A federal judge has dismissed a police officer's defamation lawsuit filed against Philadelphia attorney Emily Baker-White and her nonprofit watchdog group the Plain View Project, which made national headlines last year when it publicized officers' social media posts thought to be bigoted or violent.

U.S. District Judge Wendy Beetlestone of the Eastern District of Pennsylvania ruled that plaintiff D.F. Pace failed to show that the defendants exhibited reckless disregard for the truth when they published his reply to a potentially offensive Facebook post.

According to Beetlestone's Jan. 13 opinion, Pace replied "insightful point" to a police officer, identified as Anthony Pfettscher, apparently mocking an imprisoned American student in North Korea for "crying like a baby girl." Pfettscher further wrote that today's youth are coddled "in this weak PC country. Yet they act like act like animals and burn and step on our flag that so many of our children died for defending our rights and out country."

Pace alleged in his complaint that the publishing of the post in its entirety, complete with his and other's replies, roped him in with a group of officers Plain View Project believed "endorse violence, racism, and bigotry and act in manners consistent with these biases in their official capacity."

The defendants argued that a disclaimer, which viewers of the website must acknowledge before proceeding, negates any defamation claim, because it states: "The posts and comments included in the database comprise portions of a user's public Facebook activity, and are therefore not intended to present a complete representation of each person's Facebook presence, or each person's views on any given subject. Inclusion of a particular post or comment in this database is not intended to suggest that the particular poster or commenter shares any particular belief or viewpoint with any other posts or commenters in the database."

Beetlestone agreed with the defense's argument, noting that the disclaimer contained "crucial contextual language," including the statement that "'this database is not intended to suggest that the particular poster or commenter shares any particular belief or viewpoint with any other posts or commenters in the database.'"

"In sum, the implications that plaintiff belongs to 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 plaintiff endorses violence, racism, and bigotry; that plaintiff is not carrying out his oath of office with integrity; that plaintiff acts in a manner that undermines trust in police; and that he does not treat people equally are not capable of defamatory meaning," Beetlestone said. "They are statements of opinion by defendants that readers could view plaintiff in that way—leaving open the possibility that they also could not."

Additionally, the judge said Pace failed to plead actual malice.

"The complaint makes no reference to key actual malice terms like 'knowledge of falsity' and does not contain any factual allegations that suggest such knowledge. It merely recites that defendants acted in a 'malicious, intentional and reckless' manner. Although in his brief plaintiff asserts that defendants engaged in 'obvious and apparent journalistic misconduct[,]' such '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice[,]' and the court must disregard them," Beetlestone said.

Pace is represented by Louis Tumolo of The Beasley Firm, who declined to comment.

Michael Twersky of Fox Rothschild represents the defendants.

"The case is important because it represents core First Amendment protected speech. This is speech about what public officials—police officers—put out for all the world to see on their Facebook pages," Twersky said. "All the defendants did in this case is to take the publicly available Facebook posts of police officers and post them for the citizens of Philadelphia to see."

The idea for Plain View Project was first conceived by Baker-White when she was working with the Federal Community Defender Office in Philadelphia, she told The Legal last year.

While investigating a police brutality claim, Baker-White came across a meme, shared publicly by a police officer, that depicted a police dog, teeth bared and trying to run after a suspect, with text over the image that read, "I hope you run—he likes fast food."

"This led me to ask: how much more of this is out there? How many officers are sharing content like this online?" Baker-White said in an email.

To answer this question, in the fall of 2017, Baker-White and a team of researchers obtained the published rosters of police departments in eight jurisdictions—Dallas; Denison, Texas; Lake County, Florida; Philadelphia; Phoenix; St. Louis; Twin Falls, Idaho; and York, Pennsylvania—and searched Facebook for the officers' names.

When selecting the jurisdictions for the Plain View Project, Baker-White and her team utilized a specific criteria.

"We selected jurisdictions for the Plain View Project based upon two considerations: First, we wanted to create something of a geographic snapshot of American policing," Baker-White said. "With only eight jurisdictions, this meant we wanted some large jurisdictions and some small ones, some urban and some rural, and we wanted places that were spread out across the country. And second, we prioritized jurisdictions that were already having conversations about police-community relations."

If the Facebook account belonged to the officer in question, it would be scanned for problematic content. After going through more than 3,500 verified accounts, more than 5,000 posts and comments were selected to be featured in the database.

Once the data was collected, Baker-White contacted Injustice Watch, a nonprofit multimedia journalism organization that conducts in-depth research aimed at exposing institutional failures that obstruct justice and equality. Injustice Watch, in collaboration with BuzzFeed, released the June 1, 2019, article announcing the release of the Plain View Project's report.

Later that month, The New York Times and other news outlets reported that 72 Philadelphia police officers had been assigned desk duty as a result of the Plain View Project's findings.

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