Quite the TCPA OPINION: Plaintiff Can’t Sue TCPA Blog for “Major Spousal Scheme” Headline–May Face Sanctions

This is just incredible.

You might recall from my favorite blog of 2019, that my former firm was sued because my former counsel wrote a TCPA article on my former blog. It was a nonsense suit–in my opinion–and should never have been brought–in the district court’s opinion.

Well somehow the case made it all the way to the Second Circuit Court of Appeals which just issued its own opinion that the blog’s purportedly defamatory content was… just an opinion. And Plaintiff may face sanctions for bringing a frivolous appeal as a result. The decision is here: Wexler v My Former Firm

I know there’s a lot going on in TCPAWorld, but let’s discuss this real quick.

A blog is a great engagement tool. It is a nice way to communicate and build a fan base–I oughta know. Its like an editorial page where authors can share their views–i.e. opinions–and take part in that glorious (but diminishing) free speech right we have in this country.

Now, there are limits.  You can’t just use your blog to make outright false statements, especially if they are derogatory of others. (That’s why I always try to be nice ;)) But statements of opinion are never actionable. Never.* Again, that’s the whole free speech thing.

But there is sometimes a grey area between fact and opinion–i.e. where a characterization of fact is made in a manner that could be taken as true but that, in context, was merely a playful turn of phrase. And that’s what makes Wexler a really interesting landmark in the defamation landscape. Indeed, the Wexler opinion is, undoubtedly, the single most important piece of case law assessing what is and is not permitted on a legal blog, if only because there aren’t any others.

And while this might only seem interesting to folks that run blogs, it actually has important First Amendment implications. Remember, not all speech is constitutionally-protected speech. And while the TCPA is the single broadest restriction on protected speech, many forms of speech just aren’t protected by the First Amendment and can be outright banned– false speech that impairs someone’s profession is just such speech. This sort of speech gives rise to libel claims– which can be very expensive. (Which is why lawyers should always be careful about saying anything unpleasant about other lawyers…)

But since there is a grey area here that means that we don’t know what is, and is not, lawful speech. And that’s what makes Wexler important-it helps distinguish between fact and opinion. It sometimes turns on context–which is important to keep in mind.

Here’s the key analysis:

The tenor of the article reflects that it is meant to be not only informative but also amusing and entertaining, making hyperbole in the headline expected and reasonable. The article’s placement on a law firm’s blog also suggests that it is informed, at least in part, by the firm’s and its author’s opinions. The context of the statement therefore cuts against a determination that it is an assertion of fact meant to be taken literally. The language “exposes major spousal scheme” also does not have a readily understood precise meaning of the nefarious sort that is advanced by Wexler – it could just as easily mean exactly what happened here, that the TCPA decision brought to light an ethically questionable arrangement by a married couple (here, to represent both the attorney’s and the class’s fiscal interests in a class action). The use of “major” does not change this analysis, as that is a relative term, the applicability of which is a matter of opinion. An average reader would not understand the headline to be “an attempt to convey with technical precision literal facts about” Wexler. Mr. Chow, 759 F.2d at 229. And because the statement does not have a readily understood precise meaning, it is not capable of being proved true or false. See id. (explaining that, because a reasonable reader would not take literally the language used, the statements read reasonably are not capable of being proved false). Nor do we think that a reasonable reader would think that the headline was based on facts other than those disclosed in the article, which accurately describes the ruling of the court. 

This analysis is obviously important for anyone running or writing on a legal blog to keep in mind. But for anyone looking for the limits of their free speech, Wexler is a nice flashlight for use in the dark night of murky doctrine.

And note that Plaintiff may have to answer for a “frivolous” appeal here:

It is further ORDERED that within 14 days of the issuance of this order, Wexler show cause why sanctions should not be imposed for filing a frivolous appeal.

Really remarkable stuff.

*ok fine, sometimes opinions can be actionable if they imply knowledge of undisclosed facts. See Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (explaining that statements of opinion “may yet be actionable if they imply that the speaker’s opinion is based on the speaker’s knowledge of facts that are not disclosed to the reader.) Also just a reminder- statements on this blog are not legal advice. Just my opinion. 🙂


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