ShotSpotter Inc. v. VICE Media, LLC ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SHOTSPOTTER INC., )
)
Plaintiff )
)
v. ) C.A. No. N21C-10-082 SKR
)
VICE MEDIA, LLC, )
)
Defendant. )
)
)
Submitted: March 11, 2022
Decided: June 30, 2022
Upon Defendant VICE Media LLC’s Motion to Dismiss Complaint
GRANTED
MEMORANDUM OPINION
Brian E. Farnan, Esquire, and Michael J. Farnan, Esquire, Farnan LLP, & Thomas
A. Clare, P.C. (admitted Pro Hac Vice), Megan L. Meier, Esquire, (admitted Pro
Hac Vice) & Amy M. Roller, Esquire, (admitted Pro Hac Vice) Clare Locke LLP,
Attorneys for Plaintiff ShotSpotter.
Thomas E. Hanson, Jr., Esquire, Barnes & Thornburg LLP and Rachel Strom,
Esquire, (admitted Pro Hac Vice), Jeremy Chase, Esquire, (admitted Pro Hac Vice),
& Nimra H. Azmi, Esquire, (admitted Pro Hac Vice) Davis Wright Tremaine LLP,
Attorneys for Defendant Vice Media.
I. INTRODUCTION
This defamation action arises from a news story published online by VICE
Media, LLC (“Defendant” or “VICE”). ShotSpotter Inc. (“Plaintiff” or
“ShotSpotter”) is a company that partners with law enforcement agencies nationwide
to implement its “network of gunfire-detecting acoustic sensors” to monitor and
notify police of purported gunshots and enable faster responses. 1 On July 26, 2021,
VICE published an article titled Police Are Telling ShotSpotter to Alter Evidence
from Gunshot-Detecting AI (the “Article”). The Article details how ShotSpotter has
exhibited a “pattern” of “altering” gunshot alerts at the request of police
departments. It labels ShotSpotter data as “untested evidence” and states that
prosecutors have been “forced to withdraw” ShotSpotter evidence during trial. The
Article relies on a number of court filings, primarily from three cases: U.S. v.
Godinez2, People v. Simmons3, and Illinois v. Williams4. Also, on July 26, 2021,
Motherboard5 Editor-in-Chief Jason Koebler posted three promotional tweets about
1
“When a loud, impulsive sound is detected by ShotSpotter’s sensors, ShotSpotter’s software
automatically prescreens the sound and filters out noises likely to be fireworks and helicopters.
The remainder are sent to a team of human reviewers that playback audio clips and analyze them
to determine if the sound is gunfire. Based on the speed of sound and the times at which the
sound reaches different sensors, ShotSpotter’s software determines the approximate location of
the gunfire, and ShotSpotter notifies law enforcement of the longitude and latitude of the gunfire
and a corresponding street address – all typically within 45-60 seconds.” See Compl at ¶ 9.
2
U.S. v. Godinez, 2019 WL 4857745 (N.D. Ill. Oct. 2, 2019), aff'd, 7 F.4th 628 (7th Cir. 2021).
The defendant was charged with shooting a federal agent. The ShotSpotter evidence originally
located a couple shots, but after conferring with Chicago police, found five additional gunshots.
3
People v. Simmons, 71 N.Y.S. 3d 924 (N.Y. Sup. Ct. Monroe Cty. 2018); Simmons v. Ferrigno,
et al. No. 17-CV-6176 (W.D.N.Y. 2018). The defendant was charged with shooting at police
officers in Rochester, New York. He was ultimately found not guilty of attempted murder.
4
Illinois v. Williams, No. 20 CR 0899601 (Ill. Cir. Ct. Cook Cty. 2021). The defendant was
charged with murder. The parties disputed ShotSpotter’s determination of a gunshot location; the
ShotSpotter real-time alert geolocation was “a mile away from the site where prosecutors say
Williams committed the murder.” See the Article.
5
Motherboard is VICE’s Tech and Science publication.
2
the Article to his Twitter account @Jason_Koebler.6 On July 29, 2021, VICE’s
CYBER podcast released an episode focusing on the Article.
On October 11, 2021, Plaintiff filed a Complaint against Defendant alleging
defamation per se and defamation by implication based on the Article, in addition to
the tweets and podcast. In the Complaint, Plaintiff seeks $50 million in general
damages, $50 million for future lost profits, $100 million for lost enterprise value,
$100,000 for expenses incurred for combatting a disinformation campaign, and $100
million for punitive damages.
On December 10, 2021, Defendant filed this Motion to Dismiss (the
“Motion”), alleging that its reporting is protected and non-actionable. In addition to
this Motion, Defendant filed a Request for Judicial Notice of a number of records,
including the Article, accompanying tweets and a podcast, other articles about
Plaintiff, and court documents involving Plaintiff. On January 21, 2022, Plaintiff
filed an Opposition to Defendant’s Motion and an Opposition to Defendant’s
Request for Judicial Notice. The Court heard oral arguments on the Motion on March
11, 2022.
II. STANDARD OF REVIEW
When judging a motion to dismiss a complaint for failure to state a claim,
made pursuant to Superior Court Civil Rule 12(b)(6), all well-pleaded allegations
must be accepted as true.7 Delaware is a notice pleading jurisdiction.8 Thus, for a
complaint to survive a motion to dismiss, it need only give “general notice of the
claim asserted.”9 The test for sufficiency is a broad one, that is, whether a plaintiff
may recover under any reasonably conceivable set of circumstances susceptible of
6
Defendant asserts that the tweets have since been deleted.
