Portia Boulger v. James Woods

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0030p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PORTIA A. BOULGER, ┐

Plaintiff-Appellant/Cross-Appellee, │

│

> Nos. 18-3170/3220

v. │

│

│

JAMES H. WOODS, │

Defendant-Appellee/Cross-Appellant. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:17-cv-00186—George C. Smith, District Judge.

Argued: October 16, 2018

Decided and Filed: February 27, 2019

Before: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Joseph E. Sandler, SANDLER REIFF LAMB ROSENSTEIN & BIRKENSTOCK,

P.C., Washington, D.C., for Appellant/Cross-Appellee. Patrick Kasson, REMINGER CO.,

L.P.A., Columbus, Ohio, for Appellee/Cross-Appellant. ON BRIEF: Joseph E. Sandler,

SANDLER REIFF LAMB ROSENSTEIN & BIRKENSTOCK, P.C., Washington, D.C.,

Nathaniel Zachary West, Columbus, Ohio, for Appellant/Cross-Appellee. Patrick Kasson, Kari

D. Hehmeyer, REMINGER CO., L.P.A., Columbus, Ohio, for Appellee/Cross-Appellant.

COLE, C.J., delivered the opinion of the court in which WHITE, J., joined, and

NALBANDIAN, J., joined in part. NALBANDIAN, J. (pp. 15–18), delivered a separate opinion

concurring in part and in the judgment.

Nos. 18-3170/3220 Boulger v. Woods Page 2

_________________

OPINION

_________________

COLE, Chief Judge. Portia Boulger filed an action for defamation and invasion of

privacy based upon a tweet by James Woods, a well-known movie actor and producer. The

district court denied Woods’s motion for summary judgment, due to Boulger’s lack of service,

but granted his motion for judgment on the pleadings, finding that the tweet was not an

actionable statement of fact under Ohio law. Boulger now appeals the grant of the motion for

judgment on the pleadings as to her defamation claim, and Woods cross-appeals the denial of his

motion for summary judgment. For the reasons that follow, we affirm.

I. BACKGROUND

On March 11, 2016, then-presidential candidate Donald Trump held a rally in Chicago,

Illinois. That evening, the Chicago Tribune newspaper posted a photograph on its Twitter

account of a woman at the rally, wearing a Trump T-shirt, and giving a Nazi salute—a salute

with her right hand raised straight up in the air. On March 12, 2016, Twitter user @voxday

posted the Nazi salute photograph, together with a photograph of Portia Boulger and a caption

identifying Boulger as an “Organizer (Women for Bernie).” (Def. Mot. for J. on the Pleadings,

R. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement,

“The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account.

It’s another media plant.” (Id.) Shortly thereafter, Woods tweeted the same two pictures, along

with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders

agitator/operative?” (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000

followers on Twitter.

That same day, March 12, 2016, multiple news outlets identified the woman in the Nazi

salute photograph as Birgitt Peterson, a Trump supporter residing in Yorkville, Illinois. Woods

did not delete his original tweet, but instead tweeted a follow-up: “Various followers have stated

that the Nazi Salute individual and the #Bernie campaign woman are NOT the same person.

#Chicago #Trump.” (Def. Mot. for J. on the Pleadings, R. 7, PageID 62.)

Nos. 18-3170/3220 Boulger v. Woods Page 3

On March 22, 2016, counsel for Boulger wrote to Woods’s attorney, asking that Woods

delete his tweet and issue a retraction and apology. Woods deleted the tweet the next day, and

posted three new tweets:

1. “I have an opportunity to clarify something I challenged immediately when it hit

Twitter. Portia A. Boulger was NOT the ‘Nazi salute lady.’”

2. “Ms. Boulder [sic] has reached out to me and asked me to use my many followers

to stop people from harassing her. I am more than happy to do so.”

3. “Though she supports @BernieSanders, I am happy to defend her from abuse. I

only wish his supporters would do the same for other candidates.”

(Comp., R. 1, PageID 5.)

In the eleven days between Woods’s initial tweet and the tweet’s deletion, Boulger

“received hundreds of obscene and threatening messages, including death threats,” as well as

numerous telephone calls. (Id. at 5–6.) Boulger stated that due to Woods’s tweet, she suffered

“severe emotional distress including sleeplessness, episodes of reasonable apprehension of

personal assault or attack, anxiety and depression.” (Id. at 8.)

Boulger subsequently filed the instant action against Woods on March 3, 2017, alleging

defamation and invasion of privacy under Ohio law. On June 1, 2017, Boulger filed a motion for

extension of time to complete service of process on Woods, arguing that, despite her best efforts,

she had been unable to serve Woods properly. The district court granted Boulger’s motion,

extending the service deadline to August 7, 2017.

