Question Mark Leaves Court Questioning Defamation Claim

Advertising Law

Demonstrating the power of punctuation, actor James Woods dodged a Twitter defamation suit after a federal court judge found that his use of a question mark meant his tweet was not a false statement of fact and merely invited the reader to reach his or her own conclusion.

In the midst of the contentious 2016 U.S. presidential campaign, then-candidate Donald Trump held a rally in Chicago. That evening, a local newspaper posted a picture of a woman at the rally wearing a Trump T-shirt and giving the Nazi salute. Another Twitter user re-tweeted that photograph accompanied with one of Portia Boulger, an active volunteer and pledged convention delegate for Sen. Bernie Sanders (I-Vt.).

Within minutes, Woods tweeted the same two photographs, along with the caption “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” At the time, Woods’ Twitter account had more than 350,000 followers. His message was retweeted more than 5,000 times, including once by Donald Trump Jr.

The woman giving the salute was correctly identified as someone other than Boulger, who nevertheless received hundreds of obscene and threatening messages, including death threats. Woods later tweeted, “Various followers have stated that the Nazi Salute individual and the #Bernie campaign woman are NOT the same person,” although he did not delete his first tweet containing the two photographs until Boulger’s attorney reached out. Woods then deleted his original tweet and posted three new messages, asking his followers to stop harassing her.

Boulger filed suit asserting defamation and invasion of privacy. Woods responded with a motion for judgment on the pleadings.

After dealing with issues regarding service of process, U.S. District Judge George C. Smith sided with Woods and concluded that the weight of persuasive authority suggests that questions will not qualify as statements of fact for defamation purposes.

“Were it not for the question mark at the end of the text, this would be an easy case,” the court said. “Woods phrased his tweet in an uncommon syntactical structure for a question in English by making what would otherwise be a declarative statement and placing a question mark at the end. Delete the question mark, and the reader is left with an unambiguous statement of fact: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative.”

But the question mark cannot be ignored, Judge Smith found. “The vast majority of courts to consider questions as potential defamatory statements have found them not to be assertions of fact,” he wrote. “Rather, a question indicates a defendant’s ‘lack of definitive knowledge about the issue’ and ‘invites the reader to consider’ various possibilities.”

While the court was careful to note that questions are not automatically insulated from liability for defamation as a matter of law, Ohio’s “innocent construction rule” pushed the issue over the line. With regard to defamation, if the allegedly defamatory words are susceptible of two meanings, one defamatory and one innocent, the defamatory meaning should be rejected and the innocent meaning adopted.

“Here, the court can certainly envision a reasonable reader interpreting [Woods’] tweet as an assertion of fact that Boulger and the woman giving the Nazi salute are the same person,” the court said. “However, it cannot say as a matter of law that all reasonable readers would interpret the tweet in that way. The question mark leaves open the real possibility that reasonable readers would interpret the tweet as a mere inquiry signaling [Woods’] lack of certainty and inviting his followers to reach their own conclusions.”

Judge Smith also expressed concern that an alternative ruling could subject actual questions to liability for defamation. “Because the tweet is reasonably susceptible of more than one interpretation, one of which is non-defamatory, the Court finds the specific language used weighs against the tweet being actionable for defamation.”

For similar reasons, Boulger’s claim for invasion of privacy also fell.

To read the memorandum opinion and order in Boulger v. Woods, click here.

Why it matters: While the court refused to unequivocally state that the use of a question mark eliminates possible defamation liability, it also expressed concern about subjecting actual questions to liability. Since Woods’ tweet was open to more than one interpretation, the court dismissed the plaintiff’s action.



pursuant to New York DR 2-101(f)

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