7
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
8
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
9
Id.3
proof under the complaint.10 If the plaintiff may recover, the motion must be
denied.11 In ruling on a motion to dismiss under Rule 12(b)(6), a trial court must
draw all reasonable factual inferences in favor of the party opposing the motion.12
Conversely, a Court may grant a motion to dismiss for failure to state a
claim if a complaint fails to assert sufficient facts that, if proven, would entitle the
plaintiff to relief, i.e. if it fails to plead its claim with “reasonable
‘conceivability.’”13 The court need not “accept conclusory allegations unsupported
by specific facts or . . . draw unreasonable inferences in favor of the non-moving
party.”14
III. THE STATEMENTS
Plaintiff argues that Defendant launched a “defamatory campaign” on July
26, 2021, by publishing the Article, in addition to tweets and a podcast promoting
the Article. Plaintiff alleges that the campaign “falsely accused [Plaintiff] of
conspiring with police to fabricate and alter evidence to frame Black men for
crimes they did not commit.”15 Specifically, Plaintiff labels fifteen (15) statements
as defamatory: eleven (11) defamatory statements from the Article, three (3) tweets
from Koebler, and one (1) defamatory statement from the VICE “CYBER” podcast
(the “Statements”):
Statement 1 – Headline of the Article: “Police Are Telling ShotSpotter to
Alter Evidence from Gunshot-Detecting AI.”
Statement 2 – “Prosecutors in Chicago are being forced to withdraw
evidence generated by the technology. . .”
10
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
11
Id.12
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
13
Central Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 n.13
(Del. 2011).
14
Price v. E.I. duPont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011).
15
Compl. ¶ 32.
4
Statement 3 – “Motherboard’s review of court documents from the Williams
case and other trials in Chicago and New York State, including testimony from
ShotSpotter’s favored expert witness, suggests that the company’s analysts
frequently modify alerts at the request of police departments – some of which
appear to be grasping for evidence that supports their narrative of events.”
Statement 4 – Section heading: “A pattern of alterations.”
Statement 5 – “Greene . . . was involved in another altered report in
Chicago, in 2018[.]”
Statement 6 – “Initially, the company’s sensors didn’t detect any gunshots,
and the algorithms ruled that the sounds came from helicopter rotors.”
Statement 7 – Claims that Chicago prosecutors withdrew the evidence
rather than face a Frye hearing and that “[t]he case isn’t an anomaly, and the
pattern it represents could have huge ramifications for ShotSpotter in Chicago,
where the technology generates an average of 21,000 alerts each year. The
technology is also currently in use in more than 100 cities.” “ ‘The reliability of
[ShotSpotter] technology has never been challenged in court and nobody is doing
anything about it’ . . . ‘Chicago is paying millions of dollars for their technology
and then, in a way, preventing anybody from challenging it.’”
Statement 8 – Section heading: “Untested evidence.”
Statement 9 – “If a court ever agrees to examine the forensic viability of
ShotSpotter, or if prosecutors continue to drop the evidence when challenged, it
could have massive ramifications.”
Statement 10 – “[T]he ShotSpotter audio files that were the only evidence
of the phantom fifth shot have disappeared” in the Simmons case.
Statement 11 -- In Williams, “after the 11:46 p.m. alert came in, a
ShotSpotter analyst manually overrode the algorithms and ‘reclassified’ the sound
as a gunshot. Then, months later and after ‘post-processing,’ another ShotSpotter
5
analyst changed the alert’s coordinates to a location on South Stony Island Drive
near where Williams’ car was seen on camera.”
Statement 12 – “SCOOP: Police all over America are regularly asking
Shotspotter, the AI-powered microphones that ‘detect gunshots’ to fabricate
gunshots from thin air for court proceedings, according to court records we
obtained. This is horrifying and nuts”
Statement 13 – “ShotSpotter employee testified in court that police ask
them to invent gunshots where they did not exist ‘on a semi-regular basis”
Statement 14 – “This fabricated Shotspotter evidence was the only evidence
against the man. He was exonerated and Shotspotter and the Rochester police
mysteriously deleted all audio recorded. Blatant corruption.”
Statement 15 -- Excerpt from July 29, 2021 CYBER podcast episode
between VICE employees Ben Makuch and Lorenzo Franceschi-Bicchierai.16
IV. THE PARTIES’ ARGUMENTS
Defendant moves to dismiss this Complaint, arguing that the defamation
claim fails because (1) the California Section 47(d) fair report privilege shields all
of the Statements, and that alternatively, (2) none of the Statements are false
statements of fact; eleven Statements are substantially true and eleven are protected
opinion.17 In addition, Defendant asserts that Plaintiff failed to assert malice.
Defendant also argues that the defamation by implication claim fails because
it is unreasonable and there is no intention alleged.
16
See Compl. at 31-33. The exchange focuses on the fact that prosecutors “dropped the
[ShotSpotter] evidence” in the Williams case, and that “someone had accessed the ShotSpotter
data and altered it so that something that had been registered as a firework in the database was
then called a gunshot later[.]”
17
Defendant argues that the Complaint and Public Records demonstrate the truth of Statements
1-9, 11, and 15. Defendant also argues that Statements 2-4, 7-10, and 12-15 are Protected
Opinion.
6
Plaintiff retorts that (1) the California fair privilege does not apply because
the reporting was neither an “accurate” nor “fair” report of judicial proceedings,
there was improper attribution, and tweets are ineligible for the fair report
privilege; and (2) the Statements were false assertions of fact, including improper
allegations of evidence tampering, evidence failing to survive judicial scrutiny, and
the method in which ShotSpotter measured its gunshot accuracy rates. As for
malice, Plaintiff contends that a totality of circumstances shows that Defendant
intentionally misrepresented these Statements because ultimately, Defendant
wanted to serve its “subversive” brand.
Separately, Plaintiff argues that a defamation by implication claim is
warranted because the misuse of records suggests that Defendant intended the
defamatory inference that “ShotSpotter had fabricated gunshots out of thin air to
frame Black men.”18
V. ANALYSIS
A. The Court recognizes certain exhibits as part of the Complaint, and
takes Judicial Notice of others.
Before addressing the arguments for defamation, the Court must determine
its scope of review in considering these issues. Defendant requests that the Court
take judicial notice of twenty different exhibits because they are “essential to
consider the challenged statements in the context of the publications as a whole,
and, as such, must be part of the record for this dismissal motion.”19 Plaintiff
opposes this Motion, asserting that “[m]atters extrinsic to a complaint generally
may not be considered in a ruling on a motion to dismiss” under Rule 12(b)(6).20
18
Pl.’s Opp. Br. at 24.
