EVEN CRIMINAL SLURS ARE NOT ACTIONABLE AS DEFAMATION IF THEY ARE PURE OPINION; HERE DEFENDANT’S TWEET ACCUSING PLAINTIFF OF MAKING “THREATS” WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined even communications which could be considered “criminal slurs” are not actionable as defamation if they are “pure opinion.” The defendant was a member of the NYC council representing Queens. When defendant opposed the construction of an Amazon corporate headquarters in Queens, plaintiff, a local restaurant owner, in text messages, indicated defendant’s career would be ended if defendant did not withdraw his opposition to the Amazon project: Defendant then put out a tweet accusing plaintiff of making “threats.” Plaintiff brought this defamation action based on that tweet.. Supreme Court denied defendant’s motion to dismiss and the Second Department reversed:

The defendant’s characterization of the plaintiff’s text as containing “several threats rolled into one” is not a statement which can be proved true or false but was, instead, an opinion … . Moreover, “there is simply no special rule of law making criminal slurs actionable regardless of whether they are asserted as opinion or fact” … . Instead, “accusations of criminality [can] be regarded as mere hypothesis and therefore not actionable if the facts on which they are based are fully and accurately set forth” … . Here, the defendant’s statement amounts to no more than “nonactionable opinion or rhetorical hyperbole” … . Bowen v Van Bramer, 2022 NY Slip Op 02975, Second Dept 5-4-22

Practice Point: A tweet accusing plaintiff of making “threats” against defendant city council member (representing Queens) was not actionable as defamation. Plaintiff, a restaurant owner, had texted defendant saying that people would work to end defendant’s political career if he didn’t retract his opposition to Amazon’s building a corporate headquarters in Queens. Defendant then posted plaintiff’s comments in a tweet and accused plaintiff of making “threats.” Plaintiff sued for defamation based on that tweet. In dismissing the complaint, the Second Department noted that even “criminal slurs” are not actionable where, as here, they are “pure opinion.”