By Eugene Volokh

Copyright reason

In her briefing, Jankowicz identifies three categories of statements about “Jankowicz and the Board’s authority, intentions, and the fabricated threat they posed to Americans’ free speech” that she asserts are actionable: (1) “claims about how Jankowicz would ‘censor’ Americans”; (2) “claims about how Jankowicz would ‘surveil’ Americans”; and (3) “claims about how Jankowicz would physically harm or imprison Americans.”

[1.] As an initial matter, many of the statements Jankowicz references were directed at the Board and were not of and concerning her, as discussed supra. {For example, Jankowicz alleged that Fox called the Board “this bureau that’s going to spy and target Americans[,]” and accused it of “controlling what you say[,]”} The vast majority of the remaining statements were speculation and conjecture about Jankowicz’s motives, goals, and future actions, of which the truth or falsity were not readily verifiable. {For example, Jankowicz took issue with a statement that “DHS was planning a bigger censorship campaign push” where Jankowicz “[was] going to coordinate with Twitter … to basically censor things.”} … “[P]resumptions and predictions as to what ‘appeared to be’ or ‘might well be’ or ‘could well happen’ or ‘should be’ would not have been viewed by the average reader … as conveying actual facts about plaintiff.” … Much of this speculation was interlaced with hyperbole, which “is simply not actionable,” making it more evidently opinion. {For example, Jankowicz alleges that a Fox host speculated that she “will be the czar of information with this presidency” who “will be telling you what’s true and what’s not—maybe you’ll go to jail.”}

The few non-speculative statements identified in the complaint concerning Jankowicz’s authority and opposition to free speech were likewise opinion. Many were hyperbolic descriptions of Jankowicz’s job description, such as a statement painting her as “our new disinformation minister,” that conveyed mere opinion regarding the perceived dangers of her role. The rest described her current activities as Executive Director, where she was generally described as “censoring” Americans, and having “thought control[,]” over public discourse.

Once again, these statements used hyperbolic language and politically-charged words like “censorship” that, in context, lacked a precise, readily-understood, and falsifiable meaning. As the District Court correctly noted, while “censorship” can encompass “the actual removal of text or video from the public realm[,]” it “can also be understood to encompass efforts to restrain or suppress certain kinds of speech.” Such an amorphous political accusation cannot be assessed as true or false until the term is given a more precise meaning and thus, these statements lack the precision to give rise to a defamation claim. Without a precise and falsifiable meaning, these statements cannot be actionable.

Lastly, the broader social context and surrounding circumstances of these statements would also have signaled to viewers that the statements were opinion and not fact. The Board was, as fairly characterized by the District Court, “a hypercharged subject of political debate,” and the challenged statements were made in a political commentary context. “[E]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.'” That the challenged statements were made in a public discussion of a hot-button political issue only further indicates that they were opinion in nature….

[2.] The court also concluded that Fox’s allegations of Jankowicz having been essentially fired were “substantially true”:

Jankowicz splits hairs regarding Fox’s description of her departure from DHS. By her own description, the Board was “paused”—thereby eliminating her position as Executive Director—and she was offered “the opportunity to stay on with [DHS] as a policy advisor while the Board’s future was under review.” She chose instead to resign. Fox’s description of this sequence of events as Jankowicz being fired, “booted” and “yank[ed]” is substantially true….

[3.] And the court concluded that Fox’s statement “that Jankowicz wanted to give verified Twitter users the power to edit others’ tweets” was likewise substantially true:

In her complaint, Jankowicz quotes an interview in which she discussed a proposed Twitter feature named Birdwatch which, by her own words, would let “verified people … essentially start to ‘edit’ Twitter, the same sort of way that Wikipedia is, so they can add context to certain tweets.” She described this feature as “interesting to [her,]” and said “I like that. I like the idea of adding more context to claims and tweets and other content online, rather than removing it.” Jankowicz also said, however, that “we’re going to have problems scaling it up, and it’s not a solution that works for everything” and concluded that “I’m not sure it’s the solution.”

Jankowicz contends that this was not an endorsement of the feature, and that she merely “said ‘I like that’ about adding context to tweets.” But by her own description, the mechanism by which users would “add context to certain tweets” was by “‘edit[ing]’ Twitter, the same sort of way that Wikipedia is.” … Because Jankowicz expressed appreciation for the Birdwatch feature—even though she noted it was not a global solution to Twitter’s problems—it was substantially true to say she had “pitched” it and that the feature was “her fix.” The “substance” and “gist” of these statements was that Jankowicz had expressed her approval of the feature, which is exactly what she had done….