480 F.Supp.3d 542
S.D.N.Y.2020Background
- Plaintiff Charles Ganske, an Associated Press journalist, alleges that on July 27, 2018 defendant Louise Mensch tweeted into a thread between Ganske and a third party (@Conspirator0), calling one of Ganske’s tweets “xenophobic,” asserting he had “clearly personally spread Russian bots” on his former site (RussiaBlog), and that @Conspirator0’s work had sent Ganske into a “frenzy.”
- Mensch’s July 27 tweets (a 12:17, 12:27 and 12:32 a.m. sequence) were the focus; Mensch included hyperlinks to @Conspirator0’s data about alleged bot activity on RussiaBlog and tagged AP accounts in the posts.
- Ganske complained to AP after the tweets; AP did not initially fault him, but he was terminated on August 10, 2018; he filed suit on July 25, 2019 alleging defamation and tortious interference with his employment.
- Mensch moved to dismiss under Rule 12(b)(6). The court took judicial notice only of Mensch’s three July 27, 2018 tweets as integral to the complaint and denied consideration of other extrinsic tweets.
- The district court held that each challenged statement in the 12:32 a.m. tweet was nonactionable opinion (context of Twitter, hyperbolic language, and disclosure of the factual basis via hyperlink), and that the tortious-interference claim was duplicative of the defamation theory and inadequately pled; both claims were dismissed with leave to amend.
Issues
| Issue | Plaintiff's Argument (Ganske) | Defendant's Argument (Mensch) | Held |
|---|---|---|---|
| Whether the Tweet’s statements are actionable defamatory facts or protected opinion | The tweets alleged false factual assertions (xenophobic, spread Russian bots, frenzy) that injured his reputation | Tweets are expressions of opinion/hyperbole on Twitter and thus nonactionable; factual basis was disclosed via @Conspirator0 link | Court: Statements are nonactionable opinion; context (Twitter), rhetorical nature, and hyperlinked factual source make them protected opinion — defamation claim dismissed |
| Whether the inclusion of an allegation that Ganske “spread Russian bots” stated a provable fact | That phrase accused Ganske of a specific, provably false factual wrongdoing | Mensch showed the opinion rested on @Conspirator0’s data and hyperlinked that source, disclosing the factual basis for her opinion | Court: Although provable in theory, the linked source disclosed the facts underlying the opinion; the statement remained nonactionable opinion |
| Whether tortious-interference claim survives separate from defamation | Interference by tweeting to AP caused his termination and damages | The tort claim merely repackages the reputational injury; no plausible allegation of intent to procure breach | Court: Claim duplicative of defamation and insufficiently pled intent; dismissed |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard governing plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (apply Twombly plausibility at dismissal)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (distinguishing fact from opinion in defamation law)
- Gross v. N.Y. Times Co., 82 N.Y.2d 146 (1993) (tripartite New York test for fact vs. opinion)
- Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997) (context may signal opinion; speaker’s undisclosed facts can make opinion actionable)
- Celle v. Filipino Reporter Enters., 209 F.3d 163 (2d Cir. 2000) (court decides as a matter of law whether words are defamatory)
- Biro v. Conde Nast, 883 F. Supp. 2d 441 (S.D.N.Y. 2012) (online, hyperbolic language treated as opinion)
- Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013) (hyperlink as modern equivalent of attribution/footnote)
- Mirage Entm’t, Inc. v. FEG Entretenimientos S.A., 326 F. Supp. 3d 26 (S.D.N.Y. 2018) (tweet linking to underlying report treated as opinion)
- Finley v. Giacobbe, 79 F.3d 1285 (2d Cir. 1996) (elements of tortious interference with contract)
- Roche Diagnostics GmbH v. Enzo Biochem, Inc., 992 F. Supp. 2d 213 (S.D.N.Y. 2013) (need plausible allegation of intent to procure breach)