Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D. F. PACE, ESQUIRE, CIVIL ACTION Plaintiff,
v. EMILY BAKER-WHITE, PLAINVIEW NO. 19-4827 PROJECT, AND INJUSTICE WATCH ,
Defendants.
OPINION
In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects—often black men—“should be dead” or “should have more lumps on his head.” In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam “a cult, not a religion” and referred to Muslims as “savages” and “goat-humpers.” And, in still others, officers appeared to joke about beating and raping women. This discovery inspired the creation of the Plain View Project (“the PVP”), a research project that has identified thousands of Facebook posts and comments by current and former police officers. [1] Defendants published these posts and comments, including one by Plaintiff D.F. Pace, on the PVP website.
Pace, an attorney and inspector within the Philadelphia Police Department (“the PPD”), has sued Injustice Watch, an investigative journalism non-profit which runs the PVP, and Emily *2 Baker-White, its former employee for defamation-by-implication and for putting him in a false light. [2] Plaintiff’s published comment—“Insightful point” —is not the problem here. Plaintiff’s contention broadly is that, when viewed in the context of the PVP’s prefatory statements regarding their criteria for inclusion on the website, Defendants’ publication of his name and comment implied that he is an officer who endorses violence, racism, and bigotry and who undermines public trust in the police by acting on those biases. Defendants now move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, their motion will be granted.
I. FACTS [3] The PVP is a website run by Defendant Injustice Watch which compiled comments posted publicly by police officers on their personal Facebook pages. As set forth above, the “About” tab of the site explains how the PVP came about. [4] Having described the posts and comments published on the website, verbiage on the “About” tab continues: “We believe that these statements could erode civilian trust and confidence in police, and we hope police departments will investigate and address them immediately.”
The methodology used to compile the posts is also described in detail on the PVP website. In the fall of 2017, Defendants obtained published rosters of police officers employed *3 by eight jurisdictions across the United States. They then searched Facebook for the officers’ names and made a list of Facebook pages or profiles that appeared to belong to them. Next, they searched within each profile for verification that the user was in fact the officer named on the rosters and to confirm that the profile was maintained by an identified police officer. Some users reported specific police departments as their employers; others posted pictures of themselves in uniform. Some discussed making arrests or performing other police duties. When a PVP researcher obtained verification and confirmation for a profile, the researcher captured the screen with the verifying information and added it to the PVP’s files.
Having compiled a list of more than 3,500 verified accounts, Defendants then reviewed each public post or comment to assess whether they “could undermine public trust and confidence in police.” Ultimately, they included 5,000 posts and comments which they believed “meet this criterion.” Screenshots of each of these posts and comments were placed on the PVP website, the homepage of which states:
We present these posts and comments because we believe that they could undermine public trust and confidence in our police. In our view, people who are subject to decisions made by law enforcement may fairly question whether these online statements about race, religion, ethnicity and the acceptability of violent policing— among other topics—inform officers’ on-the-job behaviors and choices.
To be clear, our concern is not whether these posts and comments are protected by the First Amendment. Rather, we believe that because fairness, equal treatment, and integrity are essential to the legitimacy of policing, these posts and comments should be part of a national dialogue about police.
Visitors to the site can find particular posts and comments through a searchable database organized by officer name, rank, badge number, and jurisdiction. But, before conducting a search, they are presented with a disclaimer to which they must click “I Understand,” or else they cannot proceed. The disclaimer, which is prominently displayed—centered in the middle of and blocking a significant portion of the viewer’s screen—contains the following language:
The Facebook posts and comments in this database concern a variety of topics and express a variety of viewpoints, many of them controversial. These posts were selected because the viewpoints expressed could be relevant to important public issues, such as police practices, public safety, and the fair administration of the law. The posts and comments are open to various interpretations. We do not know what a poster meant when he or she typed them; we only know that when we saw them, they concerned us. We have shared these posts because we believe they should start a conversation, not because we believe they should end one.
. . .
Inclusion of a particular post or comment in this database is not intended to suggest that the particular poster or commenter shares any particular belief or viewpoint with any other poster or commenters in the database. . . .