Despite the extension, Woods filed an answer to the complaint on June 7, 2017, asserting,

inter alia, insufficient service of process and lack of personal jurisdiction (due to the lack of

service). The same day, Woods also filed a motion for judgment on the pleadings, arguing that

Boulger’s claim for defamation failed as a matter of law because the tweet at issue was a

question and not an actionable statement of fact. The next month, the parties filed a joint report

under Federal Rule of Civil Procedure 26(f), in which they recommended that “discovery be

stayed pending a Decision on the Motion for Judgment on the Pleadings.” (Rule 26(f) Report, R.

12, PageID 127.) Woods also noted in the Rule 26(f) report that he “contests personal

jurisdiction” and “has not been served.” (Id.)

Nos. 18-3170/3220 Boulger v. Woods Page 4

Boulger still failed to serve Woods timely. Accordingly, on August 15, 2017, Woods

filed a motion for summary judgment, or in the alternative, motion for dismissal, due to

Boulger’s failure to perfect service. The district court found, however, that Woods waived his

jurisdictional defenses through his conduct and therefore denied his motion for summary

judgment. But the court granted Woods’s motion for judgment on the pleadings, finding that

Woods’s tweet could be interpreted as a question and not a statement of fact, and that the tweet

was protected under Ohio’s innocent construction rule.

Boulger now appeals the decision on the merits, and Woods cross-appeals the

jurisdictional issue.

II. ANALYSIS

A. Jurisdiction

We must first decide whether we have jurisdiction to review the merits of Boulger’s

claim. In the absence of “proper service of process, consent, waiver, or forfeiture, a court may

not exercise personal jurisdiction over a named defendant.” King v. Taylor, 694 F.3d 650, 655

(6th Cir. 2012) (citations omitted). And without personal jurisdiction, a federal court is

“powerless to proceed to an adjudication.” Id. (quoting Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574, 584 (1999)).

It is undisputed that Woods was never properly served. In the district court, Boulger

sought to excuse her service failure, arguing that Woods waived his defenses in two ways:

(1) by failing to include the defenses in his motion for judgment on the pleadings and (2) through

his conduct. The district court rejected Boulger’s first argument, but found that Woods had

waived his ability to challenge service through his conduct.

We review a district court’s ruling on waiver for an abuse of discretion. King, 694 F.3d

at 659. “An abuse of discretion occurs if the district court relies on clearly erroneous findings of

fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a

conclusion, or makes a clear error of judgment.” Id. at 660 (quoting In re Whirlpool Corp.

Front-Loading Washer Prods. Liability Litig., 678 F.3d 409, 416 (6th Cir. 2012)).

Nos. 18-3170/3220 Boulger v. Woods Page 5

1. Waiver Through Failure to Include Defenses in Rule 12 Motion

Under the Federal Rules of Civil Procedure, a defendant who files a motion under Rule

12 and fails to raise the defense of insufficient service of process “waives” that defense. King,

694 F.3d at 656 (citing Fed. R. Civ. P. 12(b)(1), (g)(2), (h)(1)(A)). 1 A defendant cannot be

deemed to have waived defenses, however, that “were not . . . available at the time they could

first have been made.” Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981).

While Woods challenged the sufficiency of service in his answer, he acknowledges that

he failed to include the defense in his motion for judgment on the pleadings. But as Woods

notes, he filed his motion for judgment on the pleadings in June 2017, two months prior to the

service deadline. Accordingly, any argument made by Woods in June 2017 regarding

insufficient service of process would have been premature. See King, 694 F.3d at 661

(“[A] motion to dismiss on the basis of improper service made during the period for service may

properly be denied as premature.”). The district court was therefore correct in holding that

Woods did not waive his insufficient service of process and lack of personal jurisdiction defenses

by failing to include them in his motion for judgment on the pleadings because, at the time of

filing, the defenses were not yet available.

2. Waiver Through Conduct

“Even where a defendant properly preserves a Rule 12(b) defense by including it in an

answer”—as Woods did here—“he may forfeit the right to seek a ruling on the defense at a later

juncture through his conduct during the litigation.” King, 694 F.3d at 658 (footnote omitted)

(citing Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999)). Put simply, a defendant’s

appearances, filings, and actions in the district court may constitute “legal submission to the

jurisdiction of [that] court.” Gerber v. Riordan, 649 F.3d 514, 519 (6th Cir. 2011) (quoting Days

Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 905 (6th Cir. 2006)). But not all conduct serves as

1Federal Rule of Civil Procedure 12(g)(2) provides, “[e]xcept as provided in Rule 12(h)(2) or (3) [which

are inapplicable here], a party that makes a motion under this rule must not make another motion under this rule

raising a defense or objection that was available to the party but omitted from its earlier motion.” Rule 12(h)(1)

provides that “[a] party waives any defense listed in Rule 12(b)(2)-(5) by omitting it from a motion in the

circumstances described in Rule 12(g)(2).”

