A federal court in Pennsylvania recently dismissed an ex-university professor's claim for false light publicity. It ruled that the publication was protected opinion. In doing so, the court effectively granted the defendant a mulligan.
Kareem Tannous was a professor at Cabrini University. An organization called StopAntisemitism.org published an article titled, "Kareem Tannous – Professor of Hate," labeling Tannous as "Antisemite of the Week." It included in the article five tweets from Tannous' personal Twitter account with interspersed commentary, such as: "Tannous spreads conspiracy theories of Jewish control, refers to the Jewish people and nation as Nazis, incites violence, and calls [for] the eradication of Israel."
The article also included a call action urging readers to submit an ethnic discrimination complaint against Tannous; and email the President of Cabrini University to "express . . . concern about Professor Kareem Tannous' ongoing antisemitism." The article also commented that "[s]omeone with such intrinsic hatred often manifests their racism into real world situations and neither Jewish students nor faculty should have to be subjected to Kareem Tannous' bias."
Tannous filed a lawsuit against the organization, claiming defamation, tortious interference with a contract and false light invasion of privacy. The court granted a motion to dismiss the defamation and tortious interference claims, but initially did not dismiss the false light claim. StopAntisemitism thereafter filed a motion to reconsider, asking the court to dismiss the false light claim.
Initially, the court was not inclined to consider the reconsideration motion. Courts generally don't grant reconsideration motions, and that is especially the case when the motion raises a point the party should have argued earlier. As the court noted, "motions to reconsider empower the court to change course when a mistake has been made, they do not empower litigants to raise their arguments, piece by piece." Here, StopAntisemitism made arguments in its reconsideration motion that it should have made in its motion to dismiss. And while the court recognized it was unusual to grant a mulligan, it did so here because "[the] First Amendment ha[s] unique significance."
Once it decided to entertain the motion, the court wasted little time in dismissing the false light claim. The court noted that "only statements of fact, rather than mere expressions of opinion, are actionable under Pennsylvania law," unless an opinion can "reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Having already dismissed the defamation because it found the statements constituted opinion, the court followed suit by dismissing the false light claim. In reaching its decision, the court held that "[e]ven if Defendant selectively republished the tweets to create a false impression that Plaintiff is antisemitic – which could satisfy the 'falsity' prong of a false light claim – it nonetheless remains merely an opinion about Plaintiff, even if it is promoted through selectively reprinted material."
The court also concluded that the republished tweets did not "imply the presence of undisclosed facts about Plaintiff of a defamatory nature." In short, even if StopAntisemitism used only selected tweets to support its position, that position remained an opinion. And opinions are not actionable, no matter how a plaintiff's lawyer characterizes them.
Tough luck for Professor Tannous, but I think the Pennsylvania court got this one right.
