Judge Makes It Official: Retweets Are Not Endorsements — But In A Strange Case

Back in the spring of 2021, we wrote briefly about yet another Steven Biss SLAPP lawsuit. This one was filed by the brother of disgraced former National Security Advisor Michael Flynn, Jack Flynn, arguing that CNN defamed him by showing a video of both Flynns and other family members, repeating the QAnon slogan where we go one, we go all" while implying that the Flynns were followers" of QAnon. The CNN report barely mentioned the Flynns at all. It was a report about a QAnon gathering, but showed the clip, which the Flynns themselves had placed on social media. Jack Flynn, with Steven Biss as his lawyer, argued that this clip was defamatory.

The case has been contentious since then with papers flying back and forth, including CNN even trying to block Biss from being able to appear before the court at all:

Here, this Court should deny Mr. Biss' application because he has a history of making bad faith allegations against defendants in defamation actions, including his conduct towards CNN. Just a few days ago, the United States District Court for the District of Maryland sanctioned Mr. Biss in the amount of $21,437.50 in attorneys' fees and $52.26 in expenses because he engaged in bad faith conduct in filing the last-minute Amended Complaint" against CNN.

The court allowed Biss to appear, and generally the case has mostly gone as many Biss' cases seem to go: with lots of wacky claims from Biss that don't survive much scrutiny. The magistrate judge assigned to the case issued a report recommending the Article III judge reject all of the claims, but deny CNN's request for fees.

However, rather than accept all of the magistrate judge's recommendations, the judge (somewhat generously, I'd argue) allowed a false light claim to stick around, arguing at this stage of the process (the motion to dismiss stage), the court needed to accept all of the Flynns' allegations as true, so if they claim they're not followers of QAnon, that has to be taken as true, and that allowed the false light claim to live on. CNN asked the court to reconsider, highlighting what appeared to be similar cases that were dismissed, and arguing there can be no false light when it is substantially true" that the Flynns' showed public support for QAnon.

This Court clearly erred in failing to dismiss Plaintiffs' false light claim. Havingconcluded that Plaintiffs' public statements express support for QAnon," see Dkt. 42 (M&O")at 8, this Court should have applied the substantial truth test articulated in Masson v. New YorkerMagazine, Inc., 501 U.S. 496 (1991) and Tannerite Sports, LLC v. NBCUniversal News Group,864 F.3d 236 (2d Cir. 2017), and concluded that the alleged defamatory sting of the Report - i.e.that Plaintiffs are QAnon followers - is substantially true. Yet, this Court never undertook thesubstantial truth analysis. Once the Court does so, given Plaintiffs' public decision to alignthemselves with QAnon, no reasonable reader could conclude that it is materially false todescribe Plaintiffs as QAnon followers.

Part of CNN's argument is that Jack Flynn retweeted multiple tweets that, at the very least, suggest that he supported QAnon.

It is undisputed that the Flynns made - and Jack Flynn himself retweeted - a public video showing Plaintiffs using a phrase that is used solely by those within the QAnon movement:where we go one, we go all" (the QAnon Phrase"), accompanied by the hashtag#TakeTheOath. See Am. Compl. 4, n.2. It is undisputed that Plaintiffs posted or liked multipletweets containing the hashtag for that Phrase (#WWG1WGA), in addition to other statementsand imagery that expressed or implied support for the movement. See Motion at 3-4. It isundisputed that Jack Flynn, as Magistrate Judge Cave correctly pointed out, tweeted on August21, 2020 that Q" and where we go one, we go all" works for me." See Dkt. 38 (R&R") at 4.And it is undisputed that where we go one, we go all" is a slogan used by adherents of theQAnon conspiracy theory." United States v. Languerand, No. 21-CR-353 (JDB), 2021 WL3674731, at *3 (D.D.C. Aug. 19, 2021). Plaintiffs publicly aligned themselves with QAnon.Quibbling with the nuance of describing Plaintiffs as QAnon supporters rather than followers isinconsistent with the substantial truth standard articulated in Masson and Tannerite. That isparticularly so where, as here, some of Plaintiffs' actions were literally to follow other QAnonspeakers on Twitter and retweet their statements

And, then that takes us to the ruling this week, in which the judge, Gregory Woods, gets to explain, in detail, why retweets are not endorsements:

What does it say about you if you follow" someone on Twitter? What does it say about youwhen you retweet someone else's tweet? These are not just questions for Millennials or Zoomers.They are critical questions in this motion to dismiss. CNN argues that the Court should conclude asa matter of law that by retweeting another's tweet, the retweeter is adopting every word in the tweetas their own. A retweet, in CNN's view, cannot merely be used to comment on another's tweet orto forward the fact of its existence to another. CNN also argues that the Court should adopt theposition that when you follow" a person's Twitter feed, you become that person's follower," inthe sense that you are now an adherent to the entire belief system of the tweeter. By followingsomeone on Twitter, in CNN's view, you are not merely interested in seeing what the person youare following has to say. The Court remains unwilling to adopt as a matter of law CNN's sweepingassertions regarding the significance of a retweet, or what it means to follow" someone on Twitter,and therefore denies CNN's motion for reconsideration in part and denies CNN's motion to certifyan interlocutory appeal.

