The Sixth Circuit Court of Appeals recently affirmed the dismissal of a case against actor James Woods over a tweet he posted during the 2016 presidential campaign. Woods, an outspoken conservative, was sued by plaintiff Portia Boulger, who described herself in her complaint as “a very active volunteer and pledged convention delegate for U.S. Senator Bernie Sanders.”
The case arose from inaccurate information shared on social media. On March 11, 2016, Donald Trump held a Republican primary campaign rally in Chicago. That evening, the Chicago Tribune posted a photograph on its Twitter account of a woman at the Trump rally giving a Nazi salute. The next day, a Twitter user posted the photograph, together with a separate photograph of Boulger, and a caption identifying Boulger as an organizer for Bernie Sanders. The Twitter user wrote (falsely) that “[t]he ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.”
Shortly thereafter, Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” At the time, Woods had more than 350,000 followers on Twitter. Later that day, various newspapers correctly identified the woman who gave the salute at the Trump rally, and it was not Boulger. Woods subsequently tweeted a clarification, and eventually deleted the tweet. But Boulger alleged that she nevertheless received hundreds of obscene and threatening messages, including death threats, as well as numerous phone calls. Boulger filed suit against Woods, alleging claims for defamation and invasion of privacy.
The Sixth Circuit framed the issue as whether Woods’ tweet constituted a false statement of fact, which the court analyzed under Ohio law. Woods argued that because his tweet was posed as a question, it was not a statement of fact, and it was therefore not actionable.
The Sixth Circuit first applied Ohio’s totality-of-the-circumstances test for determining whether a statement constitutes protected opinion or actionable fact. The court noted that many circuits have opined that it is generally settled as a matter of defamation law “that a question, however embarrassing or unpleasant to its subject, is not an accusation.” However, the court relied upon Ohio’s innocent construction rule, under which “a statement reasonably susceptible to both a defamatory and an innocent meaning must be construed, as a matter of law, to have an innocent meaning.” Notably, “[i]t matters not that the defamatory meaning is the more obvious one. So long as the statement may reasonably be read to have an innocent meaning, the innocent construction rule commands that the statement be deemed non-defamatory.”
Applying this rule to Woods’ tweet, the court found that the tweet was reasonably susceptible to both a defamatory meaning – “that Woods was asserting that Boulger was the woman giving the Nazi salute” – and an innocent meaning – “that Woods was merely asking his followers a question.” Because Woods’ tweet could reasonably be read to have an innocent meaning, under the innocent construction rule, it was not actionable as a matter of law.
The case is Boulger v. Woods, 917 F.3d 471 (6th Cir. 2019).