Nos. 18-3170/3220 Boulger v. Woods Page 6

constructive consent to personal jurisdiction. Instead, courts must ask whether a defendant’s

conduct “has given the plaintiff ‘a reasonable expectation’ that the defendant will defend the suit

on the merits or whether the defendant has caused the court to ‘go to some effort that would be

wasted if personal jurisdiction is later found lacking.’” King, 694 F.3d at 659 (quoting Gerber,

649 F.3d at 519).

“Determining what constitutes waiver by conduct is more [an] art than a science . . . and

there is no bright line rule.” State Auto Ins. Co. v. Thomas Landscaping & Constr., Inc., No.

2:09-cv-735, 2011 WL 3475376, at *6 (S.D. Ohio Aug. 9, 2011) (quoting Pruco Life Ins. Co. v.

Wilmington Trust Co., 616 F. Supp. 2d 210, 216 (D.R.I. 2009), aff’d in relevant part, 494 F.

App’x 550 (6th Cir. 2012)). We note though that “it is relatively easier to find forfeiture of a

service defense[,]” as opposed to a personal-jurisdiction defense. King, 694 F.3d 650 (noting

“that service of process is simply the means by which a defendant receives notice of an action

and is formally brought within a court’s jurisdiction, whereas personal jurisdiction concerns the

fairness of requiring a defendant to appear and defend in a distant forum”); see also 5B Charles

A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1353, at 338 (3d ed. 2004)

(“Although the questions of personal jurisdiction and service of process are closely interrelated,

service of process is merely the means by which a federal court gives notice to the defendant and

asserts jurisdiction over him.”). Ultimately, we must consider all of the relevant circumstances

in determining whether waiver by conduct has occurred. King, 694 F.3d at 659. And our

analysis must be deferential to the district court’s assessment of the situation. Id.

Turning to Woods’s conduct, one filing “stands out as showing the obvious intent of the

defendant[] to submit to the personal jurisdiction of the Court.” Gerber, 649 F.3d at 525 (Moore,

J., concurring). As the district court noted, although Woods raised the defenses of insufficient

service of process and lack of personal jurisdiction in his answer, he immediately filed a motion

for judgment on the pleadings in which the defenses were not included. The motion for

judgment on the pleadings was filed several months early—because Woods had not yet been

served—and necessarily sought a decision on the merits. Woods’s motion was thus “inconsistent

with the idea that the district court lacked personal jurisdiction over the defendant[].” Id.

Indeed, Woods’s actions demonstrate that he sought to have the district court use its power over

Nos. 18-3170/3220 Boulger v. Woods Page 7

the parties to reach a decision on the merits, and required the court to expend significant efforts

in doing so. See Parchman v. SLM Corp., 896 F.3d 728, 734 (“[T]he voluntary use of certain

district court procedures serve[s] as constructive consent to the personal jurisdiction of the

district court . . . .” (alterations in original) (quoting Gerber, 649 F.3d at 519)). Such voluntary

participation in the litigation gave Boulger “a reasonable expectation that [Woods would] defend

the suit on the merits.” King, 694 F.3d at 660–61 (quoting Gerber, 649 F.3d at 519).

The filing of the motion for judgment on the pleadings therefore created a reasonable

expectation that Woods would defend the suit on the merits. Any other holding would create a

perverse outcome. One can imagine a litigant asking the court to proceed on the merits, and

then, only if the court’s decision is unfavorable, seeking to re-assert jurisdictional defenses. The

district court thus reasonably concluded that Woods’s actions constituted waiver. And,

importantly, that kind of decision is precisely the discretionary judgment that district courts are

empowered to make in these kinds of circumstances. In another case, the district court might

reasonably conclude that the appearance of gamesmanship was lower than that here and reach a

different decision. But the risk is certainly there, and we will not disturb the discretion of the

district court’s judgment in this case. We therefore proceed to the merits.

B. Defamation

“We review a district court’s judgment on the pleadings ‘using the same de novo standard

of review employed for a motion to dismiss under Rule 12(b)(6).’” Fed. Deposit Ins. Corp. v.

Amfin Fin. Corp., 757 F.3d 530, 533 (6th Cir. 2014) (quoting Tucker Middleburg-Legacy Place,

539 F.3d 545, 549 (6th Cir. 2008)).

“Under Ohio law, ‘it is for the court to decide as a matter of law whether certain

statements alleged to be defamatory are actionable or not.’” Susan B. Anthony List v. Driehaus,

779 F.3d 628, 632 (6th Cir. 2015) (quoting Yeager v. Local Union 20, 453 N.E.2d 666, 669

(Ohio 1983), overruled on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007)).

In order to establish a claim for defamation, a plaintiff “must show (1) that a false statement of

fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4)

that the plaintiff suffered injury as a proximate result of the publication, and (5) that the

Nos. 18-3170/3220 Boulger v. Woods Page 8

defendant acted with the requisite degree of fault in publishing the statement.” Driehaus,

779 F.3d at 632–33 (quoting Am. Chem. Soc. v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio

2012) (internal citation omitted)). Failure to establish any one element is fatal to a defamation

claim. Id.

