In Employment Case, Texas Trial Court Holds That Retweets Are, In Fact, Endorsements As A Matter Of Law

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As you know, we here at Abnormal Use adore Twitter, and we often write about the perils of social media in litigation. That said, we were a bit unprepared for the trial court’s summary judgment ruling in Frost v. New Public News, L.L.C, No. 2014-CV-12052 (21st District Court of Harris County, Texas, April 1, 2014). In that case, a Harris County, Texas district court judge held that retweets are, in fact, endorsements as a matter of law.

Some background (from the court’s summary judgment order): Houstonian Elliott Frost served as the entertainment editor of The New Public News, one of those alternative news weeklies found in large metropolitan areas. As such, he reviewed films, authored record reviews, and generally commented upon the slings and arrows of the local and national entertainment industry. Just a few weeks ago, on Oscar night, when Academy Awards host Ellen Degeneres asked viewers to retweet her now infamous Hollywood selfie, Frost dutifully complied with the request from his official Twitter account. He later stated that he “only did so ironically, you know, because who still watches the Oscars in any other way?” The following day, the paper’s executive editor, Charles Cain, terminated Frost, noting that by retweeting Ellen’s selfie, he had endorsed it, thereby making a mockery of the paper’s “removed – and bemused – detachment from that which we cover.” Frost’s Twitter account was closely associated with and used to promote his work at The New Public News, and his Twitter biography identified him as the publication’s entertainment editor. However, the last sentence of his Twitter biography read: “Retweets ≠ endorsements.” See In re Application of the U.S. for an Order Pursuant to 18 U.S.C. |2703(d), 830 F.Supp.2d 114, 118 (E.D. Va. 2011) (“In addition to posting their own tweets, users may send messages to a single user (‘direct messages’) or repost other users’ tweets (‘retweet’)”).

For those who might not be familiar with Twitter, that caveat is invoked by Twitter users, primarily reporters, to preserve some semblance of journalistic objectivity.

Almost immediately after his firing, Frost retained an attorney and filed a lawsuit alleging wrongful termination in violation of public policy, intentional infliction of emotional distress, and the novel alienation of reputation cause of action (based on Frost’s belief that the paper’s characterizations of his actions had made him “seem uncool,” thereby depriving him of the benefits of his carefully constructed facade.). For its part, the defendant answered, asserting various affirmative defenses, but relying principally on the notion that Frost’s retweet was, in fact, an endorsement and inconsistent with the paper’s editorial philosophy. The parties submitted cross motions for summary judgment and a hearing was held early last week. (When asked about the great speed of this litigation, which went from the filing of a petition all the way to a summary judgment hearing in a matter of weeks, both parties replied that celerity was necessary to resolve the dispute before coverage of the twentieth anniversary of the death of Kurt Cobain could begin.).

In an affidavit submitted with his motion for summary judgment, Frost presented evidence of a storied career in journalism, which began a decade ago as a cub reporter for the Hill Valley Telegraph and a brief stint at the music desk of the New York Inquirer. He chronicled his long history of film and record reviews and noted that he always made certain to disdain a once subversive artist or director just at the precise moment he or she verged on mainstream success. Cain, in his own affidavit, noted that promoting the “commercial villains of Hollywood” via retweet was a “cardinal sin of the alt-newsweekly” and that the only commentary required of the Oscars this year was “the expression of woe at the death of Philip Seymour Hoffman.” Cain concluded: “When it comes to preserving our publications indie street cred, we simply cannot permit a managerial level employee to foster good will for or approval of the antics of mainstream Hollywood actors.” (Despite Cain’s affidavit testimony, Frost’s lawyer noted at the hearing that Cain is a big fan of “House of Cards,” featuring Kevin Spacey, who is prominently featured in the photograph which was the subject of the retweet in question. “[Cain] binge watched that show the second it was uploaded to Netflix,” Frost’s lawyer claimed.).