19
Def.’s Mot. for Judicial Notice at 8.
20
Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004).
7
There are three instances where a trial court can look beyond a complaint on
a motion to dismiss: (1) when a document is integral to a claim and incorporated
into a complaint; (2) when the document is not being relied upon to prove the truth
of its contents; or (3) when the document is an adjudicative fact subject to judicial
notice.21
Here, a number of the exhibits of which Defendant requests the Court to take
judicial notice are already incorporated into the Complaint. For example,
Defendant moves the Court to take judicial notice of the Article, Jason Koebler
tweets, and a transcript of the podcast conversation. However, all three are
integrated into the Complaint. The podcast transcript is embedded in the text of the
Complaint22, and the Article and Koebler tweets are attached exhibits.
Further, a number of these exhibits are integrated by way of the Article.
Many of these documents are hyperlinked within the Article.23 This includes three
specific court documents: a Motion to Exclude ShotSpotter evidence in Illinois v.
Williams24, the Simmons v. Ferrigno Complaint in which ShotSpotter was a
Defendant25, and a transcript of testimony from a ShotSpotter employee in United
States v. Godinez.26 The Article also links to a number of other documents and
news stories.27 Thus, a number of these Exhibits are attached to the Complaint and
21
Bredberg v. Bos. Sci. Corp., 2021 WL 2816897, at *3 (Del. Super. July 2, 2021).
22
Compl. at 31-33.
23
Adelson v. Harris, 402 P.3d 665, 669-670 (Nev. 2017).
24
See Defendant’s Ex. 8. Illinois v. Williams, No. 20 CR 0899601 (Ill. Cir. Ct. Cook Cty. 2021),
Defendant’s Frye Motion.
25
See Defendant’s Ex. 6. Simmons v. Ferrigno, et al. No. 17-CV-6176 (W.D.N.Y. 2018)
26
See Defendant’s Ex. 9. United States v. Godinez, No.18-CR-278 (N.D. Ill. 2019), Paul Greene
Testimony.
27
This includes (1) a news story from the Democrat and Chronicle about New York v. Simmons,
in which a New York county court judge overturned a criminal conviction of the defendant
based, in part, on ShotSpotter’s evidence being unreliable, (2) a ShotSpotter press release, (3) a
San Francisco Examiner news story about ShotSpotter’s guarantee of accuracy actually deriving
from its marketing department, (4) a MacArthur Justice Center press release, and a (5) a Times
Union news story about a local New York police force deciding not to use ShotSpotter,
8
subject to judicial review. Hence, they can be properly considered on a motion to
dismiss, without the Court needing to take judicial notice.28
A court may take judicial notice of a fact if that fact is “not subject to
reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonable be questioned.”29 The doctrine
should be used with caution; if there is any doubt as to the fact itself or as to it
being a matter of common knowledge, then evidence should be required.30
Delaware courts have previously taken judicial notice of public records in a motion
to dismiss context.31
It is the Court’s job to determine if statements are defamatory or not based
on their words and context. In order to determine whether the Statements in this
case are defamatory, the Court must be able to review the same court documents
that were the basis of these Statements. Here, certain Statements require proper
context by way of documents and are not expressly integrated or hyperlinked in the
Complaint and Article.
For example, Statement 3 from the Article reads: “Motherboard’s review of
court documents from the Williams case and other trials in Chicago and New York
State, including testimony from ShotSpotter’s favored expert witness . . .” The
Court is unable to determine if this Statement is defamatory without being able to
review the same court documents that Motherboard reviewed. Thus, the Court
finds it necessary to review court documents of testimony from “favored expert
Defendant’s Ex. 5. People v. Simmons, 71 N.Y.S. 3d 924 (N.Y. Sup. Ct. Monroe Cty., 2018).
28
Thus, the Court shall consider Defendant Exhibits 2, 3, 4, 6, 8, 9, 12, 14, 15, 16, 17, and 18 in
its review of the Motion.
29
Fawcett v. State, 697 A.2d 385, 388 (Del. 1997).
30
Id.31
Page v. Oath Inc., 2021 WL 528472 (Del. Super. Feb. 11, 2021) (citing Judy v. Preferred
Communication Systems, Inc., 2016 WL 4992687 (Del. Ch. Sept.19, 2016)).
9
witness” Paul Greene. In addition, the Article mentions that Silvon Simmons’
conviction was overturned, and hyperlinks to a news story about it, but does not
include the court opinion itself. The Court finds it necessary to review this opinion
to determine whether certain Statements, including Statement 10, are defamatory.
Therefore, the Court, in its consideration of the Motion to Dismiss, will look
beyond the Complaint and consider these additional public records, without
converting the Motion into a Motion for Summary Judgment.32 Importantly, the
Court is taking judicial notice of the contents of these documents to consider what
is contained therein as opposed to the accuracy of the facts in the documents. This
is necessary and proper to be able to assess the challenged Statements’ alleged
defamatory meaning and Defendant’s other libel defenses.33
B. Defamation under Delaware law
To state a claim for defamation under Delaware law, the plaintiff must plead
and ultimately prove that: 1) the defendant made a defamatory statement; 2)
concerning the plaintiff; 3) the statement was published; and 4) a third party would
understand the character of the communication as defamatory.34 If the plaintiff is
a public figure, even for a limited purpose, the public figure plaintiff
32
This includes Defendant’s Exhibits 5, 7, and 10. Conversely, the Court denies Defendant’s
Request for Judicial Notice for Exhibits 13, 19, 20, and 21. Defendant sought to include as part
of its request for judicial notice (1) other media outlets’ stories to show that other outlets made
similar statements about ShotSpotter and (2) a Chicago Inspector General report that made
similar findings to a MacArthur Justice Center press release used in the Article. The Court finds
these documents to be outside the “universe of facts that the trial court may consider . . .” See In
re Gen. Motors S’holder Litig., 897 A.2d 162, 168 (Del. 2006).
