Merely Retweeting Link to Old Article Doesn’t Restart Statute of Limitations

Starting at Crosswhite v. Reuters News & Media, Inc.Today, Judge Elizabeth K. Dillon (W.D.) ruled in favor of the petition. Va.):

Benjamin Crosswhite is a Lynchburg-based personal trainer. Crosswhite trained Jerry Falwell, Jr., who was the ex-president of Liberty University, as well as his wife Becki Falwell.

Many public controversy surround Mr. Falwell in 2019 and 2020. On August 27, 2019, Reuters published a story titled “Exclusive Falwell Steered Liberty University Land Deal Benefiting His Personal Trainer.” It covered transactions in real estate between Liberty University, Crosswhite and which Falwell had approved. A URL to this article was posted by Reuters via its Twitter account. Aram Roston, one of the author, retweeted and shared the link.

Reuters published an article titled “Exclusive” on September 12, 2019. It was entitled: Falwell Blames Liberty Student for being ‘Retarded’, and Police Chief for being ‘Halfwit’ in Emails. The article focused on Falwell’s habit of ridiculing Liberty University students, staff and faculty. Falwell was also mentioned in the article as having been “disappointed by recent stories regarding his private dealings, his stewardship and Liberty” including his role in “directing a $1.2million piece of university property to his personal trainer.” On August 27, Reuters reported how Falwell had helped his young personal trainer, Benjamin Crosswhite.” Roston and Reuters both tweeted a link.

Crosswhite brought this action against Falwell on March 25, 2021. He claimed defamation. The complaint focuses on statements made in the articles regarding Falwell’s favored treatment of Crosswhite….

Virginia law stipulates that claims for defamation must not be made within one (1) year after the cause of action has accrued. An alleged defamatory statement published on or after the commencement of the defamation cause of action becomes effective. … Crosswhite’s claims … [were thus]The statute of limitations bars them.

Crosswhite claims that Crosswhite’s claims are within the limitations period because of various hyperlinks and retweets. Similar arguments were addressed by the Fourth Circuit in recent years. Lokhova v. Halper (4th Cir. 2021). {“Plaintiff’s Counsel in This Case was Plaintiff’s Counsel in Lokhova [Steven Biss].} The Court stated that Virginia will follow the single publication rule, pursuant to the which the “subsequent distribution” of defamatory statements may increase plaintiffs’ compensable damages. However, the distribution afterward “doesn’t create separate actions nor start the statute-of-limitations running anew.”

The argument that third-party tweets or hyperlinks are exempt from claims under the republication doctrine was rejected by the court. The court supported caselaw that said linking to articles should not be considered republication. A hyperlink that is only a link to an article does not constitute republication. This contradicts the public policy which supports the single publication rule. Concerning retweets: The court ruled that “each tweet by a third party containing an article would constitute a republication.”

Crosswhite asks for the court’s attention to Paragraph 23 of Crosswhite’s complaint. This refers to a tweet made by Lawrence Delevingne on August 24, 2020. The tweet states: “Other great reporting on Falwell & Liberty U. by @AramRoston @jschney.” Crosswhite says that this tweet does more than just provide a link to the 2019 articles. Crosswhite is pictured in 2020 with the 2019 articles and a new article on the Fallwells’ relationship with “pool boys”. {Check out (“Business partner of Falwells says affair with evangelical power couple spanned seven years”).} Other twitter accounts are also included in the 2020 tweet, such as @Reuters and @AramRoston. Plaintiffs claim that this further demonstrates an intention to republish older content for new audiences.

The Fourth Circuit rejected these arguments. Lokhova. {Reuters points out that Crosswhite’s Opposition Brief pages 6-8 are copied and pasted directly from the brief. Lokhova.} In LokhovaPlaintiff argued that the “whether hyperlink in question contained additional content that would be considered republication” question should not be dismissed. However, because the link to the original article was located in a subsequent article, the court ruled that the hyperlink did not serve as a direct connection between the article and a new reader. Similar to the case in this instance, the 2020 tweet regarding the 2019 articles was used as a reference by Reuters’ current audience. The subsequent publication did not add or alter the original publication…. “[A]Because it does not change the content of the original publication, link is similar to releasing an additional copy. … The 2020 tweet does not contain the words “pool boy,” nor does it include any other terms to add to the original article or suggest in any way that plaintiff was the “pool boy.” It merely states, “Other great reporting on Falwell & Liberty U. by @AramRoston @jschney.” {The tweet also did not “tag” the @Reuters or @specialreports accounts; rather, it replied to them.}

Crosswhite relies on tweets of third parties (i.e. tweets made by people not affiliated with Reuters) and the Fourth Circuit found, as previously noted, that these tweets don’t constitute republication. The court also rejected Crosswhite’s argument based upon the Virginia Supreme Court decision. Weaver v. Beneficial Finance Co. (Va. 1957). “Ignoring that moment.” Weaver The issue of this matter was settled over 60-years ago. This is well before the advent of the Internet. Weaver itself because there the court recognized a distinction when applying republication rules ‘to newspapers and magazines’ as opposed to individuals …. We conclude. Weaver Does not require third-party tweets to be considered republication. Lokhova.

Crosswhite also provides additional authority for his republication theory by citing a case from the Eighth Circuit. Nunes v. Lizza (8th Cir. 2021). In NunesAccording to court, the claim of defamation was made by the plaintiff based on “a tweet of a direct link to an original article”. The complaint said that Lizza had intended to “adequately allege that she wanted to reach and even reached new audiences” through publishing a tweet about Nunes with a link.  The court observed that Lokhova These and other cases show that linking to original publications does not necessarily constitute republication.

As an example, let’s say that if Nunes This is not compatible with LokhovaThe court should follow the Fourth Circuit holdings in Lokhova. However, Nunes It is distinctive in every event. In NunesThe issue here was whether the defendant had acted with “actual malice” by publishing the article again on Twitter after the lawsuit was filed. It was ruled that

Lizza received notice that the article contained a defamatory inference due to this lawsuit. According to the complaint, he presented the article to a new audience and encouraged readers to read his “strange tale” about immigration policy. He also promoted that he had a story to tell. In these circumstances, Lizza is alleged to have republished his article knowing full well that Congressman Denis O’Connor denied having knowledge of the undocumented farm labor and that he was not part in any scheme to hide it.

So, you can tweet this Nunes More than “a mere hyperlink”, it included additional statements that could have defamatory consequences. {The full tweet read: “I saw that Devin Nunes was in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.”} Not so the August 2020 tweet by Lawrence Delevingne, which merely refers to the article as containing “Other great reporting on Falwell & Liberty U.”