The trial court sided with the newspaper employer.  In its order granting summary judgment for the defendant, the trial court noted that the central issue in the case was the “status of the retweet.” Relying in part on Texas Rule of Evidence 801(e)(2), which provides that a statement is not hearsay if it is “offered against a party and is a statement which the party has manifested an adoption or belief in its truth,” the trial referenced, by analogy, the long tradition in the courts of finding that another’s statement was adopted by the declarant. He also turned to the plain meaning of the word “retweet,” and in so doing, examined the dictionary definitions of certain terms:

Webster’s Dictionary defines “tweet” as “a chirping noise,” while Dictionary.com tells us that the prefix “re-” “occur[s] originally in loanwords from Latin, [and is] used with the meaning ‘again’ or ‘again and again’ to indicate repetition . . . .” By retweeting the tweet of Ms. Degeneres, Plaintiff promoted her statement “again,” thereby adopting it as his own and rendering his purported disclaimer ineffective. Once Plaintiff formally adopted a statement which stood in stark contrast to the editorial mission of his employer, the Defendant was empowered to act and terminate his employment. Under the facts of this case, the termination was not, and could not be, in violation of Texas public policy. See Lovecraft v. Zuckerburg, 645 S.W.3d 173, 175 (Tex. App. – Austin 2011, pet. denied) (noting that once a Facebook user “likes” a status, comment, or photograph on Facebook, said user is estopped from contending that he or she dislikes it); In re: Friendster Litig., 567 F. Supp. 2d. 13 (D.S.C. 2004) ( “One is bound by one’s admissions on social media. Always.”); Cf. Appian Way, Co. v. Caecillius, Inc., 143 S.W.3d 521, 525 (Tex. App. – Houston [14th Dist.] 1997, no pet. h.) (noting that in cases involving the interpretation of Latin prefixes greater weight is always given to the party defending the claims at issue). As for Plaintiff’s argument that his Twitter biography rebutted any presumption of endorsement, the court need only look to the Texas Civil Practices & Remedies Code, which expressly states that any purported liability waiver containing the “≠” symbol is void under Texas law. See Tex. Civ. Prac & Rem. Code § 175.001, et. seq. Thus, we are forced to construe the Twitter biography as if there was no such attempt at waiver.

The Plaintiff has already announced his plan to appeal, and his attorney contends that they may petition the intermediate courts for a writ of mandamus to ensure that Frost returns to work and oversees any Cobain anniversary coverage.

The Plaintiff was represented by the Beaumont, Texas office of Goodman, Lieber, Kurtzberg & Holliway, L.L.P., while the defendant was represented by the Houston office of Gage Whitney Pace, L.L.P.

North Carolina Court Declares Harlem Shake “Over,” Enjoins YouTube From Accepting Further Videos Depicting Same

This morning, a superior court judge in Wyatt County, North Carolina granted a citizen’s request for a declaration that the Harlem Shake was “over as a meme” and issued a corresponding injunction prohibiting YouTube from accepting further videos depicting or otherwise seeking to capitalize upon the phenomena.  See Yorke v. YouTube, LLC, et. al., No. 2013-CVS-20213 (N.C. Sup. Ct. April 1, 2013).

This is big news.

Filed in mid-March by North Carolina resident Robert Yorke, the complaint sought a declaration that the “Harlem Shake is, and of right ought to be, over and done as a meme” and requested injunctive relief to facilitate the declaration.  The Plaintiff, a self professed “social media scholar” living in Western North Carolina, found himself irked by the increasing deluge of “Harlem Shake” videos he encountered across the web. In an affidavit accompanying the motion, Mr. Yorke complained that he could not access Facebook, Twitter, Orkut, or even Friendster, without seeing at least two “Harlem Shake” parody videos.  Claiming that the ubiquitous meme caused him personal injury, “an unyielding ennui,” and business interruption, he also seeks money damages and class certification. He conceded that the meme could, for at least some initial period of time exist and begin to wither away, but argued that time had long since passed.

