This one is my favorite blog of the year– its almost too fun to be true and reminds me of that old sitcom Community. I loved that show for the same reason I enjoy metaphysics—the story of the story is the story.
Here’s a story: a Plaintiff’s lawyer sues a law firm over a blog about a TCPA case. Court dismisses the claim. TCPAWorld.com covers the story as a story about writing a TCPA story.
Let’s dig in.
Imagine you’re writing a quick and dirty blog over a recent TCPA certification denial. Using an imaginative, “freewheeling, anything-goes writing style” you string together a few musings with a nugget or two of analysis following a frank assessment of the meat of a decision. Lead with a framing intro. Deliver the key takeaway at the end. Loop the two together if you’re a real pro. And you’re off to getting “real” work done.
Yes, the whole thing is formulaic but it’s a formula that keeps the audience pleased and coming back for more. People like getting what they expect. It delivers comfort. And comfort leads to trust. If you try to get imaginative—like having Cheng take over the school and abduct the dean in Season 3, or getting too specific or lengthy with an analogy to a television show that has been off air for several years—your content can become inaccessible and off putting.
But now the key point– in writing the article you probably never thought about the risk of getting sued. But that risk is out there, unfortunately. TCPAWorld.com—like most law firm blogs— is chalk full of opinion writing. Opinions are not always positive. Sometimes opinions are negative. And sometimes people don’t like to hear the negative opinions of others and sue over it.
The decision in Wexler v. Dorsey & Whitney, 18-CV-3066-SJB, 2019 U.S. Dist. LEXIS 186648 (E.D.N.Y. Oct. 25, 2019) hits remarkably close to home in that regard. In that case Dorsey & Whitney—hey didn’t I used to manage an office there?—was sued for an article written by a former attorney over a TCPA blog article entitled “Legal Update: TCPA Class Certification Denial Exposes Major Spousal Scheme.” The Plaintiff in the suit—the lawyer in the underlying TCPA suit that was discussed in the blog— brought a defamation action contending that the title of the article was false and impacted him negatively. Last week, however, the court dismissed the action determining that the headline was merely inactionable opinion.
So here’s the rule. You can’t sue someone for defamation if the statement isn’t false. A statement cannot be false if it cannot be proven true. That is to say, a mere expression of opinion is not actionable because opinions aren’t truth, (no matter what some would have us believe these days.)
In assessing whether a statement is a factual assertion—as opposed to a nonactionable opinion—a court examines three factors: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.”
Understand the framework? Good.
Plaintiff—a Plaintiff’s lawyer— argued that “major spousal scheme” was defamatory because the word “scheme” implied underhanded or dishonest conduct. He argued that although the previous court determined he could not represent a class represented by his wife as a class representative, he had not hidden those facts and so he had not engaged in a “scheme.” But the Wexler Court looked up the word in the dictionary and it turns out the word “scheme” can be completely neutral—like in with regard to a regulatory scheme or a statutory scheme. It really just means a “plan” or “design”—although it can sometimes also mean something negative depending on context. Moreover proving whether something is a “scheme” instead of “plan” is like proving that something is a “scam” instead of a “legitimate opportunity”—the truth is in the eye of the beholder. It is subjective and unprovable; i.e. an opinion.
Moreover, the use of the word “major” was determined to be nothing more than rhetorical flourish—none of those around here—and actually strengthened Dorsey’s hand: “Often, statements of ‘rhetorical hyperbole’ or ‘imaginative expression’ are held not actionable, because they ‘cannot reasonably be interpreted as stating actual facts’ that could be proved false.”
The Court also considered the source of the publication, a law firm’s blog page. As the Court notes such websites are “increasingly commonplace” and act like a “law firm’s editorial or op-ed page.” The law has long protected such editorial or op-ed pages from defamation claims as— such pages are “a forum traditionally reserved for the airing of ideas on matters of public concern. Indeed, the common expectation is that the columns and articles published on a newspaper’s Op Ed sections will represent the viewpoints of their authors and, as such, contain considerable hyperbole, speculation, diversified forms of expression and opinion.”
The Court goes on to analyze the writing style of the author–an old pal of mine– as well, noting that the playful anecdotes at the start and conclusion of the story helped imbue the article with insulating whimsy: “the body of the piece in this case begins and ends with the author’s tongue-and-cheek musings about how he would like to spend time with his wife (camping and going to Greece) and what the Wexlers should do (try salsa dancing). Given this framing, no one could reasonably read the article and its headline as anything other than the author’s opinion and editorial gloss on a court decision.”
Interesting, no? Wexler is actually a really important case—for people who write legal blogs. Which makes this blog very interesting to people who write blogs but not very interesting to people who read blogs except to the extent they want the story behind the story—which is the point of this story. (See how this is all starting to come together?)
And here are the key rules to writing a blog, which is why the blogs you read read the way they do: First, law firms increasingly use blogs because they are outstanding for brand enhancement and credentialing–especially in fast moving areas of law– but those blogs should be viewed similar to op-ed pages and adopt a “freewheeling, anything-goes writing style” characteristic of opinion writing, and not purport to be news reports. Second, the context of these articles should make it clear that statements are not necessarily factual assertions, especially where adorned with rhetorical flourish and detectable hyperbole. Third, casting legal analysis within seemingly irreverent or off-the-cuff musings is important to assist the author in combating a later claim of defamation. Fourth, authors should avoid outright factual assertions unless on personal knowledge—assertions about the outcome of a case should always include a citation to the case and analysis of the case from the author’s perspective.
So keep Wexler in mind next time you read one of my free-flowing TCPA articles full of rhetoric and joy. There’s a story behind the story. And now you know what it is.
One final note—in my opinion it is simply delicious that the Plaintiff sued to quash the headline of a purportedly defamatory article only to have a Court dismiss the claim and quote the entirety of the blog article in the body of the decision— and also reference the purportedly defamatory headline multiple times—leading to additional coverage of the blog and way way more people learning about it and reading it.