A ruling last month in a Portland defamation case could have wide-reaching effect on what people can say about each other on social media—even if those statements are true.
A Multnomah County Circuit Court jury ruled that a local member of the Burning Man community intentionally inflicted emotional distress on another man with two Facebook posts and a website that described him as a danger to women.
The jury awarded Joseph A. Brown $2,200 for emotional distress, even though it found the posts and website created by Phil Hutchinson did not defame Brown or portray him in a false light.
That's an unusual verdict, says Kyu Ho Youm, a media law professor at the University of Oregon.
"To find someone guilty of intentional infliction of emotional distress [without defamation] is extremely unusual," Youm says. He says juries rarely find someone liable for intentionally inflicting emotional distress unless they've spread lies. "We are talking about something way outside the boundary of decency."
On Jan. 30, 2015, Hutchinson wrote a public Facebook post about Brown, alleging he had been ostracized from multiple social circles "for not respecting boundaries and the withholding of sexual consent."
In a second Facebook post on Feb. 11, 2015, Hutchinson posted a link to a website he created that features several public records related to Brown's legal history. That history comprises an arrest for voyeurism, restraining orders—including one from his ex-wife—three stalking orders, and a conviction in a "complex burglary case" that culminated in Brown allegedly breaking into a woman's house and climbing into bed with her.
In a sworn court declaration, Hutchinson stated he didn't intend to harm Brown but felt he needed to "alert the community to behavior [he] believed caused danger to women who might interact with Mr. Brown."
Hutchinson says he built the website because he wanted to substantiate his claims. "I thought it would be better than just another vague post on Facebook," he tells WW.
Hutchinson made the posts and the website after Brown repeatedly broke a no-contact request from an ex-girlfriend (who was Hutchinson's former roommate) and attempted to apply for services at the nonprofit where she was employed.
Jonathan Radmacher, Hutchinson's attorney, says Hutchinson, in crafting the website, was acting within reason. "Phil used public record and didn't delve beyond that," Radmacher says. "But the jury saw it as some kind of vendetta against Brown."
Civil suits, Radmacher says, do not set legal precedent, but Hutchinson still has to pay Brown the $2,200 in damages.
Brown's lawyer, Rebecca Cambreleng, declined to comment on the verdict. Brown could not be reached for comment.
The verdict raises questions about what individuals can and cannot post on social media and what is and is not protected speech on the Internet, where the lines between traditional and social media are becoming increasingly blurred.
"[Hutchinson] was doing a kind of blogging, and his intention has to do with calling attention to very serious public issues," Youm says. "More people are talking about these kinds of things through their own blogs and websites, and I'm not sure it's so outrageous as to make a claim to intentional infliction—especially with the evolving journalistic landscape."
One of the women who testified against Brown, whose name WW is withholding, says she's hesitant to speak about Brown publicly.
"It's scarier now to post anything, because you could be fined for speaking out," she says. "It's absurd."