Libel and Allegations of “TERF”ness, DMCA Abuse, and Perjury
[1.] An excerpt from the long decision in Braun v. Day, decided by Judge Mary Rowland (N.D. Ill.) Friday:
[Plaintiff] Propson is a resident of the state of Wisconsin and a licensed mortician. Propson operates at least one social media account under the handle “Lauren the Mortician,” where she posts about matters related to her profession. [Defendant] Carter is likewise a social media personality and a self-described “life coach villain” who operates under the handle “@CaffinatedKitti.” Carter is a citizen of Georgia.
On or around October 24, 2023, Carter published a video on TikTok where she accused Propson of being transphobic and a “TERF.” Specifically, Carter said “Lauren the Mortician is a TERF, I have receipts, I have deets, and you should just go ahead and take a seat.” “TERF” is an acronym meaning “trans- exclusionary radical feminist” that at least one dictionary defines as “an advocate of radical feminism who does not believe that transgender people’s gender identities are legitimate, and who is hostile to the inclusion of trans-women in the feminist movement.” “Receipts” and “deets” are slang words used to mean proof or evidence. Carter further explained that the “receipts” and/or “deets” referenced were evidence of Propson liking “incredibly transphobic and hateful rhetoric and content.” Carter later explained that she made the post because people were confusing her for Propson.
Plaintiffs allege that because of Propson’s online following, the allegations of her transphobia “spread quickly throughout the internet and became the source of multiple posts, comments, and blog articles.” The allegations lowered her standing in the community, dissuaded people “in the content creation community” from associating with her, caused her to lose followers, and caused her to lose a contract with a travel documentary channel, various sponsorships, and a possible contract for a podcast deal….
The court concluded that these allegations were constitutionally protected opinion:
Carter allegedly stated that Propson is a “TERF,” or trans-exclusionary radical feminist, and that she is transphobic. Propson alleges that “[b]eing called transphobic is akin to being called a bigot or a racist.” The problem for Propson is that courts universally recognize that allegations of racism or bigotry are not actionable in a defamation claim because they express subjective opinions that cannot be proven true or false. See, e.g., Stevens v. Tillman (7th Cir. 1988) (“In daily life ‘racist’ is hurled about so indiscriminately that it is no more than a verbal slap in the face … [i]t is not actionable unless it implies the existence of undisclosed, defamatory facts.”); Tannous v. Cabrini Univ. (E.D. Pa. 2023) (“A statement characterizing someone as racist, like a non-actionable opinion, is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation.”); Garrard v. Charleston Cnty. School District (S.C. Ct. App. 2019), aff’d in part & vacated in part (2023) (claims in a newspaper editorial that a high school football coach and his players were “racist douchebags” were not actionable because they were expressions of opinion); Ward v. Zelikovsky (N.J. 1994) (defendant’s claim that plaintiffs “hate jews” was nonactionable name-c
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