Retweets Didn’t Reset Defamation Statute of Limitations–Crosswhite v. Reuters
Benjamin Crosswhite traveled in Jerry Falwell Jr.’s orbit. Reuters published allegedly defamatory stories about Crosswhite in August and September 2019. Crosswhite sued Reuters for defamation in March 2021. Virginia has a 1 year statute of limitations (SOL), which had a 4-month tolling in 2020 due to COIVD. Given the dates, this should be an easy dismissal.
To reset the SOL, Crosswhite pointed to a Reuters employee’s August 2020 tweet linking to the August 2019 story. The tweet thread included @replies to a few other folks, which the plaintiff claims “shows an intent to republish old content to new target audiences.” The Fourth Circuit recently addressed this argument in Lokhova v. Halper, holding that there wasn’t an SOL reset when the hyperlink “served as a reference for the New York Times’ existing audience and did not direct the old article to a new audience.” Applied to this case:
the 2020 tweet about the 2019 articles served as a reference for Reuters’ existing audience. The subsequent publication did not add or alter the original publication. The 2020 tweet does not contain the words “pool boy,” nor does it include any other terms to add to the original article or suggest in any way that plaintiff was the “pool boy.” It merely states, “Other great reporting on Falwell & Liberty U. by @AramRoston @jschney.”
Third-party retweets also don’t reset the SOL.
Crosswhite cited Nunes v. Lizza, 12 F.4th 890 (8th Cir. Sept. 15, 2021), which held that retweeting an already-published article, after a complaint alleged that it’s defamatory, could constitute a “republication” of the article that supports actual malice. This court says that ruling is not binding on the Fourth Circuit; and further, the Nunes case dealt with actual malice (not SOL), and the tweet at issue in the Nunes case “provided more than a ‘mere hyperlink;’ it contained additional statements with potentially defamatory implications.” Those “additional statements” in the Nunes case: “encouraging readers to peruse his ‘strange tale’ about ‘immigration policy,’ and promoting that ‘I’ve got a story for you.’” Those aren’t obviously defamatory additions, so the court is making a fine distinction.
So, the good news for defamation defendants: this defendant successfully invoked the SOL despite the retweet. The bad news for defamation defendants: retweeting or hyperlinking to past stories can be a basis for plaintiffs to extend the proceedings in court, arguing that it should reset the SOL. Worse, plaintiffs can weaponize any extra words in the retweet/hyperlink, so the “safest” retweeting/linking to past stories says nothing. 🙄
A well-functioning SOL needs to be a rule, not a standard; and the rule needs to be clear enough that people can confidently retweet/link to their past posts without fearing an SOL reset. That’s not where we’re at today, especially in light of the Nunes ruling. I’m hoping the appellate courts sort this out favorably without the issue rising to SCOTUS, where at least 2 judges could be ready to dramatically reshape defamation law in plaintiffs’ favor.
Case citation: Crosswhite v. Reuters News & Media, Inc., 2021 WL 6125750 (W.D. Va. Dec. 28, 2021)