The disclaimer also explains that the names and faces of non-officers were redacted from the posts as well as the names and faces of officers in comment threads “where their comments could not reasonably affect public trust in policing.” Once a visitor has clicked on the “I Understand” link, they are free to search the database and, at least if the search is made on the same computer, the disclaimer does not come up again.
Defendants included in the database Plaintiff’s comment posted on Facebook in response to another police officer’s post. More specifically, on March 16, 2016, Philadelphia police officer Anthony Pfettscher created a Facebook post discussing the arrest of American Otto Warmbier in North Korea, an international news story at the time. [5] Pfettscher wrote: “I’m cracking up at that America college student that [ sic ] went to North Korea and tried to steal a poster. He is crying and pleading like a little baby girl because he was just sentenced to 15 years hard labor. Although my heart breaks for his family, it’s an eye opener to how spoiled and coddled our youth of today are here in this weak PC country. Yet they act like animals and burn and step on our Flag that [ sic ] so many of our children died for defending our rights and our country. #SeeYouIn15Years #WakeUpAmerica #AskWhatYouCanDoForYOURcountry.” The *5 PVP website includes six comments to the post, including Plaintiff’s, which reads, “Insightful point.” [6] Three of the names of the commenters were redacted, three were not. Plaintiff’s name was one of the ones that was not.
Plaintiff claims that the inclusion of his comment on the PVP website defamed him and put him in a false light. At oral argument on this motion, upon being asked to specify what exact statements formed the premise of his lawsuit, Plaintiff stated that it was the inclusion of his words “Insightful point” in the context of the PVP’s own description of the project on the homepage and the “About” page, as well as statements made in the disclaimer language, that— by implication—defamed and put him in a false light. More specifically, he argues that the website as a whole suggests he belongs “in a set of current and former police officers who endorse violence, racism and bigotry and act[] in manners consistent with these biases in their official capacity”; that he endorses violence, racism and bigotry; that he acts in a manner that undermines public trust in the police; that he is not carrying out his oath of office with integrity; and that he does not treat people equally. [7]
II. LEGAL STANDARDS
On a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6),
factual allegations are scrutinized to determine if the allegations and inferences proposed from
*6
those allegations are plausible.
See Ashcroft v. Iqbal
,
III. ANALYSIS [8]
Defendants argue that Plaintiff’s claims must be dismissed because: they are barred by the Communications Decency Act; the inclusion of Plaintiff’s comment on the PVP website is not capable of defamatory meaning; Plaintiff’s claims are based on Defendants’ opinions and therefore are not actionable as a matter of law; and, Plaintiff has failed to plead actual malice.
A. Communications Decency Act
Defendants assert they are immune from this lawsuit under Section 230 of the
Communications Decency Act (“the CDA” or “the Act”), 47 U.S.C. § 230,
[9]
which bars “lawsuits
seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial
functions—such as deciding whether to publish, withdraw, postpone, or alter content.”
Zeran v.
America Online, Inc.
,
The battle here is over the third element—whether the challenged communications are “information provided by another information content provider.” While it is uncontroverted that Plaintiff wrote the words “Insightful point,” the parties diverge as to how the prefatory language included by Defendants on the PVP website should inform the Section 230 analysis.
Defendants argue that because they were not the author of the words “Insightful point”
(Pace was), and because the publication of someone else’s content even if the publisher selected
and edited the content does not transform such publisher into the creator or developer of the
content,
i.e.
into an information content provider, their decision to publish Pace’s words is
protected by Section 230. And, in support of this proposition, they cite to a long line of cases.
*8
See Obado v. Magedson
,
Plaintiff, to the contrary, maintains that this matter is different from the run-of-the-mill
Section 230 case. Here, he argues, Defendants were both service and content providers in that
they did much more than simply package and publish his words: Rather, they published them
with prefatory content they created which necessarily informed readers’ understanding of his
words. In support of this position, he cites to
Fair Housing Council v. Roommates.com, LLC
, in
which the Ninth Circuit found that “[a] website operator can be both a service provider and a
content provider: If it passively displays content that is created entirely by third parties, then it is
only a service provider with respect to that content. But as to content that it creates itself, or is
responsible, in whole or in part for creating or developing, the website is also a content provider.