As others, including Prof. Eric Goldman have noted, it's kind of weird that this case even got this far. There are all sorts of reasons why the court should have dismissed this clearly frivolous case. Indeed, the judge even seems to recognize that the case is unlikely to survive summary judgment (the next stage after some level of discovery), but keeps repeating that at the MtD stage, he can't yet look at evidence, and has to take the Flynns' claims that they're not followers of QAnon as truth.

In some ways, keeping this case alive is frustrating, since there are all sorts of ways in which the court could have dumped it (as the magistrate judge recommended). Also, it seems quite unlikely that the case will survive summary judgment. But, because the judge is allowing the case to continue it becomes even more costly, as the discovery and efforts around summary judgment can really add up.

That said, the underlying point made by the judge is actually good and useful. We shouldn't be held legally liable for retweets or who we follow online. And there are some quotes in this decision that will likely be useful in other cases where plaintiffs seek to hold others legally liable for retweets:

CNN's argument places far too much weight on the significance of the Flynns' social mediaactivity. Crucially, none of the Flynns' tweets state that they are believers in the QAnon movement.For instance, in one of Jack's tweets on August 20, 2020, Jack stated I advocate for theConstitution and Bill of Rights. If Q does too~No harm no foul." Am. Compl. 23. Similarly,after a Twitter user replied to one of Jack's tweets with a tweet stating, We are with you Jack!"along with an image of the letter Q' and the slogan where we go one we go all" superimposed overan American flag, Jack tweeted, If this means you believe in the constitution and equal justice underthe law then this works for me." Id. As the Flynns identify in the complaint, while Jack's tweetsembraced the Constitution and equal justice under the law," Jack's tweets do not state that hebelieves in the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon."Id. The Court cannot assume that Jack believes in every viewpoint held by the QAnon movementmerely because Jack tweeted that he shares QAnon's alleged belief in the Constitution, the Bill ofRights, and equal justice under the law. CNN's assertion that believing in these principles automatically makes someone a QAnon adherent is simply wrong. A person can believe in certainviewpoints espoused by a movement without believing in all aspects of the movement.

In addition, CNN argues that the Flynns publicized their support for QAnon" throughretweets. Mot. at 3. In the R&R, Judge Cave also relied on the Flynns' retweets to support theconclusion that CNN's statement was substantially true. In one example, Jack retweeted a postwhich stated, Qanon is not a violent conspiracy. We are every day people seeking truth.. . . . Qanon's, share and tell your story." Mot. at 3. Judge Cave concluded that [b]y using theword we,' Jack included himself as one who follows the opinions' of QAnon, and invited otherswho share[d]' those opinions to join his comments." R&R at 31. By relying on the Flynns'retweets, CNN assumes that the Flynns believed in, and adopted, everything that they retweeted. Inessence, CNN is asking the Court to conclude as a matter of law that retweeting a statement is thesame as making the statement in the first instance.

The Court disagrees. Jack did not make the statement, We are every day people seekingtruth." He retweeted it. There are many reasons that someone might retweet a statement; a retweetis not necessarily an endorsement of the original tweet, much less an endorsement of theunexpressed belief system of the original tweeter, as CNN would have it. Therefore, at the motionto dismiss stage, the Court cannot conclude as a matter of law that Jack adopted the content of thetweet and was therefore calling himself a member of the QAnon movement by using the wordwe." Nor can the Court conclude that the Flynns personally believed the other statements thatthey retweeted, particularly in light of the Flynns' factual allegation that they do not share the beliefsof the QAnon movement.

That said, some of the ruling is a bit worrisome in its own way, as it suggests that as long as someone doesn't agree with EVERY principle of a group, it could be false light to call them a follower" of that group. That can't be correct either, because obviously there are tons of followers" of different religions, philosophies, gurus, etc. who don't believe each and every tenet of those they follow. But should it then be false light for someone to suggest, in passing, that they're followers? That seems like a stretch.

So, in the end, this case is a weird one. It still seems like a pretty obvious SLAPP suit that should have been done away with quite early. But, for now it lives on. Overall, the case still seems like a likely loser. The defamation claims have all been dismissed. All that's remaining is this very weak false light claim, where the court is already telegraphing that after it can consider actual evidence that will be presented during the summary judgment stage, CNN still seems likely to succeed.

But, out of all of this mess, there is still something kind of useful: a court saying that retweets (and follows) are not, by themselves, endorsements of the views within.

So, all of you who have retweets are not endorsements" in your bios can maybe delete that now. It's official.