Free Speech

Eugene Volokh | 12.6.2024 8:01 AM

From Wednesday's opinion by Judge Susan K. DeClercq (E.D. Mich.) in Druskinis v. StopAntisemitism:

In 2023, John Druskinis was a student-athlete on the University of Michigan's ice hockey team. That August, he spraypainted a picture of an ejaculating penis and the slur "fag" on the sidewalk leading up to the Jewish Resource Center in Ann Arbor. As a result, he was kicked off the hockey team, and he later publicly apologized for his actions.

Soon after, StopAntisemitism, a watchdog organization that "exposes" people it views as engaging in antisemitic behavior, caught wind of the story. It posted on X.com (formerly Twitter) about what happened but got an important detail wrong: it reported that Druskinis had spraypainted onto the Jewish Resource Center not a penis or a homophobic slur, but swastikas.

Druskinis says that StopAntisemitism purposely and maliciously turned his life into a living hell through its false reporting. He therefore sued StopAntisemitism and its executive director, Liora Reznichenko (collectively "StopAntisemitism") for defamation, false-light invasion of privacy, tortious interference with business relations, and intentional infliction of emotional distress.

The court allowed Druskinis' defamation claim to go forward as to the swastika allegation:

StopAntisemitism effectively admits that, as a matter of literal fact, it was wrong about what Druskinis spraypainted that day. Even so, it argues that this error is irrelevant because it got the gist of the story right—that is, because its reporting was "substantially true."

Courts do not hold media defendants to a standard of literal and absolute accuracy in every detail of their reporting. Rather, a plaintiff may only pursue a defamation claim regarding statements that are "materially" false. Therefore, if the "gist" or "sting" of the article is true, the plaintiff cannot prevail.

The parties spill a lot of ink over whether it is "substantially true" that Druskinis spraypainted swastikas. But these arguments are premature at the motion-to-dismiss stage, as neither party has had the chance to flesh out the facts during discovery. What's more, the jury may ultimately have to resolve these arguments because under Michigan law, substantial truth (or material........

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