33
Plaintiff argues that Defendant has submitted incomplete exhibits. The Court has reviewed and
considered complete versions of Exhibits 7-10, and 14, as submitted by Plaintiff. The Court was
not provided with the complete version of Exhibit 11 and is unable to consider the Greene
statement in its full context. Hence, out of an abundance of caution, the Court will not take
judicial notice of that Exhibit and will not review it in its consideration of the Motion.
34
Page v. Oath Inc., 2022 WL 164008 at *6, (Del. Jan. 19, 2022) (TABLE). In this case,
Defendant does not dispute prongs two or three. The Article was published online, and it
concerns Plaintiff.
10
must also plead and prove that 5) the statement is false and 6) that the defendant
made the statement with actual malice.35
Whether or not a statement is defamatory is a question of law.36 In
answering this question, Delaware courts must determine: “first, whether [the]
alleged defamatory statements are expressions of fact or protected expressions of
opinion; and [second], whether the challenged statements are capable of a
defamatory meaning.”37 Because this question is one of law, a judge can just as
easily make the determination under a summary judgment standard as under a
motion to dismiss standard.38 The judge will have before him the allegedly
defamatory statements and can determine whether they are defamatory based on
the words and the context in which they were published.39
Early dismissal of defamation lawsuits for failure of the complaint to state a
claim on which relief can be granted “not only protects against the costs of
meritless litigation, but provides assurance to those exercising their First
Amendment rights that doing so will not needlessly become prohibitively
expensive.”40
Justice Kavanaugh, while on the DC Circuit Court, wrote of the unique
positioning of defamation claims:
The First Amendment guarantees freedom of
speech and freedom of the press. Costly and time-
consuming defamation litigation can threaten those
essential freedoms. To preserve First Amendment
35
Id.36
Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005).
37
Id.38
Id.39
Id.40
Owens v. Lead Stories, LLC, 2021 WL 3076686 at *9, (Del. Super. July 20, 2021), aff'd, 253,
2021, 2022 WL 521388 (Del. Feb. 22, 2022) (TABLE).
11
freedoms and give reporters, commentators, bloggers,
and tweeters (among others) the breathing room they
need to pursue the truth, the Supreme Court has directed
courts to expeditiously weed out unmeritorious
defamation suits.41
In just the past year, Delaware courts have reviewed three defamation claims
asserted against the free press: (1) Owens v. Lead Stories, LLC, (2) US Dominion v.
Fox News, and (3) Carter v. Page. These cases demonstrate the high bar that must
be cleared for a court to grant dismissal.
On July 20, 2021, the Delaware Superior Court dismissed the claim in
Owens v. Lead Stories, LLC, pursuant to Delaware Superior Court Civil Rule
12(b)(6).42 Conservative media personality Candace Owens alleged that she was
defamed by Lead Stories LLC, after Lead Stories issued a fact-checking response
to Owens’ claims about the COVID-19 vaccine on Facebook, labeling her
comments as a “Hoax Alert”. Lead Stories contracted with Facebook to transmit
fact-checking stories to the social media page; Facebook then had the option to
label users’ posts with these stories to determine veracity. Owens’ posts had
questioned the United States’ method for counting COVID-19 related deaths.
The Court found that Owens failed to show that Lead Stories’ statements
were false under the reasonable conceivability standard. The Court explained that
the use of a “Hoax Alert” was “loose, figurative, or hyperbolic language[]” and
further, that “[i]t is not reasonably conceivable that readers who read the Lead
Stories’ Article would have understood ‘Hoax Alert’ to mean that Plaintiffs were
41
Kahl v. Bureau of Natl. Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (Citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); New York Times Co.
v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).
42
Owens v. Lead Stories, LLC, 2021 WL 3076686 (Del. Super. July 20, 2021).
12
intentionally spreading a lie. Instead, the readers would have understood [it] as a
rhetorical hyperbole implying that the Owens’ Post carries inaccurate information
and that the readers should proceed cautiously when reading the post.”43 Hence,
this language was not seen as a basis for liability in Owens’ defamation action. On
February 22, 2022, the Delaware Supreme Court affirmed the Superior Court’s
ruling for the reasons stated in the opinion.44
On December 16, 2021, the Delaware Superior Court denied a Motion to
Dismiss in US Dominion v. Fox News. Plaintiff, US Dominion, alleged that Fox
News had defamed the company and its voting systems in its coverage of the 2020
U.S. Presidential Election. Fox News subsequently moved to dismiss.
The Court ruled that it was reasonably conceivable that Fox News’ reporting
was inaccurate in relation to election fraud allegations. Fox News asserted a fair
report privilege, similar to VICE’s claim here. But the Court found that there was
ambiguity from the viewer’s perspective, as to whether Fox News was reporting on
legal proceedings, and at times, Fox News statements “evince[d] a substantial
deviation from those proceedings’ alleged facts.”45
Of note, the Court also held that Dominion adequately alleged malice:
“[T]he Complaint alleges facts that Fox News made the challenged statements with
knowledge of their falsity or with reckless disregard of their truth.”46 The Court
noted that Fox News possessed “countervailing evidence” of election fraud from
the Department of Justice, election experts, and Dominion at the time it had been
making statements. Further, other Fox News reporters “openly disclaimed the
43
Id. at *15.
44
Owens v. Lead Stories, LLC, 273 A.3d 275 at *1, (Del. 2022).
45
US Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265 at *26, (Del. Super. Dec.
16, 2021). The Court also found that Fox’s other defenses, that the reporting was neutral and
opinion-based, did not support dismissal. These findings were determined pursuant to New York
law.
46
Id. at *28.
13
fraud claims as false” while some continued to push them. “The nearby presence of
dissenting colleagues thus further suggests Fox [News] . . . was knowing or
reckless in reporting the claims.”47
On January 19, 2022, the Delaware Supreme Court affirmed the Superior
Court’s ruling to dismiss a defamation case filed by Carter Page. Mr. Page, “a
public figure with ties to President Trump’s 2016 campaign”, filed a defamation
claim against Oath Inc., the parent company to the Huffington Post and Yahoo
News! Page alleged that the media outlets published a number of defamatory
articles about him, in regard to a dossier written by Chris Steele, which included
information that Page met with senior Russian officials and discussed potential
benefits to Russia if Donald Trump were to win the 2016 Presidential Election.
