.

[35] Id. at 700–01.

[36] David S. Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law, 45 Harv. Civil Rights-Civil Liberties L. Rev. 261, 262–63 (2010).

[37] Ardia, supra note 39, at 263 (2010).

[38] Id.

[39] Stein, supra note 19, at 1019. See Columbus Ohio Police, supra note 2.

[40] Stein, supra note 19, at 1024.

[41] Stein, supra note 19, at 1024–27.