Thus, a website may be immune from liability for some of the content it displays to the public
but be subject to liability for other content.”
Distilled to its essence, Plaintiff’s argument is that because Defendants contextualized his comment with content of their own—thus by implication suggesting that he endorsed violence, racism, and bigotry and acted in a manner consistent with those biases in carrying out his duties as a police officer—Defendants cannot find protection (at least on the facts alleged here) under the aegis of Section 230.
Certainly, while courts construe Section 230 broadly,
see Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc.
,
One end of the continuum is populated by cases in which an interactive computer
provider merely hosts or republishes defamatory content. In such cases, the provider is protected
by Section 230.
See Cubby, Inc. v. Compuserve
,
Further along the continuum are those cases which feature defendants curating
information, including selecting what gets posted or excluded. For example, in
Reit v. Yelp! Inc.
,
the court immunized Yelp! against a dentist’s defamation claims, where the site had selectively
removed positive reviews of his practice but left negative ones.
See
Still other cases address positioning or increasing the prominence of allegedly
defamatory content. The court in
Asia Economic Institute v. Xcentric Ventures, LLC
held that
Section 230 immunity applied where the defendant added indexing tags to increase the
prominence of web pages in Google searches.
In some cases, defendants engage in editing or make editorial judgments, which triggers
arguments about what constitutes content editing versus content creation. In
Dimeo
, the
defendant ran a website with message boards on which third parties posted allegedly defamatory
*11
comments about the plaintiff. The defendant “[did] not dispute that he select[ed], remove[d],
and alter[ed] posts on the message boards,” and the plaintiff argued that in doing so, the
defendant developed defamatory content.
Other cases involve defendants who added their own commentary to third-party
statements, but the plaintiffs only alleged the third-party statements were defamatory,
not
the
defendants’ commentary.
See Jones v. Dirty World Entm’t Recordings, LLC
,
At the far end of the continuum, content creators and developers are not entitled to
Section 230 immunity.
See Roommates
,
In
Huon
, the Seventh Circuit found the
Roommates
line had been crossed where Gawker,
an online tabloid operator, allowed its employees to author comments on the Gawker site about a
person who had been acquitted of a criminal sexual assault in order to drive online traffic to its
article about the acquittee.
This case does not fall neatly into any of the aforementioned categories along the continuum. It presents the reverse of the scenarios in Jones and Marifone . There, the plaintiffs sought to hold the defendants liable for reposting allegedly defamatory third-party statements— not for commentary that the defendants made regarding those statements. Here, by contrast, Plaintiff is seeking to hold Defendants liable for what the Defendants’ own words —when read in conjunction with a non-defamatory statement he made on Facebook—imply about him. The third-party statement here is the Plaintiff’s Facebook comment which is not, by itself, defamatory. Give the distinctive nature of this case, the Court returns to the text of the statute to analyze the facts here.
The CDA states: “No provider or user of an interactive computer shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Thus, an information provider may claim Section 230 immunity only with respect to information provided by a content provider other than itself. Accusearch , 570 F.3d at 1196. However, if an entity is “responsible, in whole or in part, for the creation or development of information” that forms the subject matter of the lawsuit, it is itself a content provider and is *14 not protected. 47 U.S.C. § 230(f)(3).
The key terms in Section 230(f)(3) are not defined in the CDA. Thus, they must be
construed “in accordance with [their] ordinary meaning,”
Sebelius v. Cloer,
“A key limitation in Section 230 . . . is that immunity only applies when the information
that forms the basis for the state law claim has been provided by ‘
another
information content
provider.’ . . . Thus, an interactive computer service provider remains liable for its own
speech.”
Universal Comm. Sys., Inc. v. Lycos, Inc.
,
But, this lawsuit does not arise from the selection of Plaintiff’s comments to publish on
the PVP website. It is premised on the inclusion of his and other officer’s comments and posts
on the website as prefaced by statements explaining why those posts and comments were
*15
included. Defendant’s citations in support of their position are, accordingly, inapposite. In
adding the framing narrative, Defendants did much more than merely “packaging and
contextualizing[,]” structuring a website layout, increasing content’s prominence, or selecting
what to publish.
