Facebook Post and Blog Entry About Judicial Endorsement Held to be Defamatory — Lewis v. Rapp

[Post by Venkat Balasubramani]

Lewis v. Rapp, COA11-1188 (N.C. Ct. App.; May 1, 2012)

Lewis was a senior judge in North Carolina who was running for re-election. Lewis was also a vocal supporter of William Rabon who was a state senate candidate. Rapp is a blogger who supported Rabon’s opponent and served as the opponent’s unpaid “media strategist.” Rapp published two blog posts about Lewis’s support for Rabon.

The first post, published on April 9, 2010, criticized Lewis’s support of Rabon:

When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics.

In response to this post, Lewis’s lawyer emailed Rapp and advised that Lewis was a candidate for judicial office and as such was allowed under the Code of Judicial Conduct to endorse other candidates. Lewis’s lawyer also cited to a letter published by a Chief Judge outlining what conduct was appropriate and what was inappropriate as far as support for other candidates by judges (it said that a candidate for judicial office can endorse other candidates).

After receiving the lawyer’s email, Rapp published a follow up post, attempting to correct his initial post. The follow-up post, published three days later read as follows:

I have spent this past weekend in prayer, mediation [sic], and contemplation . . . . First, let me apologize for my comment about the sitting judge being in violation [of] the North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and I have neither right nor authority to make that judgment . . . . I have read, top to bottom, the North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind.

The court dismisses the claim based on the initial April 9 post but denies defendant’s motion to dismiss the claim based on the April 12 post.

April 9th post: With respect to the April 9th post the court holds that there is no evidence that Rapp had actual knowledge of Lewis’s candidacy. The court also says that there is insufficient evidence to conclude that Rapp acted with actual malice. While Rapp could have undoubtedly have determined that Lewis was a candidate for office, and this may demonstrate that Rapp was negligent in verifying the truth of the statement, there was no evidence in the record that Rapp subjectively harbored any doubts as to the truth of the statement.

April 12th post: The court says that the April 12th post is capable of only one interpretation: “defendant was still attempting to convince the readers that plaintiff was in violation of the Code of Conduct when she supported Rabon’s campaign.” The key question with respect to the April 12th post was whether it was a statement of opinion or fact. (This was relevant to the April 9th post as well, but given the lack of actual malice, the court doesn’t reach this issue with respect to the April 9th post.) The court notes that speech regarding candidates or an election is at the heart of the First Amendment. The court then says that whether something is fact or opinion depends on the language used as well as the surrounding context. While defendant’s statement that it was “wrong” for Lewis to campaign is protected opinion, the statement that Lewis was in violation of the Code of Judicial Conduct and could be subject to official disciplinary action is different.

Although defendant prefaced his statement by noting that he was only stating his opinion, the court says that this type of a disclaimer is not sufficient to shield a speaker from liability from an underlying statement that is defamatory. Defendant claimed he read the Code of Conduct from “top to bottom.” He also appended portions of the Code of Conduct to the blog post, but failed to attach the particular Canon that exonerated Lewis from any wrongdoing. His reference to the fact that he supposedly consulted his lawyer friend didn’t help:

Not only did defendant attempt to mislead the readers by afiling to attach Canon 7b(2), he also stated that he had discussed the matter with his friend, an attorney, and they agreed that there was ‘probable cause’ for disciplinary action . . . . Defendant was clearly trying to bolster the validity of his false accusations . . .

Although the court ultimately leaves this issue for the jury, the court says that plaintiff’s April 9th email was sufficient to put defendant on notice of the underlying facts and defendant cannot show the absence of actual malice.

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The case is worth noting in terms of its treatment of blog posts and context. (See my post from last week about whether statements made on Twitter should be routinely accorded opinion status: “A Twitter Exception for Defamation?”) Despite the availability of the opinion defense based on a statement being made in the online context, courts seem perfectly willing to scrutinize statements carefully.

Regarding the first statement, it was interesting that the court imposed a relatively low standard on the defendant and did not require the defendant to have done the basic research about the plaintiff’s candidacy. This information would undoubtedly be available on the internet. Nevertheless, the court hews to the First Amendment standard that actual malice requires proof that the speaker harbored doubts regarding the veracity of the statement.

It’s equally interesting that the court dings the defendant for failing to include the link to the exculpatory Canon in question. There’s no evidence in the record as to whether this a result of carelessness or real malfeasance. I would think the former, given the contrite tone of the blog post, but the court considers this along with defendant’s attempts to persuade readers to find that the defendant’s statement is not one of opinion.

The case also illustrates the pitfalls of retractions and follow-up comments.

I guess a final pointer from this case is: beware of casual legal advice from friends who happen to be lawyers.

[Edited: to fix the names of the parties, which I had reversed.]

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