A hearing on the request for declaratory relief and the accompanying motion for temporary injunction was conducted last week.  This morning, the court issued its first order in the case granting the Plaintiff’s request for the aforementioned equitable relief.

Citing Wikipedia, the court defined the “Harlem Shake” as follows:

The videos usually last about 30 seconds and feature part of the 2012 song “Harlem Shake” by American electronic musician Baauer. Baauer’s song starts with a 15 seconds intro, a bass drop, then 15 seconds with the bass, and a lion roar at the end of the first 30 seconds. Usually, a video begins with one person (often helmeted or masked) dancing to the song alone for 15 seconds, surrounded by other people not paying attention or seemingly unaware of the dancing individual. When the bass drops, the video cuts to the entire crowd doing a crazy convulsive dance for the rest of the video. The dancing style should not be confused with the original Harlem Shake dance. Additionally, in the second half of the video, people often wear a minimum of clothes or crazy outfits or costumes while wielding strange props.

(The court also apparently cribbed a bit from this article from The Atlantic by Kevin Ashton in reciting the history of the meme.).

Noting a state’s compelling interest in the “orderly processing and disposal of cultural fads,” the court invoked its inherent power in granting the request. In so doing, the court relied heavily on the American Law Institute’s Restatement (2d) of Memes, which provides:

Memes are, by their very nature, ephemeral. The accelerated pace of digital culture demands that certain Internet fads be summarily dismissed to make way for the next viral video or concept. However, as initially popular memes continue to permeate the outer reaches of Internet culture, the initial perpetrators and early adopters of such a meme will grow increasingly more weary of them. Accordingly, formal judicial rejection thereof is sometimes appropriate when the meme outstays its welcome. Although litigation surrounding the evolution of a meme is usually inappropriate, a court may rely on its inherent power to steward a stale meme more quickly to its inevitable demise.

Restatement (2d) of Memes § 135 (2012); see also In re Gangnam Style Litig., No. 12191975, MDL–3500 (E.D. Tex. January 29, 2013) (noting “short lived” nature of memes and creating three pronged test to determine appropriateness of judicial intervention in same).

Noting that North Carolina had not yet adopted § 135 of the Restatement, attorneys for YouTube argued against the injunction, noting that the matter was “nonjusticiable” in the courts and that a legislative solution would be more appropriate under the circumstances.  In re: Morrissey Concert Cancellation Litig., 872 F.3d 606, 615 (D. Colo. 2013) (finding that the court’s could not fashion a remedy to prevent the British singer from canceling future concerts as such an order would be “futile, fruitless, and without any hope of earning obedience,” and thus, the issue was more apt to be addressed by the legislative branch).  In advancing this argument, YouTube’s counsel directed the court’s attention to the recent Anti-Rickrolling Statute adopted by Texas State Legislature.  See Tex. Civ. Prac. & Rem. Code Sec. 174.001, et. seq (prohibiting any and all attempts within the state to fool, deceive, or otherwise trick a person into viewing a video featuring and/or otherwise depicting the singer Rick Astley).  When the court rejected that argument from the bench, counsel for YouTube noted that the meme was “already dying an albeit slow death” and the parties “need only await its natural end.” Rejecting that contention as a “backwards mootness argument,” the Court proceeded to grant the Plaintiff’s request from the bench.

Under the order, YouTube has five days to develop a system to prevent uploading of additional “Harlem Shake” videos.  The order also imposed on YouTube a duty to monitor its video library for pre-injunction videos which are “particularly lame” and remove them.

The court made a number of other rulings, as well. YouTube scored a minor victory when it successfully sought to exclude the proposed expert meme testimony of Antonie Dodson at the hearing.  Further, the court denied the motion to intervene filed by a series of  YouTube commenters on the grounds that they were vexatious litigants, which the court assumed, since the movants were YouTube commenters.

