Prominent novelist Don Winslow’s tweet defamation lawsuit may go ahead

Of Mahendra vs. Winslowdecided today by Judge James Lorenz (SD Cal.):

The applicant is a medical doctor and works as an OB/GYN. {For the purposes of this order, the Court accepts Plaintiff’s factual allegations as true.} Plaintiff provided medical services to patients at the Irwin County Detention Center (“ICDC”).

In September 2020, a nonprofit organization sent a letter to the Department of Homeland Security regarding reports of high hysterectomy rates at ICDC. The letter also expressed concern about the COVID-19 measures. The plaintiff was not identified in the letter. The organization then shared the letter with several media outlets. In late September, there were various stories about the plaintiff related to medical procedures at ICDC.

On September 20, 2020, the accused Don Winslow, a New York Times best-selling author – posted statements on his Twitter account about the claimant:

The accused has more than 600,000 followers on Twitter.

The plaintiff alleges that the statements are false. Plaintiff alleges that he has performed only two hysterectomies on patients at ICDC and that the procedures were medically necessary. Patients gave informed consent to the procedures. Additionally, U.S. Immigration and Customs Enforcement approved the procedures after conducting an independent review of the treatment, including independent nurse and physician review. This review process takes approximately two weeks.

Five days before the disputed Tweet, it was revealed that the allegations against the plaintiff were not based on first-hand testimony, and the ICDC (in addition to the hospital) confirmed that the plaintiff had not practiced only two hysterectomies on ICDC patients.

The plaintiff sued for defamation and the court allowed the suit. He concluded that the plaintiff was not a public official and therefore did not have to prove “actual malice”:

Here, the applicant worked as a contractor at ICDC. He provided medical treatment after receiving informed consent from detainees and approval from the Department of Homeland Security, which required examination by an independent nurse and doctor. There is no allegation to show that the plaintiff had “substantial responsibility for or control over the conduct of governmental business”, including control over detainees or official policies (for example, what treatment detainees could receive). There is also nothing in the pleadings to suggest that the claimant enjoyed “significantly greater access to effective channels of communication and therefore [had] a more realistic opportunity to counter misrepresentation than that normally enjoyed by individuals.” ….

The court held that the plaintiff had sufficiently alleged a statement of fact rather than an opinion:

Defendant, in the impugned Tweet, asserted an objective fact: Plaintiff committed a crime. Specifically, the plaintiff “performed illegal hysterectomies” on women in detention centers and engaged in “forced sterilization”. The arguably hyperbolic language of the disputed Tweet, “This is the BUTCHER”, does not negate the assertion of facts. This language simply matches the statement that the plaintiff performed illegal surgeries on detainees. This statement can be proven true or false.

The defendant argues that the Court should consider his prior tweets. It is reasonable to infer that the impugned Tweet, when it appears on Twitter users’ feeds, would not have been featured alongside the defendant’s prior tweets. Therefore, while it would be appropriate to consider the other tweets (which are not in the Complaint or on which it relies), they would not alter the above analysis at this stage. See Restatement Second of Torts, § 563(d) (“the context of a defamatory charge includes all parts of the communication which are customarily heard or read with it.”); Underwager versus Channel 9 Austl. (9th Cir. 1995) “in determining whether a statement involves a factual assertion, we look at the totality of the circumstances in which it was made. First, we look at the statement in its broad context, which includes the general tenor of the the entire work, the subject matter of statements, the setting and format of the work.”); Franklin vs. Dynamic Details, Inc. (2004) (“courts consider the nature and entire content of the communication and the knowledge and understanding of the audience for which the publication is intended.”)

The defendant also relies on the claim that his followers would have known that any tweet from him was just an opinion. But it’s not clear from the record that only the defendant’s followers saw the disputed tweet. It is reasonable to infer, which the Court must do in favor of Plaintiff, that non-followers saw the challenged Tweet in their feed, based on the more than 9,000 retweets of the challenged Tweet.

Furthermore, the defendant submits that Twitter is known as a forum for expressing opinions on controversial issues, and therefore any reader would know that the defendant’s statements were only an opinion. This argument is rejected because it is reasonable to infer that in addition to opinions, Twitter users can tweet objective and verifiable facts. Finally, the defendant cites the heated public debate about immigration policy and the treatment of detainees that was unfolding when he posted the impugned tweet. But this context does not alter the defendant’s assertion of fact as to the plaintiff’s criminal conduct.

And the court found the tweet was not protected by California’s statutory fair reporting privilege, which exempts from liability for defamation “a fair and truthful report in, or communication to, a public newspaper… of [a] public due process”:

Based on the limited record, the Court is not persuaded that Twitter reasonably falls within the term “public newspaper.” Merriam Webster defines “newspaper” as “a daily newspaper or periodical dealing specially with current affairs”. Twitter is a micro-blogging platform, not a newspaper or periodical. In any event, the disputed Tweet does not discuss or cite any official proceedings. Instead, the statements relate to the plaintiff’s alleged conduct as a doctor in the detention centers. Although the defendant claims that other posts on Twitter referred to investigations, those posts are separate from the one at issue here. According to the allegations, the privilege is not applicable.

Note that California’s fair reporting privilege seems unusual in its limitation to a “report in, or communication to, a public journal”; the Restatement (Second) of Torts § 611, which generally summarizes the common law, has no such limitation. Under the California statutory test, as interpreted by the court, tweeting a quote reporting what a witness said in a trial (or perhaps even what a court said a witness said in of a lawsuit) may well be defamatory, under the republication rule; that seems wrong to me. Perhaps a future case could examine whether the First Amendment mandates a stronger fair reporting privilege, applicable equally to people who do not write for or to “public newspapers.” See Trainor v. The Standard Times (RI 2007) (“While we need not pass over the issue in this case, we note that recognition of fair reporting privilege may very likely be required by the Constitution in light of the ever-evolving understanding courts of the implications of the First Amendment.”); Liberty Lobby, Inc. v. Dow Jones & Co., Inc. (DC Cir. 1988) (“Federal constitutional concerns are involved…when common law liability is asserted against a defendant for an accurate account of judicial proceedings.”); Medico v Time, Inc. (3d Cir. 1981) (“Although the Supreme Court has never explicitly recognized a constitutional privilege of fair reporting, several of its recent decisions point to this result.”)

Congratulations to plaintiff’s attorneys, Wynter Deagle, Anne-Marie Dao and Yarazel Mejorado of Sheppard Mullin; Stacey Godfrey Evans, Tiffany Watkins and John Amble Johnson of Stacey Evans Law; and Scott Grubman.

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