Here, only the first element is at issue. The case thus boils down to one question: does

Woods’s tweet constitute a false statement of fact? See Scott v. News-Herald, 496 N.E.2d 699,

705 (Ohio 1986) (“Expressions of opinion[,]” as opposed to statements of fact, “are generally

accorded absolute immunity from liability under the First Amendment.”). The Ohio Supreme

Court has held that in determining “whether a statement constitutes protected opinion or

actionable fact, courts should consider the totality of the circumstances, including factors such

as: (1) the specific language used; (2) whether the statement is verifiable; (3) the general context

of the statement; and (4) the broader context in which the statement appeared.” Bentkowski v.

Scene Mag., 637 F.3d 689, 693–94 (6th Cir. 2011) (internal quotation marks omitted) (citing Vail

v. The Plain Dealer Publ’g Co., 649 N.E.2d 182, 185–86 (Ohio 1995)). Each factor is to be

addressed, “but the weight given to any one will conceivably vary depending on the

circumstances presented.” Vail, 649 N.E.2d at 185.

This case, however, differs slightly from those cases contemplated by the Ohio Supreme

Court. Here, rather than determining whether a statement is protected opinion or actionable fact,

we are asked to analyze whether Woods’s question constitutes a statement at all. But Ohio case

law indicates that even in a unique circumstance such as this one, the four-prong, totality-of-the-

circumstances test is still the appropriate framework. Indeed, in McKimm v. Ohio Elections

Commission, 729 N.E.2d 364, 371 (Ohio 2000), the Ohio Supreme Court was asked to determine

whether a cartoon could be construed as an implied statement of fact. In its analysis, the court

noted the four-factor test and explained that “[a]ll four factors of Ohio’s test for distinguishing a

statement of fact from an opinion depend on the reasonable reader’s perception of the

statement—not on the perception of the publisher.” 729 N.E.2d at 371. While the court’s

analysis in McKimm did not explicitly apply the four-prong test, the Ohio Supreme Court made

clear, and has continued to make clear, that the four-prong test is the appropriate framework in

analyzing whether a message can be construed as a statement of fact. See Wampler v. Higgins,

Nos. 18-3170/3220 Boulger v. Woods Page 9

752 N.E.2d 962, 971 (Ohio 2001) (explanatory parenthetical states that the court in McKimm

relied on the four-prong test). We are thus satisfied that the four-prong test should be utilized in

determining whether Woods’s tweet constituted a statement of fact under Ohio law.

1. Factor 1 - Specific Language Used

Under the first factor, courts seek “to determine whether the allegedly defamatory

statement has a precise meaning and thus is likely to give rise to clear factual implications.”

Bentkowski, 637 F.3d at 694 (quoting Wampler v. Higgins, 752 N.E.2d 962, 978 (Ohio 2001)).

Woods argues that because the specific language at issue was a question—and thus not likely to

give rise to clear factual implications—his tweet was not a statement of fact. In the alternative,

Woods argues briefly that his tweet was not actionable because the word “Nazi” is “inherently

imprecise and subject to myriad subject interpretations.” (Appellee Br. 12 (quoting Wampler,

752 N.E.2d at 979).) However, the cases Woods relies upon—involving statements such as

“surgery Nazi” and “Little Hitler”—are easily distinguishable from the language used in this

case. Consequently, this argument has no merit.

Woods spends more time arguing that his use of a question mark inherently precludes his

tweet from qualifying as a statement of fact:

Basic grammar establishes that “[a] question mark follows every question for

which an answer is expected.” BRYAN A. GARNER, GARNER’S MODERN

ENGLISH USAGE 752 (4th ed. 2016) (emphasis added). The question mark

signaled to Mr. Woods’ Twitter followers his “lack of definitive knowledge about

the issue,” and also “invites the readers to consider” various possibilities.

Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995). From grade school

on, question marks at the end of a sentence signal the sentence is a question.

Applying those same basic grammar rules, requires the dismissal of the

Complaint.

(Appellee Br. 11 (emphasis in original).)

Although this court has never confronted the issue of whether questions can (or cannot)

be defamatory, Ohio courts have. In Schoedler v. Motometer Gauge & Equip. Corp., the Ohio

Supreme Court held that “[a] mere insinuation is as actionable as a positive assertion, if the

meaning is plain, and it has been held repeatedly that the putting of the words in the form of a

Nos. 18-3170/3220 Boulger v. Woods Page 10

question will in no w[ay] reduce the liability of the defendant.” 15 N.E.2d 958, 961 (Ohio 1938)

(internal citations and quotation marks omitted). We agree, as it is easy to see how

commentators and journalists could use questions “as tools to raise doubts . . . about a person’s

activities or character while simultaneously avoiding defamation liability.” Abbas v. Foreign

Policy Grp., LLC, 783 F.3d 1328, 1338 (D.C. Cir. 2015). For example, “a question’s wording or

tone or context sometimes may be read as implying the writer’s answer to that question.” Id.