A hearing on YouTube’s motion for partial summary judgment on Mr. Yorke’s alienation of affection claim has been set for May 6.

We’ll continue to keep you apprised on this case as it develops.

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law

At an unusually scheduled Sunday morning meeting today, the American Bar Association’s Council of Legal Education and Admissions to the Bar voted not to approve Miskatonic University School of Law’s accreditation application. The administration of the Massachusetts-based law school, named for the nearby river of the same name, learned of the decision this morning via a two page facsimile. Following on the heels of the somewhat controversial accreditation denial of Tennessee’s Duncan School of Law, Miskatonic Law’s dean, Dr. Henry Armitage, III, expressed his disappointment at the decision and noted that the institution may challenge the ruling in the immediate future.

A centuries-old conservative institution steeped in tradition, Miskatonic Law is known for its significant dedication to historical (sometimes ancient) jurisprudence, the study of ecclesiastical law, and its extensive library collection.

“We have met all of the standards set forth by the ABA, and the academic credentials of our students and faculty are unequaled,” said Miskatonic Law’s Dean of Students Ward Phillips IV. “We believe this is an unnecessarily punitive act simply because our institution has declined to adopt a number of novel curricular norms which have permeated legal education for the past several decades.”

Contacted today by Abnormal Use, the Council of Legal Education and Admissions to the Bar had no official comment. However, some associated with the committee are speaking privately about the denial.

“Something just didn’t sit right with us about this place,” said one ABA Council member who requested anonymity because he was not authorized to speak publicly about the accreditation process.

According to reports, the ABA Council objected to the lack of faculty diversity at Miskatonic Law.  Said one ABA Council member, who also wished to remain anonymous:  “Most of the professors at Miskatonic attended Miskatonic, and the supermajority of them are children or grandchildren of prior Miskatonic Law professors.  We simply did not see an appropriate diversity of faculty credentials at this university.”

Said another Council representative: “As you know, we look to the make-up of an institution’s student body when making an accreditation determination. Although their grades and LSAT scores were more than adequate, Miskatonic Law’s incoming students did not have the typical backgrounds that you would expect in a more familiar law school setting.  There were almost no business or political science majors among the applicants and first year students; rather, the law school student body is composed of former archaeology, anthropology, and parapsychology majors. Quite frankly, many of them had studied unfamiliar disciplines which we had to research further to identify. There were a good many that had the prefix paleo- preceding the field of study, as well.”

“There are an unusual number of evening classes at Miskatonic,” said an ABA staffer familiar with accreditation proceedings.

Despite the denial, representatives of the ABA’s Council of Legal Education and Admissions to the Bar specifically commended Miskatonic Law’’s “impressive collection of old volumes” in its many libraries, a factor which would ordinarily earn an institution significant points in the accreditation process.  But apparently, according to one source, its library only contains “old and archaic volumes and had no access to modern legal databases.”

Armitage, whose grandfather once served as the University’s librarian, remarked, “Harvard is not punished for its early editions of Blackstone’s Commentaries, and that’s a much newer set of books than many we use on a daily basis.”

“We are a different type of law school, to be sure,” said Armitage. “Certainly, our students seek a more specialized understanding of a very remote subset of law. But we should not be punished and denied accreditation because of that. Despite the fact that their backgrounds may be different than those students seeking admission into a Harvard or Yale, our students love the craft of the law.”

Rumors of a lawsuit challenging the accreditation denial abound.  In addition to various antitrust causes of action, the administrator may assert a curious freedom of religion claim.

Armitage has scheduled a press conference to be held later today at the law school’s Asenath Waite Memorial Hall.

Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds

Although though we were perplexed to see a federal court address the issue, we can’t say we disagree with today’s opinion from the U.S. District Court for the Western District of South Carolina, which found that the three Star Wars prequels were “unreasonably dangerous and defective” as a matter of law. See Kurtz v. George Lucas, Lucasfilm Ltd., and Indus. Light & Magic, No. 2011-1138-THX (W.D.S.C. April 1, 2011). After hearing cross motions for summary judgment, the court denied the Lucas Defendants’ motion for summary judgment and granted the Plaintiff’s motion finding no genuine issue of material fact as to the films’ defects.

The facts were these: In 2007, Plaintiff Danny Kurtz found himself at his local video store in Seneca, South Carolina browsing through the racks of new DVDs. His young seven year old son, Milo, pleaded with his father to buy him some action movies. Dutifully acquiescing to the request, Plaintiff bought him the prequels: 1999′s The Phantom Menace, 2002′s Attack of the Clones, and 2005′s Revenge of Sith. At the time of the purchase, neither the Plaintiff nor his son had seen the films. (“Somehow, I made it through the last decade without seeing those movies,” the Plaintiff testified at his deposition, although he later acknowledged his familiarity with the films’ generally poor reviews.). Although the purchase was “against his better judgment,” he relented only because of the joy he felt his child might experience in being introduced to the Star Wars universe, a delight the Plaintiff recalled from his own youth in the early 1980s. After a marathon weekend viewing of all three prequels, the Plaintiff and his son experienced nausea, confusion, light-headnesses, shortness of breath, tinnitus, and a “foreboding sense of ennui.”

Plaintiff brought suit individually and on behalf of his minor son against George Lucas and several corporations, asserting various tort theories, including negligence and strict products liability. Plaintiff also asserted a novel “tortious interference with childhood memory” cause of action on his own behalf, arguing that the release of the prequels had destroyed his ability to reminisce his own younger days and his youthful enjoyment of popular culture. (The alienation of affection claims of Plaintiff’s spouse, Carrie, were settled for an undisclosed sum.).

In their joint answer, the Lucas Defendants asserted the affirmative defenses of contributory negligence, assumption of risk, unclean hands, and equitable estoppel, essentially arguing that Plaintiff knew or should have known of the films’ lack of artistic merit and was thus barred from asserting any tort claims based upon his viewing of same. See In re: The Last Airbender, 523 F. Supp. 2d. 147 (N.D. Ga. 2010); In re: Ishtar Litig., 111 F.2d 102 (9th Cir. 1988).

In denying the defense motion for summary judgment, the court rejected the Defendants’ reliance on In re: Bob Dylan Live Performance Litig., 867 F.3d 539 (S.D.N.Y 2006), in which that court held that a once talented artist can devolve and become so well known in the community as a disappointment that damages are not recoverable as a matter of law. See also Shyamalan v. United States, 543 F.3d 129 (6th Cir. 2008). In distinguishing Dylan, the South Carolina court observed that while Bob Dylan’s decline had been gradual over a period of years, the decay of the Star Wars franchise was sudden and immediate (and preceded by nearly two decades of engendered good will prior to the prequels’ release in 1999).

The court then granted the Plaintiff’s motion for summary judgment, noting in a single paragraph order that the films were “unreasonably dangerous and defective as a matter of law.”

The case is also notable for a few other procedural rulings made by the court:

  • The court quashed the Defendants’ deposition subpoena to actress Natalie Portman, who the court decided had “already suffered enough.”

  • Finding the issue nonjusticiable and incapable of resolution by the judiciary, the court denied Plaintiff’s request to issue a declaration that Han Solo had, in fact, shot first.
  • Earlier in the case, the court had dismissed Plaintiff’s state law Unfair Trade Practices Act claim which was premised upon the casting of Hayden Christensen as Anakin Skywalker in the second and third prequels. In so doing, the court noted that the Unfair Trade Practices Act claim was merely an attempt to assert an improper negligent casting cause of action, a claim which the South Carolina Supreme Court had only last year abrogated in the Watchmen litigation. See Moore v. Snyder, 572 S.E.2d 492, 652 S.C. 19 (2009).
  • The court denied the Defendants’ request to consolidate the case with a similar North Carolina matter arising from a Charlotte family’s viewing of 2008′s Indiana Jones and the Kingdom of the Crystal Skull.

Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds

We here at Abnormal Use are puzzled and alarmed at a very recent opinion by the Fifteenth Court of Appeals in Texas, which was released this very morning and quickly forwarded to our inbox by a reader in Anarene, Texas. In that case, the Court of Appeals affirmed a ruling by the trial court, which had permitted an expert to opine that a candy bar consumed by the Plaintiff was not, in fact, satisfactory, and was therefore, unreasonably dangerous and defective. This opinion’s rationale, if adopted elsewhere, has the potential to convert untasty sweets into causes of action to be wielded against unsuspecting candy manufacturers.

The case at issue is Arthur Slugworth v. Mars, Inc., — S.W.3d —, No. 10-48-15162342 (Tex. App. – Corsicana, April 1, 2010, no pet. h.). Slugworth, the Plaintiff, purchased a Snickers bar at a retail store in Texas after a harrowing road trip. He bit into the candy and later testified that he was “rather alarmed that the Snickers bar did not, as promised by advertisements, satisfy me.” As a result of the ingestion of the allegedly unsatisfactory candy bar, Plaintiff suffered extended bouts of melancholy, coupled with an occasional conflagration of ennui. He brought suit in state court under various theories of recovery, including strict products liability, intentional infliction of emotional distress, alienation of affection, and the offensive use of laches. The Plaintiff offered the expert testimony of one Violet Beauregarde, a candy expert, while the defense invoked “the nougat defense,” based on the old English common law rule that products containing a certain combination of sugar, honey, and hazelnuts cannot be subject to strict liability claims.

The jury found the candy bar to be unreasonably dangerous and defective and awarded the Plaintiff $2.13 million dollars in actual damages and twice that amount in punitives. The verdict was largely based on the testimony of Beauregarde, who opined that to a reasonable degree of confectionery certainty, the candy bar at issue was “yucky.” Mars, for its part, appealed the verdict, arguing the trial court erred by qualifying Beauregarde as an expert under E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), in which Texas adopted its own version of Daubert.

The appellate court rejected Mars’ first point of error that Beauregarde was not sufficiently credentialed to testify as an expert. Although Mars sought to exclude her based on her only having attended Greendale Community College and not some august scientific institution, the court noted that experience in the field was as important as a degree. In so doing, the court pointed to Beauregarde’s testimony that she had “consumed, and enjoyed, candy for many years, as far back as her childhood, and had never had an unpleasant experience with sweets.”

The court also dismissed Mars’ second point of error, in which it argued that Beauregarde’s testimony was unreliable. Beauregarde, Mars argued, had not tasted the particular candy bar at issue but had instead sampled an exemplar bar. Further, Mars pointed to the fact that Beauregarde cited to no peer-reviewed articles or epidemiological studies which established that a Snickers bar was incapable of satisfying a consumer. However, despite these arguments, the court found Beauregarde had indeed satisfied the reliability criteria.

The trial court had also thwarted Mars’ attempt at impeachment of Beauregarde over a past indiscretion involving carob, but the appellate court found Mars had waived that issue.

Watchdog groups in Texas are closely watching this case as it makes its way to the Texas Supreme Court, which in the past has offered some conflicting jurisprudence in this area, including Wonka v. Wonka, 472 S.W.3d 1012 (Tex. 2008) and In re: Bertie Bott’s Every Flavour Beans, 388 S.W.3d 999 (Tex. 2006). What happens next, no one can predict.

Joseph Throckmorton, outside counsel for the candy manufacturer, sighed when reached on his cell phone early this morning for a comment. He indicated that he has no further plans to engage in confectionary cases and now plans to dedicate his practice to the Soylent Green litigation, in which it is alleged that the foodstuff at issue contains certain undisclosed ingredients.