The Delaware Supreme Court found that the articles were, at a minimum,
substantially true. Page had alleged that the article improperly repeated allegations
from the report that he had met with high-ranking Russian individuals. He also
disputed the articles’ labeling of Steele as a “well-placed Western intelligence
source,” and description of Steele’s dossier as an “intelligence report.” Page
alleged that these descriptions conveyed the sense that the reports were from a high
level government employee rather than just an intelligence source. Page alleged
that viewed in totality, the articles conveyed a false gist that Page colluded with
Russian officials, something that he categorically denies.
In determining whether the statements were substantially true, the Court
looked at whether the “gist” or “sting” of the statement was true.48 In its analysis,
the Court compared “the effect of the alleged libel versus the effect of the precise
47
Id. at *28.
48
Page v. Oath Inc., 270 A.3d 833, 844 (Del. 2022).
14
truth on the mind of the recipient or average reader[,] [to] see if the effect is the
same.”49
Ultimately, the Court found that the gist of the article was true: “there was a
serious federal investigation” into Page and the Steele Dossier. The articles make
clear that these allegations were unsubstantiated and under investigation, using
phrases such as “seeking to determine” and “at their alleged meeting[.]” Further,
the Court held that the labeling of Steele and the report in the articles were not
misleading; Steele was a former MI16 intelligence operative and the report was in
fact an intelligence report, albeit not from a U.S. intelligence agency.50 These cases
demonstrate that in Delaware, there is a high bar to clear to establish defamation
against a public figure or entity. Clearing that hurdle is contingent on a “gist” or
“sting” of the challenged statements being false, and a showing of malice, based on
the defendant’s sufficient knowledge of the falsity of the statements or reckless
disregard of the truth.
C. The Court must also consider California Civil Code § 47(d).
In addition to Delaware law, the Court must also review the Statements
pursuant to California Civil Code § 47(d).51 The statute mandates that the
following are privileged: a fair and true report in, or a communication to, a public
journal, of a judicial, legislative, or other public official proceeding, or of anything
said in the course thereof, or of a verified charge or complaint made by any person
49
Id. (Quoting Ramada Inns, Inc., 543 A.2d at 317 (citation omitted))
50
Id. at 848. (“[A]dding ‘intelligence’ to ‘report’ is a description of the type of report, not a
determination of its origin.”)
51
Defendant states that California law governs as Plaintiff’s home state, headquarters, and
principal place of business. See Perlman v. Vox Media, Inc., 2020 WL 3474143, at *3 (Del.
Super. June 24, 2020). Defendant also posits that Plaintiff “already effectively conceded
California law applies” because it sent a retraction letter citing California law. Plaintiff makes no
counter-argument, and also cites to California law in its arguments.
15
to a public official, upon which complaint a warrant has been issued.52 The fair
report privilege is “applied broadly[.]”53
Like Delaware, California courts have determined that the media’s
responsibility is to ensure that the gist or sting is accurately conveyed. “Moreover,
this responsibility carries with it a certain amount of literary license. The reporter
is not bound by the straitjacket of the testifier’s exact words; a degree of flexibility
is tolerated in deciding what is a ‘fair report.’”54
“Fair and true” does not refer to the truth or accuracy of the matters asserted
in judicial proceedings, “but rather to the accuracy of the challenge[d] statements
with respect to what occurred in the judicial proceedings.”55 This accuracy is
measured by the natural and probable effect the statements would have on the
average reader. 56 Thus, the Court must analyze whether the statements made truly
“convey the substance” of what was alleged in the referenced judicial
proceedings.57
D. Plaintiff has not sufficiently pled that the Article is defamatory.
The Court must determine whether these fifteen Statements (1) are
expressions of fact or protected expressions of opinion and (2) whether the
challenged Statements are capable of a defamatory meaning.58 This determination
is based on the words and context in which the Statements were published. After
careful review of the Statements in connection with court documents integrated
into the Article, the Court finds that the Statements in question are not defamatory.
52
Cal. Civ. Code § 4753
Sipple v. Found. For Nat’l Progress, 71 Cal. App. 4th 226, 240 (1999).
54
McClatchy v. Superior Court, 189 Cal. App. 3d 961, 976-977 (1987).
55
Healthsmart P., Inc. v. Kabateck, 212 Cal. Rptr. 3d 589, 603 (Cal. App. 2d Dist. 2016).
56
Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1436 (9th Cir. 1992).
57
Id.58
Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005).
16
i. Statements about Altering Data
Plaintiff claims that the grouping of Statements 1, 3, 4 and 5 is defamatory
because they label ShotSpotter data as being “altered” or “modified” in connection
with the police. Defendant contends that these Statements are true because
ShotSpotter “regularly alters alerts.”59 Defendant also argues that even if Plaintiff
“quibbles” about the use of the word “alter”, “the gist remains” that human
involvement frequently changed the alerts’ initial findings at the customers’
request.60
The record reflects that ShotSpotter Senior Forensic Engineer Paul Greene
testified on a number of occasions that ShotSpotter alerts or reports were altered.
In Godinez, Green testified:
Forensic examination of an incident is always done at a
customer's request, only at a customer's request. It's not
something we do on a regular basis. In this case,
ShotSpotter only detected the final two shots that you
heard in the audio clip. An hour or so after the incident
occurred, we were contacted by Chicago PD and asked to
search for -- essentially, search for additional audio clips.
And this does happen on a semiregular basis with all of
our customers.61
In Simmons, Greene testified about data classifications in the following
exchange:
59
Def.’s Mot. at 18.
60
Id.61
Def.’s Ex. 9 at 406:2-10.
17
Q. Mr. Greene, I want to stop you right there. This note
here denotes some employee at [ShotSpotter] changed
the classification per the instruction of the customer?