(emphasis in original); see also Bryan A. Garner, The Chicago Guide to Grammar, Usage, and

Punctuation (2016) (“[A] rhetorical question is phrased in the interrogative structure but is meant

as an emphatic or evocative statement.”) (emphasis added). For this reason, a blanket protection

of defamation liability for any and all questions is inappropriate.

It is worth noting, however, that other circuits have opined that “it is generally settled as a

matter of defamation law . . . that a question, ‘however embarrassing or unpleasant to its subject,

is not accusation.’” Abbas, 783 F.3d at 1338 (quoting Chapin v. Knight-Ridder, Inc., 993 F.2d

1087, 1094 (4th Cir. 1993)); see also Bugliosi, 56 F.3d at 1157 (holding that a defendant’s use of

a question mark indicates “lack of definitive knowledge about the issue”).2 Even still, these

holdings do not amount to a per se rule that questions cannot be defamatory.

As to the question in this case, on March 12, 2016, Woods posted two photos—one photo

of a woman giving the Nazi salute and one of Boulger. These photos had been posted by other

Twitter users who affirmatively identified Boulger as the woman giving the Nazi salute, yet

Woods chose to frame his tweet as a question. According to Woods, the question mark

illustrates that he intended the tweet to ask a question to his followers. But Woods’s intentions

are irrelevant; all that matters to this court is the reasonable reader’s interpretation of his tweet.

See McKimm, 729 N.E.2d at 371.

2Boulger also likens Woods’s tweet to someone asking, “When did Plaintiff start beating his spouse?” or

“Can you believe that Plaintiff committed another heinous crime?” (Boulger Reply Br. 9–10.) But these examples

are potentially defamatory as factual statements because, despite being framed as questions, they are statements of

fact embedded within the question, i.e., that Plaintiff beats his spouse, and that Plaintiff committed another heinous

crime. Thus, these examples do not help Boulger. See, e.g., Abbas, 783 F.3d at 1338 n.7 (noting that “questions that

contain embedded factual assertions may sometimes form the basis for a successful defamation claim”).

Nos. 18-3170/3220 Boulger v. Woods Page 11

Some readers likely viewed the tweet as an insinuation that the woman in the Nazi salute

photograph was Boulger. It seems equally plausible, though, that other readers interpreted the

tweet as posing a question. It would thus be nearly impossible to say that Woods’s tweet had a

precise meaning as required by Ohio law. See Wampler, 752 N.E.2d at 979; see also Abbas,

783 F.3d at 1338 (“There is no good or predictable way to neatly divide (i) the questions that are

routinely posed in America’s robust public forums from (ii) the kinds of questions that would be

actionable as defamation by implication . . . .”). With this ambiguity in mind, the first factor

weighs in favor of nonactionability.

2. Factor 2 - Verifiability

The second factor considers whether the allegedly defamatory statement is verifiable.

“Where the . . . statement lacks a plausible method of verification, a reasonable reader will not

believe that the statement has specific factual content.” Vail, 649 N.E.2d at 186 (alternation in

original) (citations and internal quotation marks omitted). “A statement is deemed verifiable if:

(1) the author represents that he has knowledge or evidence that substantiates the statements, and

(2) there is a plausible method to verify the statements.” SPX Corp. v. Doe, 253 F. Supp. 2d 974,

980–81 (N.D. Ohio 2003) (citing Scott, 496 N.E.2d at 706–07; Vail, 649 N.E.2d at 186;

Wampler, 752 N.E.2d at 979). For example, a non-verifiable statement would be one that refers

to an individual’s “internal motivation,” because no plausible method to confirm the veracity

exists. See Bentkowski, 637 F.3d at 694; see also Ferreri v. Plain Dealer Publ’g Co., 756

N.E.2d 712, 721 (Ohio Ct. App. 2001) (noting that “[t]here are no objective tests to establish

whether someone’s conduct is ‘scandalous,’ whether an individual is ‘beyond the call of reason,’

has the ‘qualities that make a mere lawyer into a good jurist,’ or ‘cares a good deal more about

himself and his image’ than children”). On the other hand, Ohio courts have held that “an

accusation of perjury was ‘an articulation of an objectively verifiable event’ that could be proven

‘with evidence adduced from the transcripts and witnesses present at the hearing.’” Wampler,

752 N.E.2d at 979 (quoting Scott, 496 N.E.2d at 707).

The district court held that a “question itself cannot be proven or disproven because

questions, by their nature, lack truth values.” (Op. & Order, R. 21, PageID 207.) But as we have

already noted, a question’s wording, tone, or context can be read as implying a writer is asserting

Nos. 18-3170/3220 Boulger v. Woods Page 12

a statement of fact. Take a rhetorical question as an example. A person could walk outside, see

that it is snowing, and tweet “Is it seriously snowing again?” Read in context, the question can

be reasonably interpreted as implying a statement of fact that it is snowing, and such a statement

is undoubtedly verifiable. Accordingly, a general rule that all questions cannot be verified is

inappropriate.

