The suit focused on a series of tweets written by Emma Roller, a political reporter for the website Splinter News, in response to a photograph published online by grassroots activist and journalist Cassandra Fairbanks. The photograph depicted Fairbanks and a friend making a hand gesture while visiting the White House press briefing room in April 2017.
Roller shared the photograph on her own account and added commentary suggesting the gesture was a symbol invoked by white supremacists. In a now-deleted tweet, Roller wrote that the photo showed “two people doing a white power hand gesture in the White House.”
In her lawsuit, Fairbanks claimed that the hand gesture was an “okay” symbol, although she acknowledged that the photograph was intended to “troll” online viewers into thinking otherwise.
Two months after the tweets were published, Fairbanks sued Roller in federal court alleging defamation of character. At the time, Fairbanks worked for Sputnik News, an English-language news outlet bankrolled by the Russian government. Roller was employed as a political reporter for Fusion, a Disney-backed millennial-focused digital media portal and television channel. Both Fairbanks and Roller have since left for other jobs.
Roller responded to the lawsuit by saying in court filings that the hand gesture in question was “ambiguous” and that she was stating an opinion, not a fact, when she claimed it was associated with white supremacy.
On Wednesday, a federal judge determined Roller’s interpretation of the gesture was not ambiguous and that she failed to satisfy several requirements showing her tweets contained unactionable commentary. But the judge dismissed Fairbanks’ suit against Roller because Fairbanks failed to state and actionable claim in her lawsuit and did not meet the high burden necessary to support a defamation claim given her position as a public figure. The judge also said it was likely Fairbanks knew her photograph would trigger a reaction from people online based on how she responded to several supporters and critics after her initial tweet.
“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,” District Judge Trevor McFadden wrote. “In America, the First Amendment’s commitment to a 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.”
As would be expected, both women responded to the dismissal by posting their reactions on Twitter.
In a tweet on Wednesday, Fairbanks said she felt most understood that the photograph was intended to provoke a response from her critics and that she was not making an obscene gesture during her visit to the White House.
“I feel like most realize that’s not actually a symbol for white power and that I was trolling in the sense that we were trump supporters invading their space,” Fairbanks wrote. “So whatever.”
Roller responded to the dismissal by tweeting the word “welp” and sharing a link to a BuzzFeed reporter’s posting on the case. She later tweeted that she had “shotgunned a beer.”