Starting Statement with “LOL” Doesn’t Keep The Assertion in It From Being Potentially Libelous

From yesterday’s decision by Judge Dana Sabraw (S.D. Cal.) in Button v. Lopresti:

The Court accepts the Amended Complaint’s allegations as true for purposes of resolving the motion to dismiss. Dusty Button was a world-renowned and well-known ballet dancer. She accumulated nearly half a million followers and subscribers on Instagram until December 2021, when she deleted her social media account due to “severe cyber bullying and harassment.” Mitchell Button was a part of “Button Built,” a team and brand for automotive design, builds, and work in the automotive industry. Mitchell Button also had nearly half a million followers and subscribers on his Instagram account, @button_built. He too deleted this social media account in 2021 because of “severe cyber bullying and harassment.” …

In July 2021, Plaintiffs were sued in the United States District Court of Nevada for $131,000,000 (“Nevada Lawsuit”). The Nevada Lawsuit was publicized in thousands of articles, televised on news and media outlets such as Good Morning America, and published on social media pages and channels. [The lawsuit involved allegations of sexual assault. -EV] The coverage of the Nevada Lawsuit states Plaintiffs were sued in a civil action. Plaintiffs were never arrested, charged with any crime, or jailed in connection with the allegations contained in the Nevada Lawsuit. On January 6, 2025, Plaintiffs filed a motion for summary judgment in the Nevada Lawsuit. Plaintiffs posted a redacted version of the motion for summary judgment to their Instagram page, @WeTheButtons, which is “dedicated to providing accurate information about the [Nevada Lawsuit].” Defendant followed this Instagram page….

A third-party Instagram page, @trail.huntr, posted to Instagram a photo of Mitchell Button’s automotive work. On January 27, 2025, Defendant posted a comment on this post, stating the Buttons were “locked up for some f*cked up stuff” and it was a “shame they weren’t good people.” The post by @trail.huntr was “shared” at least three hundred and twenty two times, and Defendant’s comments were published to hundreds of thousands of people.

According to Plaintiffs, Defendant knew his comments were false and would reach a substantial audience, but did so to prevent Plaintiffs from repairing their reputations and business relationships. Defendant allegedly published his comments with “actual malice.” Defendant’s comments encouraged others to make false statements about Plaintiffs, including one of his followers, who stated the Buttons were “locked up for human trafficking.” Shortly after Plaintiffs replied on the Instagram post, contesting the truth of Defendant’s accusations, Defendant deleted his comments and blocked Plaintiffs on social media. Defendant’s statements prevented Plaintiffs from repairing their reputations and professional relationships, which ultimately interfered with Plaintiffs’ existing and prospective business opportunities and deprived Plaintiffs of work. Plaintiffs allege that while they have “already suffered unimaginable loss to their businesses, careers, reputations, finances, mental health, and overall livelihood,” they continue to suffer because of Defendant’s statements….

Defendant argues Plaintiffs are public figures, and therefore, must sufficiently plead that the alleged defamatory statements were made with “actual malice.” Assuming Plaintiffs are public figures, the Court finds the Amended Complaint sufficiently pleads “actual malice.”

“Actual malice” requires that “the statement must have been made with knowledge of its falsity or with reckless disregard for whether it was false.” Here, Plaintiffs allege Defendant was a long-time fan and former competitor of Mitchell Button in the automotive industry, and was aware of Plaintiffs’ reputations in the industry. Further, Defendant reportedly followed an Instagram page, “@WeTheButtons,” which provided accurate information about the Nevada Lawsuit. Plaintiffs also allege the Nevada Lawsuit was widely publicized and media coverage reported that the case was civil, not criminal. Plaintiffs were never arrested, charged with any crime, or jailed in connection with the allegations contained in the Nevada Lawsuit. Thus, accepting Plaintiffs’ factual allegations as true and construing the pleadings in the light most favorable to the nonmoving party—as this Court is required to do—it is plausible that Defendant made the alleged statements knowing they were false or with reckless disregard for whether they were false….

Defendant argues [also] the first comment—the full quote being, “lol locked up for some f*cked up stuff”—is not “a statement about anything” because it is preceded by “lol,” an acronym for “laughing out loud.” Falsely stating someone was incarcerated is a verifiable fact that may constitute defamation…..

[But the court agrees that] the second comment, “it was a shame they weren’t good people” is “merely opinion,” that does not “imply a provable false assertion of fact” and, therefore, is not actionable….