This case, of course, does not present so obvious an example. We therefore proceed to

analyzing the context of Woods’s tweet.

3. Factors 3 and 4 - General and Broader Context of the Statement

Consistent with this court’s previous approach, the third and fourth factor—general

context and broader context—are analyzed together. See Bentkowski, 637 F.3d at 695 (“We

evaluate both factors together for ease of discussion, and use general context to refer to the entire

work at issue, and broader context to refer to the publication in which the work appears.”).

The general context is analyzed to determine “the larger objective and subjective context

of the statement[,]” so that the alleged defamatory statements are not examined in isolation. Id.

(quoting Scott, 496 N.E.2d at 707). Put another way, the court considers the “immediate

context” in which the allegedly defamatory statement appears. Wampler, 752 N.E.2d at 980; see

also id. (“[T]he language surrounding the averred defamatory remarks may place the reasonable

reader on notice that what is being read is the opinion of the writer.”).

The district court concluded that “because the nature of a ‘tweet’ is fundamentally

different from a statement appearing in the context of a longer written work,” and because most

Twitter users do not sit down and read a Twitter account in chronological order, there is no

‘general context’ to examine. (Op. & Order, R. 21, PageID 209.) While we agree that a tweet

“does not map neatly” into our prior analysis of general context, that does not end the inquiry.

Instead, we consider—as both parties suggest—the allegedly defamatory statement in the context

of Woods’s other tweets on March 12, 2016.

A review of Wood’s Twitter feed from March 12, 2016, shows that although he posted

news articles, his tweets were frequently accompanied by his own colorful commentary. For

Nos. 18-3170/3220 Boulger v. Woods Page 13

example, Woods retweeted a USA Today article regarding protesters at Donald Trump’s

Chicago rally, along with his own caption: “Trump blames ‘thugs’ for cancelling Chicago

rally . . . Rubio, Cruz, Kasich, Clinton blame #Trump. That says something.” (R. 9-2. PageID

87.) Woods also retweeted an MSNBC article regarding the same protesters with the caption:

“Bernie Sanders supporters shut down a Trump rally in Chicago | Try this kind of assault in

Arizona… #dangerous.” (Id. at PageID 88.) Finally, Woods tweeted a picture of a man walking

on an American flag, and stated “Why #Trump is going win [sic]…” (Id. at PageID 87). These

tweets illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that

he made frequent use of sarcasm, exaggeration, and hyperbole—characteristics more likely seen

in an opinion, rather than a statement of fact. See Scott, 496 N.E.2d at 708. Thus, the general

context could lead a reasonable reader to believe the tweet at issue was not a statement of fact.

Turning to the broader context, “the Ohio Supreme Court has recognized that ‘[d]ifferent

types of writing have . . . widely varying social conventions which signal to the reader the

likelihood of a statement[] being either fact or opinion.’” Bentkowski, 637 F.3d at 695 (first and

second alterations in original) (quoting Scott, 496 N.E.2d at 708). “Statements appearing in such

locations as forum and commentary newspaper sections, or other venues often associated with

‘cajoling, invective, and hyperbole,’ are more likely opinion.” SPX Corp., 253 F. Supp. 2d at

981 (quoting Scott, 496 N.E.2d at 708). Courts must examine the type of medium at issue and

consider how it would influence the reader’s viewpoint on whether a message is one of fact or

opinion. See id.

Twitter is a medium for users to express both opinions and disseminate news. For

example, a Twitter user who tweets his or her thoughts on various celebrities is an account that is

more analogous to an editorial section of a newspaper. Cf. Vail, 649 N.E.2d at 185–86 (finding

that a column that appeared on the Forum page of the newspaper and titled “Commentary” gave

a reader the message that the column would convey the personal opinion of the writer, as

distinguished from a news story). But the Twitter account of an online news source, such as the

New York Times, is not meaningfully distinguishable from a hard copy news story.

Consequently, it is clear that Twitter can be used to disseminate both factual accounts and

Nos. 18-3170/3220 Boulger v. Woods Page 14

assertions, as well as commentary and opinion. We therefore cannot say that this factor weighs

in favor of either party.

At base, allegedly defamatory statements will ultimately fall somewhere on the spectrum

“between paradigmatic statements of fact (such as ‘Mr. Jones had ten drinks at his office party

and sideswiped two vehicles on his way home’) and paradigmatic statements of opinion (such as

‘Mr. Jones is a despicable politician’).” Wampler, 752 N.E.2d at 977 (citing Ollman v. Evans,

750 F.2d 970, 978 (D.C. Cir. 1984)). Here, the factors do not definitively tip the scale in either

direction. Accordingly, we turn to Ohio’s innocent construction rule.