A. Per the customer's instruction, yes.
Q. Is that something that occurs in the regular course of
business at [ShotSpotter]?
A. Yes, it is. It happens all the time.
Q. What happens if a customer calls and asks you to
change a classification that has no link to the audio that
you're listening to?
A. We have refused customers [sic] to change
classifications on incidents in the past. Typically, you
know, we trust our law enforcement customers to be
really upfront and honest with us . . .62
The word “alter” means either “to make different without changing into
something else” or “to become different.” 63 It is apparent, from Greene’s
testimony, that there is a pattern of alterations, and that these alterations sometimes
come by request of police departments.
This information, in addition to proper citation in the Article that Defendant
conducted a “review of court documents from the Williams case and other trials in
Chicago and New York State, including testimony from ShotSpotter’s favored
expert witness” provides a fair report privilege for Statement 1, 3, 4, and 5,
pursuant to Section 47(d). The gist and sting of these court proceedings were
accurately conveyed, through Greene’s testimony.
62
Pl.’s Amended Ex. 7.
63
Merriam Webster Dictionary.
18
ii. Jason Koebler Statements
Plaintiff claims that the grouping of Statements 12, 13, and 14 – the Jason
Koebler tweets – is defamatory. Plaintiff argues that there is no evidence that
gunshots have been fabricated “from thin air” or that there is “blatant corruption.”
Plaintiff argues that these tweets create the gist that there is a conspiracy between
ShotSpotter and police.
Defendant contends that these tweets are a form of opinion. Defendant
argues that “a reader would understand the fiery nature of the Tweets as opinions
based on information disclosed in the Article – not as assertions of fact.”64
First, it is clear to the Court that certain words used by Mr. Koebler are
opinion. In Statement 12, Koebler tweets, “This is horrifying and nuts.” In
Statement 14, Koebler tweets, “Blatant corruption.” These words are not
actionable. They are no worse than a plaintiff being accused of being “shockingly
racist”65 or accused of “blackmail.”66 “[A] published statement that is ‘pointed,
exaggerated, and heavily laden with emotional rhetoric and moral outrage’ is not
defamatory.”67
Next, the Court considers whether the claims in Koebler’s Statements that
police are asking Shotspotter to “fabricate gunshots from thin air” and to “invent
gunshots where they did not exist” are defamatory.
64
Def.’s Mot. to Dismiss at 25.
65
In 2021, the Delaware Superior Court dismissed a defamation claim based on a Plaintiff being
called “shockingly racist.” The Court struggled to reconcile how a jury could determine the truth
or falsity of terms that had an “imprecise and debatable meaning. Cousins v. Goodier, 2021 WL
3355471 at *4, (Del. Super. July 30, 2021).
66
Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6, 14 (1970). The U.S. Supreme Court
rejected the idea that the word “blackmail” in a news article could imply that the plaintiff had
actually committed the crime of blackmail. “[E]ven the most careless reader must have perceived
that the word was no more than a rhetorical hyperbole, a vigorous epithet.”
67
Clifford v. Trump, 339 F. Supp. 3d 915 (C.D. Cal. 2018), aff'd, 818 Fed. Appx. 746 (9th Cir.
2020) (TABLE).
19
Defendant argues that when the basis for an opinion is fully disclosed and
made available to the reader through hyperlinks, the Court must find it to be
nonactionable opinion based on disclosed fact. Here, Statement 12 links to the
Article. Statement 13 links to a Paul Greene testimony excerpt in Godinez.
Statement 14 links to an excerpt from the Article, about the phantom fifth shot in
the Simmons case.
When analyzing Statements that are a mixture of fact and opinion, the Court
must determine whether a reasonable factfinder “could conclude that the published
statements imply a provably false factual assertion.”68 To answer that, the Court
employs a “totality of circumstances” test to review the language in context and the
Statements’ susceptibility to being proven true or false.69
The parties cite different California case law to support their arguments. In
1999, a California district court, in reviewing a defendant’s website which claimed
that plaintiff was a murderer, fraud, and embezzler, held that opinions tied to
underlying facts hyperlinked in articles were not actionable.70 In 2004, a California
court held the same because the e-mails in question, sent from the defendant to
numerous companies he did business with, contained opinion based on “fully
disclosed provably true facts.”71 Conversely, Plaintiff cites to a 2019 California
court case, which held that a fair report privilege does not apply to hyperlinks that
are used incorrectly.72 The Court found that a hyperlink in an article could be
interpreted by a reader to only apply to one of the allegedly defamatory statements
and not the other one. The Court stated, “[Defendant’s] placement of the hyperlink
68
Moyer v. Amador Valley Joint Union High Sch., 225 Cal.App.3d 720, 724-25 (1990).
69
Franklin v. Dynamic Details, Inc., 116 Cal.App.4th 375, 385 (2004).
70
Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999)
71
Franklin v. Dynamic Details, Inc., 10 Cal. Rptr. 3d 429, 431 (Cal. App. 4th Dist. 2004).
72
Jezzini v. Adolf, 2019 WL 4668008 at *8, (Cal. App. 2d Dist. Sept. 25, 2019).
20
and her use of surrounding language do not necessarily signal that the hyperlink is
the source for the statement regarding the financial felonies.”73
Koebler’s tweets are dissimilar. There is no misplacement or mistake of
hyperlink. There is no chance that a trier of fact could understand a link to apply to
one Statement and not another. Koebler links to the entire Article in the first tweet,
and links to specific screenshots of the Article and relevant testimony in the next
two. It would be clear to a reader that these three tweets should be read in
conjunction with the Article, the Greene testimony, and the excerpt about the
Simmons case.
A reader could view the embedded links and determine whether to “accept
or reject” Koebler’s interpretation of the facts, “based on his or her own
independent evaluation.”74 For that reason, Koebler’s tweets are protected opinion.
iii. Statements about court cases
The Court finds that the remainder of the proffered Statements are not
defamatory. This includes the Statements about the Williams case and prosecutors
withdrawing evidence (Statements 2, 7, 11, 15), the Simmons case (6 & 10), and
untested evidence (7, 8, 9).
