This is a case in the #MeToo genre. Rudolph runs a “private” Facebook group called The Green Lounge with about 14,000 members. Margolies was a member and made in-group connections with substantial commercial value to him. On June 3, 2020, Rudolph posted the following message to the group:
Over the past week, several women have bravely come forward, putting themselves on the line, to report that members of this community – [REDACTED] and Rob Margolies – crossed the line and caused them harm. I believe these women. I will always believe women and anyone who speaks up about sexual harassment, assault, and other abuses of power. These men have both been permanently removed from this group and will no longer be permitted to participate in any AGR activities, classes, events, or meetups. I realize that this action, and this statement has come far too late. For that and so much more, I am deeply sorry
Margolies claims that Rudolph did not investigate the allegations, and the announcement and termination has hurt his professional reputation.
Margolies sued Rudolph for defamation. The court says that Rudolph made factual claims (not nonactionble opinions) by saying that she got several reports that Margolies “crossed the line,” which the statement indicates means “sexual harassment, assault, and other abuses of power.” However, Margolies’ case falters on other grounds.
Margolies apparently isn’t a public figure, but nevertheless New York’s anti-SLAPP law requires actual malice for “any communication in a place open to the public or a public forum in connection with an issue of public interest.” This is a good example of how anti-SLAPP laws can complement/supplement standard defamation law. Similar to the Davis v. HDR case I blogged last week, the “private” Facebook group qualifies as a public forum:
The group, although “closed” because its content is not generally available online to non-members and members must be admitted, is a public forum. The group has over 14,000 members. Besides its vast membership, The Green Lounge has the character of “a place open to the public,” because it has no meaningful barriers to entry—to join one need only agree to the rules of the group—and its members appear to be free to speak online about any subject openly
(Tip: Facebook really needs to stop calling the groups “private” because the courts are shredding that label).
Margolies didn’t plead actual malice. His allegations that Rudolph didn’t investigate isn’t enough.
Margolies’ complaint also was defective in its allegations of falsity. The complaint uses the term “false” (or a variation) 29 times, but never provides any further facts to support the assertion.
The #MeToo movement could not exist without Section 230 and the actual malice standard. Whenever people in positions of power suggest modifying either legal principle, it’s likely because they know that the doctrines are a threat to their privilege or their privilege blinds them to the risks faced by less-privileged players trying to speak out about the injustices they are experiencing.
Though the defense wins this case, it’s another reminder about the legal risks of providing explanations for account termination decisions. Explanations are a liability trap and, at minimum, a reliable way to spend money on lawyers even if you’re right. This is why imposing a seemingly neutral legal obligation on services to explain their decisions is fraught with implicit legal peril.
Case citation: Margolies v. Rudolph, 2022 WL 2062460 (E.D.N.Y. June 6, 2022)