Crime

I Think Emma Gonzalez Should Sue These Alt-Right Fools For Defamation And False Light

They are smearing her with false images on social media, and there is, in fact, a law against that.

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Emma Gonzalez, the girl on fire. (Photo by NICHOLAS KAMM/AFP/Getty Images)

The President of the United States and his cronies are constantly complaining about “fake news” and threatening to sue people. But our defamation laws are not there to protect the president — the most public person possible who is subjected to political dissent of all kinds. The First Amendment exists SO THAT people can talk smack about the president.

Instead, our torts of defamation and false light are there to protect the reputation of regular people who are subjected to clear falsehoods and smears. Philosophically speaking, these protections should be here for Emma Gonzalez, a teenager.

Gonzalez has become one of the faces of the Parkland Shooting; she’s a survivor who has been out front in the #NeverAgain movement. But she’s also a teenager who is being brutalized on social media by alt-right forces, Nazis, Fox News, and Second Amendment advocates. (If you can still tell the difference between those four groups, mazel. They all look the same to me.)

Yes, Gonzalez has probably become a public person, and as such she’d have a much higher standard to show that individuals are defaming her. But the lies being spread about her are certainly starting to look like “actual malice” to me. Look at what happened to her this weekend. Gonzales was on the cover of Teen Vogue, tearing up a giant target. After this weekend’s March For Our Lives protest, a picture of her went out on “Gab” — a “free speech social network” — purporting to show Gonzales tearing up the Constitution. It was a total fake.

CNN reports that the tweet was retweeted 1,500 times, and received 2,900 likes, before Gab owned up to its hoax. Note how they’re aware enough of defamation laws that they’re making a preemptive case for “clear parody.”

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It seems to me that what Gab did to Gonzalez is a tort violation (Florida doesn’t have a “false light” statue, feeling that their defamation laws already include the same liability). Gab attempted to damage her reputation with a fake photo. Gonzalez, and the rest of the Parkland activists, are not trying to tear up the Constitution, they’re interpreting the Constitution as a document that does not require them to die or prevent sensible gun regulation.

There aren’t at lot of hard and fast rules about what constitutes parody and satire, and what does not. But Gab’s parody defenses are weak on their face. One thing we can look at is whether a reasonable consumer of their network would understand the image to be parody. CLEARLY, based on the reaction to the tweet alone, many people did not know it was fake.

Gab further weakens its own argument with its follow-up tweet. “You’re all mad because it’s believable, isn’t it? That’s the best type of satire.” We can quibble about the best type of “satire” from a comedic perspective, but as a legal matter, you can’t just slap up a lie and call it “satire.”

One can also look at the totality of Gab’s Twitter feed. If the Onion tweeted out this image, they’d have a strong case for parody given that everything they do is parody. Gab, on the other hand, seems to tweet out true (if biased) stories most of the time. I scrolled through their feed for as long as I could without puking, and a fair number of the tweets are from legitimate news sources. A good amount of their commentary is not “satire,” but their opinion offered for the truth of the matter. It’s not a satirical Twitter feed.

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I think Gonzales would have a case that would survive a motion to dismiss, at least. It’s not a slam dunk by any means. But I’d bet she could find a credible attorney to take her case, if she wanted to pursue it. Hell, if Peter Thiel was really as interested in “truth in journalism” as he sometimes claim to be, he should fund the lawsuit.

It’s worth noting something that seems to have been totally lost during the Trump Era: lying about people is wrong. Lying about people is not “free speech.” We actually do have laws that govern what you can say about somebody, and when you spread falsehoods, you can be held to account in a court of law.

It’s not on Emma Gonzalez to save us from fake news. She’s done enough for America already. But if she wants to fight all the darkness in this country on multiple fronts, I think she has a case here.

No, Emma Gonzalez did not tear up a photo of the Constitution [CNN]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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