Pace v. Baker-White
| Decision Date | 13 January 2020 |
| Docket Number | CIVIL ACTION NO. 19-4827 |
| Citation | 432 F.Supp.3d 495 |
| Parties | D.F. PACE, Esquire, Plaintiff, v. Emily BAKER-WHITE, Plainview Project, and Injustice Watch , Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Louis Tumolo, The Beasley Firm, Philadelphia, PA, for Plaintiff.
Michael K. Twersky, Fox Rothschild, LLP, Rufus A. Jennings, Deasey, Mahoney & Valentini, Ltd, Philadelphia, PA, Benjamin H. Mccoy, Fox Rothschild LLP, Blue bell, PA, for Defendants.
In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects—often black men—"should be dead" or "should have more lumps on his head." In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam "a cult, not a religion" and referred to Muslims as "savages" and "goat-humpers." And, in still others, officers appeared to joke about beating and raping women. This discovery inspired the creation of the Plain View Project ("the PVP"), a research project that has identified thousands of Facebook posts and comments by current and former police officers.1 Defendants published these posts and comments, including one by Plaintiff D.F. Pace, on the PVP website.
Pace, an attorney and inspector within the Philadelphia Police Department ("the PPD"), has sued Injustice Watch, an investigative journalism non-profit which runs the PVP, and Emily Baker-White, its former employee for defamation-by-implication and for putting him in a false light.2 Plaintiff's published comment—"Insightful point" —is not the problem here. Plaintiff's contention broadly is that, when viewed in the context of the PVP's prefatory statements regarding their criteria for inclusion on the website, Defendants' publication of his name and comment implied that he is an officer who endorses violence, racism, and bigotry and who undermines public trust in the police by acting on those biases. Defendants now move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, their motion will be granted.
The PVP is a website run by Defendant Injustice Watch which compiled comments posted publicly by police officers on their personal Facebook pages. As set forth above, the "About" tab of the site explains how the PVP came about.4 Having described the posts and comments published on the website, verbiage on the "About" tab continues: "We believe that these statements could erode civilian trust and confidence in police, and we hope police departments will investigate and address them immediately."
The methodology used to compile the posts is also described in detail on the PVP website. In the fall of 2017, Defendants obtained published rosters of police officers employed by eight jurisdictions across the United States. They then searched Facebook for the officers' names and made a list of Facebook pages or profiles that appeared to belong to them. Next, they searched within each profile for verification that the user was in fact the officer named on the rosters and to confirm that the profile was maintained by an identified police officer. Some users reported specific police departments as their employers; others posted pictures of themselves in uniform. Some discussed making arrests or performing other police duties. When a PVP researcher obtained verification and confirmation for a profile, the researcher captured the screen with the verifying information and added it to the PVP's files.
Having compiled a list of more than 3,500 verified accounts, Defendants then reviewed each public post or comment to assess whether they "could undermine public trust and confidence in police." Ultimately, they included 5,000 posts and comments which they believed "meet this criterion." Screenshots of each of these posts and comments were placed on the PVP website, the homepage of which states:
Visitors to the site can find particular posts and comments through a searchable database organized by officer name, rank, badge number, and jurisdiction. But, before conducting a search, they are presented with a disclaimer to which they must click "I Understand," or else they cannot proceed. The disclaimer, which is prominently displayed—centered in the middle of and blocking a significant portion of the viewer's screen—contains the following language:
The disclaimer also explains that the names and faces of non-officers were redacted from the posts as well as the names and faces of officers in comment threads "where their comments could not reasonably affect public trust in policing." Once a visitor has clicked on the "I Understand" link, they are free to search the database and, at least if the search is made on the same computer, the disclaimer does not come up again.
Defendants included in the database Plaintiff's comment posted on Facebook in response to another police officer's post. More specifically, on March 16, 2016, Philadelphia police officer Anthony Pfettscher created a Facebook post discussing the arrest of American Otto Warmbier in North Korea, an international news story at the time.5 Pfettscher wrote: The PVP website includes six comments to the post, including Plaintiff's, which reads, "Insightful point."6 Three of the names of the commenters were redacted, three were not. Plaintiff's name was one of the ones that was not.
Plaintiff claims that the inclusion of his comment on the PVP website defamed him and put him in a false light. At oral argument on this motion, upon being asked to specify what exact statements formed the premise of his lawsuit, Plaintiff stated that it was the inclusion of his words "Insightful point" in the context of the PVP's own description of the project on the homepage and the "About" page, as well as statements made in the disclaimer language, that— by implication—defamed and put him in a false light. More specifically, he argues that the website as a whole suggests he belongs "in a set of current and former police officers who endorse violence, racism and bigotry and act[ ] in manners consistent with these biases in their official capacity"; that he endorses violence, racism and bigotry; that he acts in a manner that undermines public trust in the police; that he is not carrying out his oath of office with integrity; and that he does not treat people equally.7
On a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), factual allegations are scrutinized to determine if the allegations and inferences proposed from those allegations are plausible. See Ashcroft v. Iqbal , 556 U.S. 662, 683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " See id. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The Court is required to "disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements." James v. City of Wilkes-Barre , 700 F.3d 675, 679 (3d Cir. 2012). The relevant question is not whether the claimant "will ultimately prevail ... but whether [the] complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer , 562 U.S. 521, 531, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011).
Defendants argue that Plaintiff's claims must be dismissed because: they are barred by the Communications Decency Act; the inclusion of Plaintiff's comment on the PVP website is not capable of defamatory meaning; Plaintiff's claims are based on De...
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