United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE
Cassandra Fairbanks trolled the web through Twitter,
releasing a photo of herself and a fellow journalist in the
White House press room making a gesture widely recognized as
the “okay” hand symbol but also speculated at the
time to be a “white power” symbol. Defendant Emma
Roller, also a journalist, retweeted the photo with the
caption, “just two people doing a white power hand
gesture in the White House.” Ms. Fairbanks sued Ms.
Roller for defamation. The First Amendment requires that Ms.
Fairbanks' claim be considered “against the
background of a profound national commitment” to the
freedom of speech and especially of political speech, which
is “essential to the security of the Republic.”
See New York Times v. Sullivan, 376 U.S. 254, 269-70
(1964). This “fundamental principle of our
constitutional system” obligates Ms. Fairbanks, as a
public figure, to support her defamation claim by alleging
facts that support a finding of actual malice on the part of
Ms. Roller. See Id. at 269, 279-80. Because Ms.
Fairbanks has failed to allege such facts, Ms. Roller's
Motion to Dismiss under the Federal Rules of Civil Procedure
will be granted. The District of Columbia's anti-SLAPP
statute does not apply in federal court, so Ms. Roller's
Motion to Dismiss and request for attorney's fees under
the anti-SLAPP statute will be denied.
Fairbanks describes herself as a political activist and a
grassroots journalist who uses social media to reach the
public. Am. Compl. 2, ¶ 4. She describes Ms. Roller as a
gatekeeper journalist with an esteemed professional
reputation, though she also alleges that Ms. Roller works for
a click-bait news site that intentionally publishes fake
news. Id. at 2-3. According to Ms. Fairbanks,
gatekeeper journalists like Ms. Roller consider themselves
superior to grassroots journalists. Id. at 2. At the
same time, they fear that grassroots journalists threaten
their role as “[t]he primary gatekeepers of
news.” Id. Because of their fear, Ms.
Fairbanks alleges, some gatekeeper journalists “wage a
personal, political war on their ideological adversaries and
grassroots competitors.” Id. According to Ms.
Fairbanks, this conflict intensified when grassroots
journalists received White House press passes. Id.
Ms. Fairbanks received a White House press pass, she and a
fellow “new media” journalist posted a picture of
themselves making the “okay” hand symbol in the
White House press room. Id. At the time, there was
ongoing public debate about whether the alt-right movement
had turned the gesture into a hate symbol. Memo. ISO Mot.
Dismiss 2-3 (citing news articles about the
“okay” hand symbol). Ms. Roller retweeted Ms.
Fairbanks' photo, adding the caption, “just two
people doing a white power hand gesture in the White
House.” Am. Compl. ¶ 6. She followed up with a
second tweet, which stated “for reference, ”
provided a link to an article on the Anti-Defamation League
website, and contained a graphic of the “okay”
symbol with the letters W and P traced over
the fingers and the words “white
power.” Ms. Roller then published a third tweet,
noting, “people in the alt-right vigorously deny it has
anything to do with white power, but keep using it to annoy
tweets were read, retweeted, and referenced by a variety of
“major news outlets, ” though not by any
“serious publication in America.” Am. Compl.
¶¶ 8-9. Ms. Fairbanks tweeted, “They've
become so easy to troll that you don't even have to make
an effort anymore, ”and, “The outrage is cracking me
up.” Similarly, Ms. Fairbanks responded to a
tweet that read, “Please tell me you guys made the OK
sign to troll off this fantastic lefty hysteria, ” with
an emoji of a smiley face sticking out its tongue and
winking. But then Ms. Fairbanks sued Ms. Roller,
arguing that Ms. Roller's first tweet defamed
Ms. Roller filed Motions to Dismiss under the Federal Rules
of Civil Procedure and the District of Columbia anti-SLAPP
Supreme Court has directed courts to expeditiously weed out
unmeritorious defamation suits.” Kahl v. Bureau of
Nat'l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir.
2017). Early resolution of defamation cases under Federal
Rule of Civil Procedure 12(b)(6) “not only protects
against the costs of meritless litigation, but provides
assurance to those exercising their First Amendment rights
that doing so will not needlessly become prohibitively
expensive.” Palin v. New York Times Co., 264
F.Supp.3d 527, 533 (S.D.N.Y. 2017).
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a complaint must contain sufficient
factual allegations that, if true, “state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility
requires that a complaint raise “more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pleading facts that are “merely consistent with”
a defendant's liability “stops short of the line
between possibility and plausibility.”
Twombly, 550 U.S. at 545-46. Thus, a court
evaluating a motion to dismiss for failure to state a claim
does not accept the truth of legal conclusions or
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678. That said, it construes the
complaint in the light most favorable to the plaintiff and
accepts as true all reasonable inferences drawn from
well-pled factual allegations. See In re United Mine
Workers of Am. Emp. Benefit Plans Litig., 854 F.Supp.
914, 915 (D.D.C. 1994). Consideration is limited to
“the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and
matters of which [the court] may take judicial notice.”
Hurd v. D.C. Gov't, 864 F.3d 671, 678 (D.C. Cir.
District of Columbia law, a defamation claim requires: (1) a
false and defamatory statement; (2) published without
privilege to a third party; (3) made with the requisite
fault; and (4) damages. See Beeton v. District of
Columbia, 779 A.2d 918, 923 (D.C. 2001). Ms.
Roller's motions argue that Ms. Fairbanks has not pled
facts to support findings of falsity and fault. Ms. Fairbanks
concedes that she is a public figure. See Pl.'s
Opp. to Mot. Dismiss 4 (reciting standard for public
figures), 10-12 (applying standard for public figures). Under
First Amendment law, this means that she bears a heightened
burden on both these elements. Liberty Lobby, Inc. v. Dow
Jones & Co., Inc., 838 F.2d 1287, 1292 (D.C. Cir.
First Amendment requires public figures suing in defamation
to “demonstrate by at least a fair preponderance of the
evidence that the [allegedly] defamatory statement is false,
” with close cases decided against them. Liberty
Lobby, 838 F.2d at 1292. Although the First Amendment
permits liability for false factual statements under some
circumstances, “a statement of opinion relating to
matters of public concern which does not contain a provably
false factual connotation will receive full constitutional
protection.” Milkovich v. Lorain Journal Co.,
497 U.S. 1, 20 (1990). Pure statements of opinion can never
support liability because “[u]nder the First Amendment
there is no such thing as a false idea.” Gertz v.
Robert Welch, Inc., 418 U.S. 323, 339 (1974).
in this jurisdiction consider four factors to determine
whether a defendant has stated a fact or an opinion.
Ollman v. Evans, 750 F.3d 970, 979 (D.C. Cir. 1984).
First, courts evaluate whether a defendant's statement
“has a precise core of meaning for which a consensus of
understanding exists or, conversely, whether the statement is
indefinite and ambiguous” and thus less likely to carry
specific factual connotations. Id. Second, courts
evaluate whether the statement can be “objectively
characterized as true or false” or instead “lacks
a plausible method of verification.” Id.
Third, courts evaluate any unchallenged language that
provides context for the challenged statement-for example,
the uncontested portions of an article or column-to determine
whether the context would influence an average reader's
perception that the challenged ...