4. Innocent Construction Rule

As both parties acknowledge, the tweet at issue must also be analyzed, in the alternative,

under Ohio’s innocent construction rule. See New Olde Vill. Jewelers, Inc. v. Outlet Comm.,

Inc., 202 F.3d 269 (6th Cir. 2000) (table opinion) (“Ohio follows the innocent construction rule

in adjudging defamatory statements.”). Under the rule, “a statement reasonably susceptible to

both a defamatory and an innocent meaning must be construed, as a matter of law, to have an

innocent meaning.” Id. “It matters not that the defamatory meaning is the more obvious one.

So long as the statement may reasonably be read to have an innocent meaning, the innocent

construction rule commands that the statement be deemed non-defamatory.” Id. (citations

omitted).

Here, the tweet at issue is reasonably susceptible to both a defamatory meaning—that

Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent

meaning—that Woods was merely asking his followers a question. Because Woods’s tweet

could reasonably be read to have an innocent meaning, under the innocent construction rule the

tweet, as a matter of law, is not actionable.

III. CONCLUSION

For those reasons, we affirm the judgment of the district court.

Nos. 18-3170/3220 Boulger v. Woods Page 15

______________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT

______________________________________________________

NALBANDIAN, Circuit Judge, concurring in part and concurring in judgment. I agree

with the majority that James Woods cannot be liable for defamation because his tweet is most

reasonably understood as posing a genuine question. But I would not apply Ohio’s four-

pronged, totality-of-the-circumstances test to reach this conclusion. That test, which the Ohio

Supreme Court adopted to distinguish between statements of fact and opinion, fits awkwardly

here. I write separately to explain why.

Ohio adopted the totality-of-the-circumstances test to resolve a specific problem. Unlike

its federal counterpart, Ohio’s constitution provides absolute immunity from liability for

expressions of opinion. See Vail v. The Plain Dealer Publ’g Co., 649 N.E.2d 182, 185 (Ohio

1995); Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990). Two cases helped establish that

rule. First, in Scott v. News-Herald, 496 N.E.2d 699 (Ohio 1986), the Ohio Supreme Court

unequivocally (and it turns out, incorrectly) held that the First Amendment shields opinion

speech from suit for defamation. Id. at 705. When the United States Supreme Court disagreed in

Milkovich, Ohio reaffirmed the rule under its own constitution. See Vail, 649 N.E.2d at 185.

The Ohio constitution provides a “separate and independent guarantee of protection for opinion,”

the court held. Id. Because of that, courts presiding over defamation suits must determine

whether—as a matter of law—the offending speech falls within the protected boundary of

opinion.

To do that, the Ohio Supreme Court adopted the four-pronged, totality-of-the-

circumstances test the majority relies on today. See Scott, 496 N.E.2d at 706; Vail, 649 N.E.2d at

185. That test is “to be used when determining whether a statement is fact or opinion.” Vail,

649 N.E.2d at 185. Each prong provides a different parameter for making that assessment, and it

is within this fact/opinion paradigm that courts have continued to use it. See, e.g., Wampler v.

Higgins, 752 N.E.2d 962, 971 (Ohio 2001) (explaining that statements of opinion are protected if

they pass “Scott’s four-part test”); see also Bentkowski v. Scene Magazine, 637 F.3d 689, 693–94

Nos. 18-3170/3220 Boulger v. Woods Page 16

(6th Cir. 2011) (citing the four factors “[t]o determine whether a statement constitutes protected

opinion or actionable fact”).

The hitch, of course, is that our case is not about whether the tweet was a statement of

fact or opinion—it’s about whether the tweet was a statement at all. The defendant argues that

he cannot be liable for defamation because he asked a genuine question. And a question, he

says, cannot be defamatory because the first element of the tort requires proving the defendant

made a false statement of fact. See Am. Chem. Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852

(Ohio 2012). So our task is to determine whether we ought to construe an ostensible question as

implying an actionable statement of fact. That’s a different problem than sorting out fact from

opinion, and it is one that a mechanical application of the four-pronged test seems ill-suited for.

The problem with applying the four-pronged test presents itself most starkly when trying

to assess the second factor, verifiability. A statement is verifiable when it is “objectively capable

of proof or disproof.” Wampler, 752 N.E.2d at 979. This prong helps courts distinguish between

facts and opinions because an opinion, lacking any plausible method of verification, cannot be

proven or disproven. See Vail, 649 N.E.2d at 186. So an accusation of perjury, for example,

looks factual, because one can prove or disprove perjury. But an accusation of heartlessness

looks like an opinion, because it lacks any objective measure of truth. See Wampler, 752 N.E.2d

at 979–80.

How, though, could we apply that test in any meaningful way to a case like this, where

the speaker posed a question? Asking whether a question is verifiable is like asking how tall an

elephant weighs. A question is an inquiry, not an assertion, so it’s neither verifiable nor

unverifiable. To be sure, it might be answered, or it might imply some kind of assertion—both

of which could be verifiable. But a genuine question lacks a truth value, so asking about

verifiability only highlights how the Ohio Supreme Court designed the totality test to solve a

different problem than the one here.