There is substantial truth in the Williams and Simmons Statements. As
demonstrated in the Complaint, the prosecutors’ case and ensuing ShotSpotter
evidence was withdrawn in Williams.75 While the Statement oversimplifies the
sequence of events, it is admitted in the Complaint that prosecutors learned of the
limitations of ShotSpotter technology, then “dropped the case.”76 Also, the location
was in fact changed for the gunshots. The Complaint acknowledges that the
73
Id.74
Franklin v. Dynamic Details, Inc., 10 Cal. Rptr. 3d 429, 431 (Cal. App. 4th Dist. 2004).
75
Compl. ¶ 48.
76
Id.21
location change was due to ShotSpotter providing police with the geolocation of
the park entrance, rather than the specific gunshot location.77 Further, these
Statements are supported by and derived from a motion filed by William’s public
defender. The Article specifically states: “That night, 19 ShotSpotter sensors
detected a percussive sound at 11:46 p.m. and determined the location to be 5700
South Lake Shore Drive—a mile away from the site where prosecutors say
Williams committed the murder, according to a motion filed by Williams’ public
defender.”
In Simmons, the Article states that a fifth shot disappeared. It bases this
Statement on a New York court decision which overturned the defendant’s
conviction; the judge called it “troubling” that ShotSpotter evidence had
disappeared.78 The full context provides that this happened after the evidence was
already heard by a jury, then was later deleted per company protocol.
While these Statements may lack the sufficient journalistic context, they are
substantially true in their conveyance. A plaintiff cannot defeat the California
privilege by drawing “fine distinctions” between the report and underlying
records.79
As to the withdrawn evidence, it is substantially true that the evidence had
been untested in Illinois courts. Further, the Article provides proper context for this
by also stating that ShotSpotter evidence and employee testimony has been
admitted in 190 court cases. Statements 7 and 9 also contain a portion of opinion,
because surmising that ShotSpotter may face “huge” or “massive ramifications” in
77
Compl. ¶ 47.
78
People v. Simmons, 71 N.Y.S.3d 924 (N.Y. Sup. Ct. Monroe Cty., Feb. 13, 2018) (“Greene
testified that the recording before and after the incident in question had been deleted,
as per procedures. This alone is troubling.”)
79
Cotl v. Freedom Comm’n, 109 Cal. App. 4th 1551, 1558-59 (2003).
22
Chicago is based on facts in the Article underlying this hypothesis. This constitutes
non-actionable opinion commentary.
Accordingly, considering each of the Statements coupled with the
documents to which they refer, the Court finds that they are protected expressions
of opinion, substantially true, and/or nondefamatory.
E. There is insufficient evidence of malice.
Even if Plaintiff were to establish the defamatory nature of the Statements at
the pleading stage, it fails to set forth sufficient evidence of malice. Defendant
argues that Plaintiff, as a public figure, cannot establish with convincing clarity
that Defendant acted with actual malice. A public figure may not recover damages
for defamation unless it proves that the statement was made with actual malice.80
This means that the Defendant “knew [each] statement was false or acted with
reckless disregard for the truth.”81 Further, Plaintiff must prove that the state of
mind required for actual malice would have to be “brought home” to the persons in
the media organization having responsibility for the publication.82 Thus, Plaintiff
must prove that not just the author and editor of the Article, but also Koebler and
the podcast speakers were acting with malice. Defendant also claims that the
Complaint fails to support actual malice as to each of the individual statements.
Plaintiff contends that the totality of circumstances may prove Defendant’s
malice.83 A plaintiff may prove the defendant’s state of mind through
80
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). Here, Plaintiff makes no argument
that ShotSpotter is not a public figure. Indeed, the Complaint even makes references to
ShotSpotter in other news stories, heralding it as a life saver for the community.
81
Id.82
Id. at 287. See also, Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (“When
there are multiple actors involved in an organizational defendant’s publication of a defamatory
statement, the plaintiff must identify the individual responsible for publication of a statement,
and it is that individual the plaintiff must prove acted with actual malice.”)
83
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989).
23
circumstantial evidence.84 Here, it is alleged that Defendant (1) published
Statements that contradict information known to VICE, (2) omitted and cherry-
picked material facts, (3) conceived the story line in advance of its actual reporting,
based on its guide of how to pitch stories, (4) acted due to financial motive, and (5)
refused to retract the story. Plaintiff asserts that these prongs are the “building
blocks” to make a claim for malice, and that it is “brought home” to everyone
within VICE because every participant, including reporter Todd Feathers, Koebler,
and the podcast participants, had access to the court records, and each chose to
misrepresent them.
In order to find the type of malice that Plaintiff alleges, there must be
“sufficient evidence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of [the] publication. Publishing with such doubts
shows reckless disregard for truth or falsity and demonstrates actual malice.”85 The
Defendant must have had a “high degree of awareness” of probable falsity.86
The parties dispute whether a misrepresentation of court records can amount
to malice. Plaintiff cites to a 1985 California District Court case, in which a
defendant author’s misrepresentation of the plaintiff’s arrest report was sufficient
evidence of malice in a defamation case.87 In two promotional appearances on
local television stations for the defendant’s new book, he accused the plaintiff of
having been convicted of drunk driving. In reality, plaintiff had been charged for
being drunk in public and resisting arrest.
The Court viewed the defendant’s statements as permitting a jury to find by
clear and convincing evidence that actual malice existed because he had admitted
84
Id. at 668.
85
Antonovich v. Super. Ct., 285 Cal. Rptr. 863, 866 (Cal. App. 2d Dist. 1991). See also, US
Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265 (Del. Super. Dec. 16, 2021).
86
Id.87
Murray v. Bailey, 613 F. Supp. 1276 (N.D. Cal. 1985).
24
to seeing an arrest report that explicitly stated that the charges were not as he
characterized them. The Court distinguished this case from others because the
alleged defamer “had actually seen ‘hard evidence’ that rebutted his allegations.”