See Green
,
Dictionary definitions of the word “creation” lead to the conclusion that the prefatory commentary was “created” by the Defendants. The word has many meanings, but as relevant here, The Oxford English Dictionary defines it is as “[a]n original production of human intelligence, power, skill or art,” and “[t]he action or process of bringing something into existence from nothing, . . . the fact of being so created.” See Oxford English Dictionary Online , www.oed.com/view/Entry/44061 (last visited Jan. 10, 2020). The Merriam-Webster Dictionary defines it as “something that is created.” See The Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/create (last visited Jan. 10, 2020). Here the words Defendants included on the PVP website were original, having had no existence prior to their being authored by Defendants and, as such, they were created by Defendants.
The fact that Plaintiff’s claims necessarily involve evaluating his statement in the context
of the statements made by Defendants does not undermine this conclusion. Section 230 does not
only cover the creation of content that is created in its entirety by a party, it also covers those
*16
who are responsible “in part” for the creation of content.
Accusearch
,
In focusing on whether Defendants are “responsible” for the framing content on the PVP
website, dictionary definitions once again lead to the conclusion that they are. To be responsible
for a harm is to be “accountable for one’s actions” or to be “the cause or originator of something;
deserving of credit or blame
for
something.”
See Oxford English Dictionary Online
,
www.oed.com/view/Entry/163863 (last visited Jan. 8, 2020). Thus, to be responsible for
offensive content, “one must be more than a neutral conduit.”
Accusearch
,
Here, the PVP website was not a “typical Internet bulletin board[,]” neutrally facilitating
the sharing of harmful content.
See Accusearch
,
B. Defamation Because Defendants are not protected by Section 230 of the CDA, the Court turns to evaluating Plaintiff’s defamation claims. In Pennsylvania, the plaintiff in a defamation action bears the burden of proving: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. 42 Pa. C.S.A. § 8343(a).
In addition, in a suit alleging the defamation of a public official, the First Amendment
requires the plaintiff to establish that in publishing the statement the defendant acted with “actual
malice—that is, with the knowledge that it was false or with reckless disregard of whether it was
*18
false or not.”
New York Times Co. v. Sullivan
,
Defendants argue that the inclusion of Plaintiff’s Facebook comment on the PVP website is not capable of a defamatory meaning, that Plaintiff’s claims are based on Defendants’ opinions and are therefore not actionable as a matter of law, and that Plaintiff has not and cannot plead actual malice. [12]
i. Defamatory Meaning/Opinion
[13]
As an initial matter, the Court must determine whether the communications complained
of are capable of a defamatory meaning.
See U.S. Healthcare, Inc. v. Blue Cross of Greater
Philadelphia
,
“In making this determination, the Court must address two questions: (1) whether the
communication was reasonably capable of conveying the particular meaning ascribed to it by the
plaintiff; and (2) whether that meaning is defamatory in character.”
Fraternal Order
, 1996 WL
426709, at *4. When the implication alleged by the plaintiff is not “reasonably susceptible of a
defamatory meaning,” the plaintiff has failed to state a claim.
See Beverly Enters., Inc. v. Trump
,
Defendants argue that the disclaimer on the PVP website renders the statements of which Plaintiff complains not reasonably capable of conveying the meaning he ascribes to them. Plaintiff seeks to minimize the import of the disclaimer, arguing that it is presented only after the home page piques the visitor’s interest; it may easily be overlooked; its positioning and length make it likely that a viewer would fail to read it; and it is only presented to the viewer the first time he or she enters the site. These arguments are not supported by screenshots of the disclaimer from the website: *21 As the screenshots show, the disclaimer is prominent, robust, and presented in easily readable font. Reading just the first two paragraphs would suffice to explain to a viewer that the content on the PVP website is open to debate. Indeed, the first heading, “Multiple Meanings,” suggests the PVP website content is open to many interpretations. [14]
Turning now to the statements of which Plaintiff complains, for the reasons set forth below, the Court finds that they are inactionable opinions.
“Only statements of fact, not expressions of opinion, can support an action for
defamation.”