The majority suggests that we should stick with the four-pronged approach because some

questions might be verifiable if the tone, wording, or context imply that the writer asserted a fact.

Take for example, a rhetorical question like, “Is it seriously snowing again?” That question, the

Nos. 18-3170/3220 Boulger v. Woods Page 17

majority correctly explains, implies the assertion that it is snowing outside—an indisputably

verifiable claim. But what the majority misses is that verifiability does nothing to solve the

antecedent problem, which is determining whether the question actually implies an assertion of

fact. And that’s the only issue in our case.

To make this more concrete, consider a different question, similar in tone, wording, and

context as the one offered by the majority: “Is the professor seriously droning on again?” Just

like the example used by the majority, this question reasonably implies an assertion—that the

professor is “droning on.” But unlike the first example, the assertion is not verifiable because the

phrase “droning on” is a “standardless statement[] not amenable to objective proof or disproof.”

See Wampler, 752 N.E.2d at 979–80. It is quintessential, unverifiable opinion. Yet the question

impliedly asserts a statement for all the same reasons as the majority’s question about snow.

Verifiability, in other words, is irrelevant. It does nothing to help courts determine whether a

question should be read as implying an assertion.

Rather than try to awkwardly work around this issue, I would resolve this case in a much

simpler way by asking whether a reasonable reader would interpret the language as a genuine

question. In McKimm v. Ohio Elections Commission, 729 N.E.2d 364 (Ohio 2000), the Ohio

Supreme Court applied a reasonable-reader standard to determine whether a cartoon contained an

implied factual assertion. Instead of going through the four-pronged totality test, the court

simply considered whether a reasonable reader would believe that the cartoon implied an

assertion of fact. Id. at 371–72.1 While not directly on all fours, the issue in McKimm resembles

the one here. Both cases circle around the same problem. Just as the McKimm court asked

whether a reasonable reader would interpret the cartoon as implying an assertion, I would resolve

this case by asking how a reasonable reader would interpret the offending tweet.

1McKimm referred to the totality-of-the-circumstances test in its opinion, but it did not apply the factors.

Rather, the court pointed to the four factors to explain how Ohio relies on objective standards for assessing the

meaning of defamatory language, which ultimately leads the court to adopt a reasonable-reader standard. McKimm,

729 N.E.2d at 371–72. The majority contends that we can read McKimm as applying the four factors because a later

opinion, in a parenthetical, suggests that’s what happened. But the McKimm court recites the actual factors only in a

footnote and does not employ them in its analysis of the cartoon. Id. at 371–72, n.2. Instead, the court expressly

states that it is applying “the reasonable-reader standard.” Id. at 371. The totality test was well established at the

time of McKimm, yet the court declined to rely on it.

Nos. 18-3170/3220 Boulger v. Woods Page 18

This approach also aligns with the only Ohio case addressing whether questions can be

defamatory, Schoedler v. Motometer Gauge & Equipment Corp., 15 N.E.2d 958 (Ohio 1938).

There, the court held that “[a] mere insinuation is as actionable as a positive assertion, if the

meaning is plain.” Id. at 961. Asking whether the “meaning is plain” looks a lot like asking how

a reasonable reader would interpret the language. If a reasonable reader could interpret the tweet

as posing a genuine question, rather than implying an assertion of fact, the meaning is not

“plain.”

Applying this standard, I would affirm the district court because a reasonable reader

would interpret the tweet as posing a genuine question. An ordinary person sees a question mark

and assumes the writer is asking a question. That does not make the punctuation definitive, but it

sets a baseline. And beyond a bit of awkward syntax, there is no basis to conclude that a

reasonable reader would find that the question mark simply obscured a defamatory accusation.

The question, for example, is not rhetorical. Woods posed the question and provided two

different pictures that the reader could look at to provide an answer, suggesting he meant it as a

genuine inquiry. Nor is this the kind of sentence that implies a secondary accusation in the form

of a question, such as, “How long have you been stealing from the company?” That kind of

question might be actionable, but it’s not at issue here. So I would affirm the district court’s

decision as a matter of law because a reasonable reader would not interpret the tweet as an

implied statement of fact.2

Admittedly, the reasonable-reader standard overlaps significantly with the four-pronged

approach adopted by the majority. How a reasonable reader might interpret a question surely

takes into account things like words and context. But the standard we use matters, even if in

practice it often amounts to “a distinction without a difference.” Vail, 649 N.E.2d at 185. The

four-pronged totality test was designed and adopted to separate fact from opinion. Since that’s

not the issue here, I would not employ the test to resolve it.

2Even if it were more ambiguous, Ohio’s innocent-construction rule requires dismissing the claim if there

is a reasonable, non-defamatory interpretation. See McKimm, 729 N.E.2d at 372.