A self-described grassroots journalist had her defamation case over hand gestures dismissed, because the federal judge ruled she failed to show evidence of actual malice – the standard that public figures must meet in such lawsuits. 

Cassandra Fairbanks sued another journalist Emma Roller, who at the time worked for Fusion, after Roller tweeted that Fairbanks and another journalist made a white power gesture in the White House press room.  Fairbanks and the other journalist made the “okay” hand gesture.  Some associate that hand gesture as part of the white power movement. 

Roller retweeted Fairbanks’ photo with the caption: “just two people doing a white power hand gesture in the White House.”  After a little more back and forth on Twitter, Fairbanks sued Roller in federal court in the District of Columbia, alleging defamation.

Roller filed a motion to dismiss, contending that she merely had uttered an opinion rather than a statement of fact when tweeting about the gesture.

On June 6, 2018, U.S. District Court Judge Trevor N. McFadden dismissed the defamation suit in Fairbanks v. Roller but not because of the opinion-based defense.  Instead, McFadden dismissed the suit because Fairbanks had failed to show that Roller had acted with actual malice – the standard that public figures must meet.    

The U.S. Supreme Court defined actual malice in New York Times Co. v. Sullivan (1964) as acting, knowing a statement is false, or acting in reckless disregard as to whether a statement is true or false.   

“Especially given the public debate about the ‘okay’ hand gesture at the time of Ms. Roller’s tweet, Ms. Fairbanks’ allegations do not provide clear and convincing evidence of actual malice,” the judge wrote. “Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller — whether because the gesture was actually offensive or because they would think that it was offensive — not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions.”

The judge concluded by noting that other countries criminalize the use of certain hand gestures associated with hate speech but contrasted that with the United States: “But in America, the First Amendment’s commitment to public debate that is ‘uninhibited, robust, and wide-open,’ offers broad protections to those who make these gestures and those who accuse public figures of making them.”

David L. Hudson, Jr. is a First Amendment scholar and the author of Documents Decoded: Freedom of Speech (ABC-CLIO, 2017) and First Amendment: Freedom of Speech (Thomson Reuters, 2012).