NBA Ref Cries Foul, Sues AP Reporter for Twitter Defamation

Over at Legal Blog Watch, Bruce Carton mentions a Minneapolis-St. Paul Business Journal news article about a “Twitter” defamation lawsuit filed by NBA referee Bill Spooner against Associated Press writer (and Minnesota Timberwolves reporter) Jon Krawczynski:

Spooner alleges that during a Jan. 24 game between the T’wolves and the Houston Rockets, he called a foul on a Minnesota player that Minnesota coach Kurt Rambis vehemently disagreed with. Spooner allegedly promised to review the call at the half, but Rambis, as the Journal puts it, “asked him how he would get the points back.” According to Spooner, he did not respond to this question but according to the Krawczynski tweet in question, Spooner “ told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks.” [Ed. corrected link]

Spooner alleges that the tweet is defamatory and accuses him of game-fixing. He has demanded that the tweet be unpublished and retracted and seeks “more than $75,000” in damages. According to the Business Journal article, The AP maintains that the facts were accurately reported.”

A copy of the complaint in Spooner v. The Associated Press et al. (U.S. Dist. Ct-Minneapolis-Court File No.0:11-cv-00642-JRT -JJK)  is available  here (via the original news story by Jim Hammerand, Staff Writer, Minneapolis-St. Paul Business Journal).

To date Krawczynski allegedly defamatory tweet has not been deleted from his Twitter stream (and at the time of this posting has been retweeted 25 times):

In the complaint preamble, Spooner’s defamation claim appears focused on the damage to his professional reputation in light of the recent betting scandal involving former NBA referee, Tim Donaghy who plead guilty to two federal charges relating to an FBI investigation that Donaghy bet on games that he officiated during his last two seasons and that he made calls affecting the point spread in those games:

At paragraph 24 of the complaint, Spooner alleges that “[t]hroughout the current professional basketball season Defendant Krawczynski has made a theme of his reporting persistent criticism of NBA officiating”. This much is true, as Krawczynski tweeted the following subsequently:

Not unlike Canadian and English defamation law, American defamation law recognizes the doctrine of defamation per se. As the Citizen Media Law Project notes:

“Defamation Per Se

Some statements of fact are so egregious that they will always be considered defamatory. Such statements are typically referred to as defamation “per se.” These types of statements are assumed to harm the plaintiff’s reputation, without further need to prove that harm. Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:

  • a criminal offense;
  • a loathsome disease;
  • matter incompatible with his business, trade, profession, or office; or
  • serious sexual misconduct.

See Restatement (2d) of Torts, §§ 570-574. Keep in mind that each state decides what is required to establish defamation and what defenses are available, so you should review your state’s specific law in the State Law: Defamation section of this guide for more information.

It is important to remember that truth is an absolute defense to defamation, including per se defamation. If the statement is true, it cannot be defamatory. For more information see the section on Substantial Truth.”

As the Minnesota Supreme Court held in Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985).:

“We hold that a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false. The conduct of defamation defendants will be judged on whether the conduct was that of a reasonable person under the circumstances. Restatement (Second) of Torts, s.580B comment g (1976). In resolving that issue, we accept the Restatement position that “customs and practices within the profession are relevant in applying negligence standard, which is, to a substantial degree, set by the profession itself, though custom is not controlling.” Id.”
Under the First Amendment, where the plaintiff is a public office or public figure (presumably an NBA referee is the latter), the plaintiff must prove actual malice or reckless disregard of the truth: New York Times v. Sullivan, 376 U.S. 254 (1964), which allows the media defendants (both the AP and its employee,) to prove  good faith intent and efforts as a defence. Also, it is arguable that Krawczynski’s criticism of the relative quality of NBA officiating is a matter of public concern, which under the First Amendment also requires proof of actual malice or reckless disregard of the truth, even if the plaintiff is not a public figure. Gertz v. Robert Welch, 418 U.S. 323, 349-50 (1974); Hepps, 475 U.S. at 775.  Anticipating this public figure defense, paragraphs 17-21 of the complaint read:

It’s likely that the defendants will also affirmatively plead truth (justitification) and opinion, as well.

Finally, the Streisand Effect may be in play here.  Whether or not Krawczynski’s tweet constitutes a libellous statement will be for a jury to decide. At this stage, it’s far from a slam dunk or even an uncontested lay-up. but, in my opinion, it might be best for AP to quietly tell their roving reporter to not seek out interviews while the litigation is pending:

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