Moore v. Cobb-Nettleton
,
Cases in which challenged statements feature equivocal or cautionary language are
routinely dismissed because the statements are non-actionable opinion.
See, e.g.
,
Purcell v.
Ewing
,
The disclaimer includes crucial contextual language, including that the Facebook posts in the database “could be relevant to important public issues” and “are open to various interpretations. We do not know what a poster meant when he or she typed them. . . .” The disclaimer next states:
The posts and comments included in the database comprise portions of a user’s public Facebook activity, and are therefore not intended to present a complete representation of each person’s Facebook presence, or each person’s views on any given subject. Inclusion of a particular post or comment in this database is not intended to suggest that the particular poster or commenter shares any particular belief or viewpoint with any other posts or commenters in the database.
(all emphasis added).
As the language of the disclaimer shows, Defendants were “merely . . . outlining
possibilities.”
See Reardon
,
In sum, the implications that Plaintiff belongs to a set of current and former police officers who endorse violence, racism, and bigotry and act in manners consistent with these biases in their official capacity; that Plaintiff endorses violence, racism, and bigotry; that Plaintiff is not carrying out his oath of office with integrity; that Plaintiff acts in a manner that undermines trust in police; and that he does not treat people equally are not capable of defamatory meaning. They are statements of opinion by Defendants that readers could view Plaintiff in that way—leaving open the possibility that they also could not .
ii. Actual Malice
Plaintiff’s claims fail for the additional reason that he has not sufficiently pled actual malice.
The parties do not dispute that as an inspector with a leadership role within the PPD,
Plaintiff is a public official who must properly plead actual malice for his defamation claim to
progress.
See St. Surin v. Virgin Islands Daily News, Inc.
,
[I]n defamation-by-implication cases, showing known falsity alone is inadequate to establish an intent to defame. In these cases, we may no longer presume with certainty that the defendants knew they were making a defamatory statement because the statement has defamatory and nondefamatory meanings. Therefore, in such cases, plaintiffs must show something that establishes defendants’ intent to communicate the defamatory meaning.
Kendall
,
In the wake of
Iqbal
and
Twombly
, “adequately pleading actual malice is an onerous
task[.]”
Earley v. Gatehouse Media Pennsylvania Holdings, Inc.
,
A review of Plaintiff’s Complaint reveals that he has failed to plead actual malice. The
Complaint makes no reference to key actual malice terms like “knowledge of falsity” and does
not contain any factual allegations that suggest such knowledge. It merely recites that
Defendants acted in a “malicious, intentional and reckless” manner. Although in his brief
Plaintiff asserts that Defendants engaged in “obvious and apparent journalistic misconduct[,]”
such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice[,]” and the Court must disregard them.
See Iqbal
,
Further, at oral argument, Plaintiff pointed to two paragraphs of the Complaint in support
of his actual malice argument—but neither of them do. The first one states: “Plaintiff D F Pace
has
never
made any type of post which denigrates persons on the basis of race, color, religion,
ethnicity, sex or sexual orientation. He detests such attitudes.” (emphasis in original). Plaintiff
used this allegation to suggest that if Defendants had investigated Plaintiff, they would have
found he does not meet the PVP website’s criteria and would not have included his post. But
*26
“[f]ailure to investigate, without more, does not demonstrate actual malice.”
Marcone v.
Penthouse Int’l Magazine
,
The second paragraph of the Complaint to which Plaintiff refers as evidence of actual
malice contains the following quote published in
The Guardian
newspaper on June 25, 2019 and
attributed to Defendant Baker-White: “When I look at those posts I don’t see them as individual
posts at this point. . . . I see them in the aggregate as a body of statements and they seem like
they’re part of a larger narrative that exists in American policing, one that at times encourages
violence or endorses vigilantism and discriminates against minority communities.” But
Defendant Baker-White’s perspective on the Facebook posts, as stated to a newspaper after the
PVP website launched, does not plausibly suggest actual malice in selecting Plaintiff’s comment
for reposting on the site. The statement does not reveal that Defendant Baker-White “entertained
serious doubts as to truth of [the] publication,”
St. Amant
,
Plaintiff has not pled actual malice, and for this additional reason, the Complaint must be dismissed. [16] An appropriate order follows.
