James Woods’ Use of a Question Mark Helps Him Beat Defamation Lawsuit Over Tweet

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The actor prevails in a case that examined: "So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?"
Tibrina Hobson/Getty Images
Did James Woods get lucky?

During the heated 2016 presidential election, the actor seemingly misidentified a Nazi on Twitter. He got sued, but on Wednesday, Woods convinced an Ohio federal judge to dismiss the defamation and invasion-of-privacy lawsuit.

Specifically what happened was that Woods, a noted conservative voice, was in the midst of his own legal campaign to crack down on lies on social media when he tripped up. An individual at a Donald Trump rally was captured by news media giving a “Heil Hitler” salute. Then, a Twitter user posted a photo of this individual that had run in the Chicago Tribune along with a picture of another woman, Portia Boulger, who was identified as a Bernie Sanders organizer. Woods ran with this. Using the photos, Woods tweeted, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”

Of course, the women weren’t the same, and Boulger subsequently filed her lawsuit. The plaintiff was never able to serve Woods with legal papers, however, and so the first half of U.S. District Court Judge George C. Smith’s opinion relates to whether his court can exercise jurisdiction over Woods. Ultimately, the judge comes to the conclusion here that Woods was aware of the lawsuit, hired a lawyer to defend it, and that by making a motion over whether Boulger had properly stated claims, he had waived a jurisdictional challenge.

A good thing too because it then allows Smith to provide some deeper thoughts on the viability of Boulger’s lawsuit.

Woods argued that his tweet couldn’t be actionable because he merely asked a question that invited readers to draw their own conclusions. In short, he contended that there was no false statement of fact.

The judge first looks at the language used in the tweet.

“Were it not for the question mark at the end of the text, this would be an easy case,” writes Smith. “But the question mark cannot be ignored. The vast majority of courts to consider questions as potential defamatory statements have found them not to be assertions of fact. Rather, a question indicates a defendant’s lack of definitive knowledge about the issue and invites the reader to consider various possibilities.”

Smith notes that those who use questions aren’t automatically insulated from defamation liability. It’s all about context. Then again, the judge can’t find a past example of a court holding someone to task after raising a question.

“Moreover, Ohio recognizes an ‘innocent construction rule’ with regard to defamation,” continues Smith. “That is, if allegedly defamatory words are susceptible of two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted. Here, the Court can certainly envision a reasonable reader interpreting Woods’s tweet as an assertion of fact that Boulger and the woman giving the Nazi salute are the same person. However, it cannot say as a matter of law that all reasonable readers would interpret the tweet in that way.”

More legal parsing comes when the judge analyzes whether the statement is verifiable.

According to the opinion, “If readers understand Woods to be making an assertion of fact — ‘The person pictured giving the Nazi salute is, in fact, Boulger’ — then that assertion is undisputedly verifiable. Indeed, Woods characterizes his tweet as asking his followers to verify that assertion, and various media sources and Peterson herself have disproven it. But if, instead, readers interpret the tweet as Woods asking a question — ‘Is the person pictured giving the Nazi salute, in fact, Boulger?’ — the question itself cannot be proven or disproven because questions, by their nature, lack truth values.”

Then, there’s the broader context, which has the judge looking at both the medium of Twitter as well as the political context.

Woods wanted the judge to focus on his message that given day, whereas Boulger argued Woods’ Twitter feed as a whole should be taken into account. The judge doesn’t like either approach, nor any analogy to a newspaper or magazine. The judge says that the nature of a tweet is “fundamentally different,” and seems to struggle with a platform where Twitter readers miss certain messages from a given user.

“The further difficulty with Twitter accounts is that each is unique in tone and content,” writes Smith. “Many established news reporting outlets maintain Twitter accounts for the very purpose of reporting the news. An individual Twitter user may use his or her account to bring attention to particular facts and news stories; another, to share personal opinions about those new stories; another, to engage in political satire; another, to post personal anecdotes; and so on. Others may engage in a combination of these activities. As a result, a reader cannot tell anything about whether a particular Twitter account is likely to contain reporting on facts, versus personal opinion or rhetorical questions, from the mere fact that the author uses of Twitter as his or her preferred communication medium.”

Nevertheless, the judge begins an attempt at capturing the essence of Woods’ Twitter account and his reputation before saying there’s not much evidence on record and shrugging off any implications from the fact that the statement came during a political campaign. As such, the judge says he can’t define the parameters of the broader context, although the section is still noteworthy given the increasing amount of defamation lawsuits directed at what people write on social media.

Ultimately, it’s the use of a question mark that largely saves Woods. Below is the full opinion, which also goes into analysis on the privacy claim:


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