By Noah Feldman / Bloomberg Opinion
Retweets are not endorsements, goes the formula. But is a tweet linking to an existing article a republication of the article, legally speaking?
A federal appeals court said last week that the answer may be yes, and on that basis revived a libel lawsuit filed by U.S. Rep. Devin Nunes, R-Calif., against the journalist Ryan Lizza. The consequences are significant, opening the door to a raft of lawsuits against people who post links on social media platforms or anywhere else.
The decision wasn’t illogical, but it’s wrong when considered in the light of the purposes of libel law and the value of free speech. An article that’s already in the public domain and accessible on the web has been published, full stop. A link that helps people find it isn’t a new publication. It’s a web-specific tool to facilitate discovery.
If you’re wondering how a federal court found itself weighing in on the metaphysics of retweets, the answer lies in the modern scheme of libel law created by the Supreme Court’s landmark 1964 decision, New York Times v. Sullivan.
Under that ruling, which a couple of Supreme Court justices have recently questioned, a public figure who has been defamed can only win a libel suit if the victim can show that the person who did the defaming acted with “actual malice,” a legal term of art meaning the defamer knew the defamatory statements were false or recklessly disregarded their falsehood. That’s a much higher standard than is required for an ordinary citizen to win a libel suit. The reason for the disparity is that the Supreme Court wanted to bend over backward to protect journalistic free speech about matters of public importance.
In addressing Nunes’ suit against Lizza, a federal trial court found that Nunes hadn’t shown that Lizza was aware that the alleged defamatory statements were false in his 2018 Esquire magazine article about a Nunes family farm. The U.S. Court of Appeals for the 8th Circuit agreed. Ordinarily, that would be the end of the story and the suit would be dismissed.
But after Nunes sued Lizza — and therefore after the alleged falsehood of the story had been brought to Lizza’s attention — the journalist sent out a tweet directing his followers to the original article. It read:
“I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.”
The appeals court said that by linking to the original article in his tweet, Lizza had potentially republished the article afresh. Under established libel law, if you republish something defamatory, you can incur new liability. The judges concluded that Nunes could try to prove his case in court that linking to the tweet was a defamatory republication.
A huge part of the battle in any libel suit is getting the courts to let you go to trial. A trial is far more costly and time-consuming for the defendant than simply responding to libel allegations with legal pleadings. And once there’s a trial, there’s the risk of big money damages. The point of the Sullivan approach is to protect journalists from libel bullies who try to drag them into court and thereby chill their reporting.
That background helps show why the appeals court is wrong; and the other courts that have addressed the issue in the past were right to say that a link isn’t a republication.
The purpose of the republication doctrine is that someone who puts information into the public domain should take responsibility for it. But linking in a tweet is not putting information into the public domain. It’s pointing out that someone else has put that information out there. That’s also why a retweet isn’t inherently an endorsement: Because I can point out what someone else has said without saying it myself.
It shouldn’t matter that Lizza tweeted a link to his own article. He sent the article into the world when he wrote it. I link to my own articles sometimes; and sometimes that’s because they were wrong when I wrote them and I want to acknowledge the fact.
Most important, if tweeted links were to count as publications, anyone who links to an article — not just the author — might be sued if the article is defamatory. Even that possibility is disastrous for free speech.
On the web, linking is a crucial lubricant for the exchange of ideas. If I have to think hard about linking to something that might be the subject of a libel lawsuit, I might as well not refer to it all. Although the 8th Circuit decision is about a link to Lizza’s own article, the idea that the link is a republication could open the door to abusive suits against third parties.
The upshot is that the appeals court decision is a blow against the Sullivan precedent. That’s bad for free speech, online and everywhere.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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