The Court held that it would be “unjust and nonsensical to allow the defendant to
rely on the [arrest] report for certain purposes and to ignore it for others.”88
Here, the Court finds no such “hard evidence” acknowledged by Defendant
that rebuts the Statements made. To review an arrest report which clearly identifies
the crimes committed, and to yet report different crimes committed, is akin to
reporting 2 + 2 = 5. That is a false reporting of an objective fact. The court records
scrutinized in the Article, here, are more analogous to the number of cases cited by
Defendant, which held that inaccuracies in reporting judicial proceedings do not
constitute actual malice.89 Sloppy reporting does not establish recklessness.90
Inaccuracy itself will not demonstrate actual malice in a libel case; “even a dozen
errors” in the Article due to mistakes or bad judgment do not substitute for
knowing falsehood or reckless disregard as to falsity.91 The Court does not find
such a disregard for the truth in the publishing, and thus, ascribes little merit to
Plaintiff’s allegations of intentional misrepresentation.
Plaintiff specifically takes issue with Defendant’s allegations that evidence
of a “phantom” fifth shot disappeared in State v. Simmons, that ShotSpotter
changed coordinates in Williams from where the gunshot was originally pinned,
and that testimony in Godinez showed that police asked ShotSpotter to “invent”
gunshots where they don’t exist. The Court already found that these Statements
88
Id.89
Weingarten v. Block, 102 Cal.App.3d 129, 147 (1980)
(citing Time, Inc. v. Pape, 401 U.S. 279 (1971)). See also, Reliance Ins. Co. v. Barron’s, 442
F.Supp. 1341, 1350 (S.D.N.Y. 1977).
90
Weingarten v. Block, 102 Cal.App.3d 129, 147 (1980).
91
Reliance Ins. Co. v. Barron's, 442 F. Supp. 1341 (S.D.N.Y. 1977)
25
were not defamatory, and thus, Defendant could not have published them with a
reckless disregard for the truth, for the same reasons previously stated.
In addition, Plaintiff alleges that Defendant omitted key facts, such as: (i)
ShotSpotter evidence has “repeatedly withstood” Frye and Daubert scrutiny, (ii)
that ShotSpotter experts have helped defend constitutional rights, and (iii) that
ShotSpotter is led by a black CEO.92 Notably, the Article states that this
ShotSpotter evidence has been admitted in 190 cases, acknowledging the
information that ShotSpotter provided before publication. Notwithstanding, the
Court finds these facts irrelevant. Defendant is under no obligation to publish
flattering facts about its subject matter. Omitting these facts does not contradict
Statements made in the Article and, without more, does not show a reckless
disregard for the truth.
The Court finds the rest of Plaintiff’s arguments for malice equally
unavailing. This includes that Defendant’s investigation was a “farce” based on
how it has previously tailored stories, that financial motives support malice, and
that a refusal to retract also shows malice.93 Considering Defendant’s arguments
collectively would indicate that the vast majority of news articles published every
day – by outlets with preconceived narratives, financial motives, and an inclination
to not retract published stories -- would be subject to accusations of malice. As the
U.S. Supreme Court has previously held, “[i]f a profit motive could somehow strip
communications of the otherwise available constitutional protection, our cases
from New York Times to Hustler Magazine would be little more than empty
92
The Court notes that the Statements in question do not involve race. There are a couple
paragraphs in the Article that mention ShotSpotter sensors being placed “almost exclusively in
predominantly Black and brown communities[.]” However, Plaintiff does not challenge these
sentences as defamatory.
93
Defendant asserts that the only pre-publication communication between the parties was when
Vice reached out for a comment and ShotSpotter said their products have been used in 190
places, and that any repudiation of fact from ShotSpotter came post-publication.
26
vessels.”94 Further, a publisher is not required to provide an objective picture.95
There is a First Amendment protection for writing “which seeks to expose
wrongdoing and arouse righteous anger” even if it lacks objectivity.96
The Court finds that even viewing the facts in the light most favorable to the
Plaintiff, even if the Statements were found to be defamatory, there is insufficient
evidence, here, of malice or reckless disregard for the truth to defeat a Motion to
Dismiss.
F. Defamation by Implication
Plaintiff alleges that Defendant “falsely implied and suggested to readers
and listeners that ShotSpotter conspires with police to fabricate and alter evidence
to frame Black men for crimes they did not commit.”97 Plaintiff claims that a
number of statements would lead a reasonable person to believe that Plaintiff
engaged in “evidence tampering, evidence falsification, and other misconduct in
connection with the provision of expert analysis and testimony.”98 Plaintiff alleges
that each of these implications were published with actual malice.
The standard for malice is heightened in a defamation by implication claim.
The Third Circuit has held that while ordinary defamation cases require knowledge
of falsity, “showing known falsity alone is inadequate to establish an intent” in
defamation by implication cases.99 The Court held that plaintiffs must “show
something that establishes defendants’ intent to communicate the defamatory
meaning.”100 Alternatively, reckless disregard for the defamatory meaning of a
statement can satisfy the standard.
94
Harte-Hanks Commun., Inc. v. Connaughton, 491 U.S. 657, 667 (1989).
95
Reader's Dig. Assn. v. Super. Ct., 690 P.2d 610, 619-20 (Cal. 1984).
96
Id.97
Compl. at 36.
98
Id. at 37.
99
Kendall v. Daily News Pub. Co., 716 F.3d 82, 90 (3d Cir. 2013).
100
Id.27
Plaintiff contends that Defendant knew of the defamatory inference of the
Article because Defendant misrepresented facts from court records. The Court has
already found that Plaintiff could not satisfy the lesser standard of reckless
disregard for the truth, and hence it cannot satisfy the greater standard of intent to
communicate defamatory meaning. The Motion to Dismiss for Defamation by
Implication is granted for the above stated reasons.
VI. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion to
Dismiss.
IT IS SO ORDERED, this 30th day of June, 2022.
_________________ ____
Judge Sheldon K. Rennie
28