Today, in Bauer v. Brinkman, No. 20-0563, the Iowa Supreme Court unanimously upheld a grant of summary judgment in favor of Mr. Bradley Brinkman who was sued by Richard Bauer, a local landlord. Bauer sued Brinkman after Brinkman posted on Facebook, among other things, that Bauer was a “slumlord” in the community. Many people saw the post. Bauer disagreed that he was a slumlord, and sued Brinkman for defamation.
In district court, both parties moved for summary judgment on the question of whether calling someone a “slumlord” is a statement of opinion or statement of fact. If something is an opinion, it usually receives full First Amendment protection, meaning you can’t be sued for it. If something is a statement of fact, it only receives protection if it is truthful and not misleading. Untruthful or misleading statements can subject you to suit for defamation. The district court sided with Brinkman and held that calling someone a “slumlord” was protected First Amendment opinion, and therefore, Bauer couldn’t successfully sue Brinkman for it.
Bauer appealed. The Iowa Supreme Court, with Justice Christensen writing for the majority, affirmed the grant of summary judgment and held that “slumlord” was a statement of opinion. Thus, Bauer could not sue Brinkman for it.
Justice Christensen reasoned that the “dispositive question” in the case is whether “a reasonable reader could conclude that Brinkman’s Facebook comment implied a factual statement…”. While the Court ultimately reached the right result: that the statement was protected speech, we aren’t 100% sure we agree with the phraseology of the standard set forth because it potentially subjects speech to an objective listener test only, potentially lessening protection for First Amendment speakers depending upon who is determined to be in the class of objective listeners. By focusing on the listener’s understanding rather than the speaker’s subjective intent, we potentially chill free expression. Moreover, an objective listener test weeds out protection for extreme points of view, another potential chilling effect of the Court’s phraseology.
A more protective way to have phrased the test would have been: “Whether a reasonable person could conclude that Brinkman’s Facebook comment implied an opinion” and if so, then it is protected regardless of whether other people might have understood it to be a factual assertion. By phrasing the test as whether it could be viewed as fact, and then not protecting it, as opposed to examining whether it could be viewed as opinion, and then protecting it, it erroneously shifts the burden of proof to the speaker, rather than placing the burden where it rightfully belongs, which is on the person trying to restrict or punish speech, i.e. on Bauer.
The Iowa Supreme Court makes it a point in the opinion to let people know that just because everyone has an opinion on social media sites like Facebook, Twitter, Instagram and the like, it doesn’t mean everything you say on social media is protected by the First Amendment. You still have to watch what you say, and how you say it. In every case, truth still remains an absolute defense. A good rule of thumb is that if you aren’t sure whether what you are saying is true is actually true then it is probably better to say nothing at all. This harkens back to lessons of childhood: if you don’t have anything nice to say, don’t say anything at all.
To read Bauer v. Brinkman, click here: https://www.iowacourts.gov/courtcases/10875/embed/SupremeCourtOpinion