Bipolar Disorder, Libel, Attraction to Children as “Beautiful Creatures of God,” and Anonymous “Ticking Time Bomb” Allegation

An excerpt from the long Law Office of John Randolph, PLLC v. EWU Media LLC, decided Monday by the Washington Court of Appeals (Judge Linda Coburn, joined by Judges Leonard Feldman and Ian Birk):

Attorney John Randolph, who is bipolar, had a mental health episode on August 3, 2021. During the incident Randolph approached a child at a public park and tried to persuade the child to go boating or parasailing with him. When police responded, Randolph made several nonsensical statements, including an inaccurate belief that he was the child’s father. According to Randolph, this conduct is consistent with the occurrence of a manic episode associated with bipolar disorder.

The matter resolved with Randolph pleading guilty to disturbing the peace. About two years later, Explore with Us (EWU) Media posted a 14-minute video on YouTube and Facebook, consisting of segmented police body camera (bodycam) and security camera footage of the August 3 incident. Portions of the video include EWU Media’s voice-over narration that added information beyond what was depicted in the footage, including that Randolph “does, in fact, have a bit of dirt on him, so to speak,” “apparently” is “hiding a rather tumultuous past,” and could “relapse” at any time.

The posting received millions of views and thousands of comments, including references to Randolph being a pedophile. Randolph received harassing emails and voicemails, including a death threat. He eventually closed his law practice because of the constant harassment from the public. Randolph sued EWU Media, asserting multiple claims based on his assertion that the narration over the video was false and defamatory because it includes statements leading viewers to believe Randolph is a pedophile who could relapse at any moment….

Because a reasonable jury could find that the “gist” of EWU Media’s voice-over narration was that Randolph has a history of child predation, which is an unsupported statement that Randolph denies, genuine questions of material fact remain as to whether false statements caused harm distinct from the true portions of EWU Media’s video….

In EWU Media’s narration, it describes Randolph as a “deranged suspect” who is “hiding a most disgusting secret” and states that the police investigation of him is “sickening” and his actions and the investigation are “disturbing” after Randolph “creepily” talked to children. The narrator informs viewers that “we’ll learn that John does, in fact, have a bit of dirt on him, so to speak.” The narrator later adds, “Apparently, John is allegedly hiding a rather tumultuous past. A woman who would like to remain anonymous asserts that the suspect is a ticking time bomb. You don’t know when he’s going to relapse. Just wait until he unveils his most sick and twisted confession.”

EWU Media inserted this narration immediately before playing the portion of the video where officers ask Randolph if he is attracted to children and he first says no but then, when pressed by the officer, agrees that he is attracted to children and that children are “beautiful creatures of God.” Moreover, the video captioned and emphasized the words “ticking time bomb” and “relapse” in red and all capital letters in the center of the screen.

Evaluating the entire context of the video in the light most favorable to Randolph, a reasonable jury could find that EWU Media’s narration presented Randolph as having a history of child predation.

First, while EWU Media’s inclusion of the bodycam footage and security footage could be viewed as background context that allows the viewer to interpret the situation for themselves, the narration implies that he has engaged in similar acts in the past. The narration added information to the video. Specifically, EWU Media informed viewers that Randolph “does, in fact, have a bit of dirt on him, so to speak,” “apparently” has a “tumultuous past,” and that, according to an anonymous source, is a “ticking time bomb,” at risk of “relapse.” During the narration, EWU Media emphasizes the words “TICKING TIME BOMB” and “RELAPSE,” in large red font in the center of the screen.

Even if it could be argued that these statements were opinions, they are opinions that imply the existence of false facts. In context, those implied facts are that Randolph has a history of child predation. The narration prompts the viewer with, “Just wait until he unveils his most sick and twisted confession” before showing the portion of the video where Randolph, in answering police, says that he is attracted to children.

Significantly, police incident reports, which were included in the public record and available to EWU Media, explained that officers stopped asking Randolph questions because he was answering “yes” to everything and they felt that “something was not right” and he was not being truthful. This background was not included within EWU Media’s video, posted for millions of viewers.

Additionally, EWU Media’s video, posted about two years after the August 3, 2021, incident, was not a contribution to an ongoing public debate where the viewer would expect mischaracterizations and exaggerations. Although the video included a disclaimer that said that the video was for “entertainment purposes only” and “is not to be relied upon as legal advice or opinion on any matter” this disclaimer merely flashed on the screen and was a paragraph long, so the viewer would have to pause the video to read it. More importantly, EWU Media did not present this posting as fiction “entertainment.” It presented information based on a real-life incident that involved police, an arrest, and a conviction.

Though EWU Media’s video does not explicitly state that Randolph has a history of child predation, a statement of an opinion implying the existence of such false facts supports a defamation action. Randolph submitted a declaration that denied any history of child predation. The burden then shifted to EWU Media to prove that its narration was true.

EWU Media did not take the position that the narration was true. Instead, it argued that the narration includes opinions, not factual statements. Because a reasonable jury could find that the “gist” of EWU Media’s narration over the video implied that Randolph has a history of child predation, genuine questions of material fact remain as to whether false statements caused harm distinct from the harm caused by the true portions of EWU Media’s video. We affirm the trial court’s denial of EWU Media’s motion to dismiss under the [Washington anti-SLAPP statute]….

Scott Roberts Weaver, Linda Blohm Clapham, and Gregory Mann Miller (Carney Badley Spellman, P.S.) represent Randolph.