January 13, 2020 BY THE COURT:
/s/Wendy Beetlestone, J. _______________________________ WENDY BEETLESTONE, J. *27 Figure 1 (Plaintiff’s comment).
Notes
[1] This description is taken verbatim from the “About” tab of the PVP website.
[2] Although Plaintiff has sued the “ Plain View Project”, according to Defendants it is not a separate legal entity. It is the name of the website run by Defendant Injustice Watch and on which the post and comments were published.
[3] These facts are drawn from the Complaint and, for the purposes of the motion to dismiss, will be taken as true.
See
Kost v. Kozakiewicz
,
[4] The parties agree that the statements of which Plaintiff complains are found on the PVP website and that the
website is relied upon in the Complaint. Accordingly, the relevant pages of the website will be considered in
deciding this motion to dismiss.
See In re Burlington Coat Factory Sec. Litig.
,
[5] Figure 1, presented at the end of this opinion, is a screenshot of Plaintiff’s comment as it appears on the PVP website.
[6] Plaintiff’s Facebook comment of “Insightful point” could be read to be referring to any number of Pfettscher’s statements, i.e. Otto Warmbier (“a little baby girl”); America’s youth (“spoiled,” “coddled,” “like animals” who disrespect the flag); America (“weak” and “PC”). Or the comment could be suggesting that the use by the posting officer of any or all of the three hashtags—#SeeYouIn15Years #WakeUpAmerica #AskWhatYouCanDoForYOURcountry—was insightful.
[7] “Pennsylvania courts apply the same analysis to both defamation and false light.”
Hill v. Cosby
,
[8] Federal courts sitting in diversity must apply the substantive law of the forum state.
See Erie R.R. Co. v. Tompkins
,
[9] There is some dispute as to whether Section 230 is an immunity or not. For example, the Seventh Circuit, reads
“§ 230(c)(1) as a definitional clause rather than as an immunity from liability.”
Doe v. GTE Corp.
,
[10] The CDA’s preemption clause establishes that Section 230(c)(1) overrides traditional treatment of publishers under statutory and common law. “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
[11] During his eighteen years at the PPD, Plaintiff has served as a patrol officer, sergeant, and lieutenant, and he now oversees the PPD Police Board of Inquiry, which is responsible for disciplining PPD members when a departmental violation occurs.
[12] After oral argument, the Court permitted focused supplemental briefing on one of Defendants’ Section 230
arguments. In their supplemental briefing, Defendants went beyond their permit and included a new argument, not
included in their motion to dismiss, to the effect that the PVP website is not sufficiently “of and concerning”
Plaintiff to be defamatory to him. As such, the Court disregards it.
See United States v. Medco Health Solutions,
Inc.
,
[13] Although Plaintiff advances a claim of defamation-by-implication, he sometimes refers to defamation-by-
innuendo. Courts often analyze defamation-by-implication and -innuendo interchangeably.
See, e.g.
,
Mzamane v.
Winfrey
,
[14] None of the cases cited by the parties in their arguments regarding the disclaimer are sufficiently analogous to
inform the Court’s opinion here.
Stanton v. Metro Corporation
,
[15] The Eleventh Circuit has eloquently articulated why meeting the
Iqbal
and
Twombly
standard is especially crucial
in defamation suits against public officials:
In these cases, there is a powerful interest in ensuring that free speech is not unduly burdened by the
necessity of defending against expensive yet groundless litigation. Indeed, the actual malice
standard was designed to allow publishers the ‘breathing space’ needed to ensure robust reporting
on public figures and events. Forcing publishers to defend inappropriate suits through expensive
discovery proceedings in all cases would constrict that breathing space in exactly the manner the
actual malice standard was intended to prevent. The costs and efforts required to defend a lawsuit
through that stage of litigation could chill free speech nearly as effectively as the absence of the
actual malice standard altogether.
Michel v. NYP Holdings, Inc.
,
[16] The Complaint is dismissed with prejudice. Although leave to amend should be freely granted “when justice so
requires . . . a court may deny leave to amend when such amendment would be futile.”
Budhun v. Reading Hosp.
and Medical Ctr.
,