Ganske v. Mensch

Background

Charles Ganske, a journalist, sued Louise Daphne Mensch under New York law for defamation and tortious interference with contract. Ganske alleged that Mensch, a blogger and former member of Britain’s Parliament, posted a July 27, 2018 tweet from her @patribotics account after joining a Twitter exchange between Ganske and another user identified as @Conspirator0.

Ganske identified three allegedly defamatory statements in the tweet: that one of his tweets was “xenophobic”; that he had “clearly personally spread Russian bots” on his own site; and that @Conspirator0’s work had sent him into “a frenzy of tweeting and trying to discredit him.” Ganske also alleged that Mensch tagged his employer, the Associated Press, to interfere with his employment, and that his employment was terminated on August 10, 2018, purportedly because of Mensch’s tweets.

Mensch moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which asks whether a complaint plausibly states a legal claim. Ganske asked the court to treat the motion as one for summary judgment, but the court declined to do so because discovery had not occurred.

Evidence Considered on the Motion

The court granted in part and denied in part Mensch’s request for judicial notice of material outside the complaint. It considered two additional tweets Mensch posted about twenty minutes before the challenged tweet because they were part of the same exchange and provided context. It did not consider other exhibits showing tweets from earlier periods because their immediate relevance and completeness were unclear.

Defamation Claim

Under New York law, defamation requires a written statement about the plaintiff, publication to a third party, fault, falsity, and either special damages or a statement actionable without proof of special damages. Statements of opinion are not defamatory. The court examined the language, whether the statements could be proven true or false, and the context in which they were made.

The court held that calling Ganske’s tweet “xenophobic” was an opinion. Twitter’s informal and freewheeling setting signaled that the statement expressed Mensch’s viewpoint. The court also found that the term, in this context, was rhetorical and not capable of being proven true or false.

The court likewise held that the statement that Ganske had personally spread Russian bots was nonactionable opinion. Although that statement could theoretically be tested as true or false, Mensch disclosed the basis for her view by referring to @Conspirator0’s work, linking to data about alleged bot activity connected to Ganske’s former website, and discussing that data in her other tweets. The court reasoned that the links and references did not suggest that Mensch was relying on undisclosed facts.

The court also rejected the claim based on the statement that @Conspirator0’s work had sent Ganske into a “frenzy” of tweeting and efforts to discredit him. The court found that the phrase had no precise meaning, particularly in the context of Twitter, where users may post multiple short messages in succession. It further stated that Ganske had not alleged how this statement was defamatory even if it were treated as factual.

Because all three statements were nonactionable opinions, the court dismissed the defamation claim as a matter of law.

Tortious-Interference Claim

Ganske alleged that Mensch intentionally interfered with his employment contract by spreading the challenged statements and causing the Associated Press to terminate his employment. The court held that this claim was duplicative of the defamation claim because it relied on the same tweet and alleged injury flowing from reputational harm, without identifying a separate injury.

The court also held, in the alternative, that the claim would fail because Ganske did not plausibly allege that Mensch intended to cause a breach of his employment contract. The allegations that Mensch knew about the employment relationship, knew her characterization of Ganske could create reputational risk for the Associated Press, and intentionally interfered were conclusory. The court noted that it was assuming, for purposes of this analysis, that Ganske had adequately alleged the existence of an employment contract and Mensch’s knowledge of it.

Disposition

The court granted Mensch’s motion to dismiss. It dismissed Ganske’s defamation and tortious-interference claims. The court allowed Ganske to file an amended complaint no later than September 20, 2020, if he had a good-faith basis for doing so. The Clerk was directed to terminate the motion at docket entry 22.