Ultimate Fighting fans are a passionate bunch. And one passionate fan may soon face liability for creating a fake Twitter account.
The case began with a contentious relationship between UFC president Dana White and his mother June. Ms. White is not exactly a doting mother. She wrote an unauthorized, critical biography of her son. This apparently was more than UFC fan Cynthia Ortiz could stand.
To say Ortiz adhered to the motto "don't get mad, get even" is a gross understatement. Ortiz, who presumably has a lot of time on her hands, engaged in a shock and awe level social media war with Ms. White. Using various pseudonyms, Ortiz posted a variety of nasty posts falsely accusing Ms. White of conduct ranging from excessive drinking to incest.
On several occasions, Ortiz used the handle "the real June White" and under that alias, "confessed" to being a "crappy" mother and apologized for writing her "horrendous" book.
Not surprisingly, Ms. White sued, alleging defamation and misappropriation of her name. Ortiz countered that her tweets and the use the of Ms. White's name were protected by the First Amendment. She also claimed that Ms. White couldn't make a misappropriation claim because Ortiz did not receive any financial gain from using Ms. White's name. The court disagreed.
The court found the lack of financial gain did not decide the issue. Ortiz gained credibility by using Ms. White's name. By posting under "the real June White" handle, Ortiz separated herself from other trolls and hacks. The effect was to depress sales of Ms. White's book.
And the First Amendment doesn't protect false speech. When that speech concerns a public figure (even assuming Ms. White qualifies as a public figure) it's not protected if the speaker knows the content is false. Clearly, Ortiz knew she wasn't "the real June White" and so this 2 element was easily satisfied.
Courts have decided that "parody" sites, as well as parody Twitter handles, enjoy First Amendment protection. Typically those uses involve some political commentary or some other purpose. And this case shouldn't impact those rulings. But when impersonators act for no reason other than a deranged sense of spitefulness, they shouldn't expect First Amendment protection.