Parkland Survivor Likely Can’t Sue for Defamation (1)

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By Patrick L. Gregory

A survivor of the school shooting in Parkland, Fla., probably doesn’t have a defamation case concerning a purported claim that he needs psychiatric help, attorneys told Bloomberg Law.

Kyle Kashuv has advocated for gun rights since surviving the shooting at Marjory Stoneman Douglas High School in February, and has appeared on media outlets including CBS and Fox News.

Journalist and former MSNBC contributor Kurt Eichenwald allegedly questioned Kashuv's mental state based on the opinion of a psychiatrist friend, in a purported email posted on Twitter by conservative commentator Ben Shapiro.

Kashuv has spoken with attorneys and is considering a lawsuit, he told Bloomberg Law April 5 via Twitter direct message.

Eichenwald “commands a lot of respect” and “his remarks will follow me around for a while,” he said.

Kashuv said he gave Shapiro permission to post the email, however.

He’ll have an “extraordinarily difficult time” proving that he was damaged by the email if he consented to that email being posted on Twitter, David H. Pollack of Coral Gables, Fla., who practices defamation law, told Bloomberg Law by telephone.

A post by Colin Kalmbacher on the “ Law & Crime” website came to the opposite conclusion, arguing that Kashuv has a strong defamation claim.

Neither Eichenwald nor Shapiro immediately responded to a request for comment.

More Hurdles

Kashuv would have to show that the allegedly defamatory statement wasn’t merely opinion, Kenneth P. White of Brown White & Osborn LLP, Los Angeles, whose practice includes First Amendment issues, told Bloomberg Law by email.

“Only provable statements of fact can be defamatory,” he said. “Insults, hyperbole, statements of opinion (unless they imply false undisclosed facts), and the like can’t be.”

The email at issue “is likely a mix of fact, opinion, and opinion based on disclosed facts,” he said. “It’s not certain that it would be treated as opinion, but it’s a major issue.”

Moreover, the outspoken Kashuv is now a public figure who must meet a “much higher standard of proof for a defamation claim” than private plaintiffs, Marc J. Randazza of Las Vegas, who practices defamation law, told Bloomberg Law by telephone.

Under that “actual malice” standard, Kashuv would have to show that there was a “knowing falsity or a reckless disregard for the truth,” Randazza said.

Kashuv could “very well argue Eichenwald acted with reckless disregard for the truth here,” the Law & Crime post argued.

Randazza disagreed. “I am no fan of Mr. Eichenwald but I would rush to his defense if he were sued for something like this” because the First Amendment “requires neither politeness nor fairness” from speakers, he said.

(Revises the description of Eichenwald's alleged comments in the third paragraph, and removes a partial quote from Randazza in final paragraph)

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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