WAP SLAPP: How Cardi B Could Defend a Libel Suit from Candace Owens (Guest Column)

The sentence “Conservative activist Candace Owens is suing Rapper Cardi B for claiming Candace’s husband cuckolded her with her own brother, based on a tweet photoshopped by Harry Styles’ fans” might sound like a game of Mad Libs gone awry. However, a quick scan of Candace Owens’ Twitter feed shows this bizarre hypothetical may soon be realized.

Rapper Cardi B’s provocative performance of her hit song “WAP” (short for “Wet Ass Pussy”) with Megan Thee Stallion at the 2021 Grammys Award Show triggered the conflagration. Her racy choreography inspired the ire of Owens, who dedicated a segment of a Monday Fox News show to ripping apart the display. Owens claimed that “[v]irtually what we were looking at ... was a lesbian sex scene being simulated on television, and this is considered [progressive].” She further complained that the performance was a celebration of perversity, as well as an attack on American values and traditions.

Cardi countered this criticism on Twitter and expressed her disbelief that conservatives were so upset over a song. When Owens tweeted that Cardi was a “cancer cell to culture,” Cardi hit back by sharing a screenshot of a viral tweet ostensibly posted by Owens in November 2020 that read: “Yes, my husband did cheat on me with my brother. Yes, he said no when I asked to join them.” Unbeknownst to the rapper, fans of pop star Harry Styles apparently photoshopped the tweet and circulated the rumor as payback for Owens’ criticism of Styles wearing a dress on the cover of Vogue.

Though Cardi asserted the tweet was genuine, citing her recollection that multiple websites had published articles about the alleged post back in November, Owens was quick to accuse Cardi of slander (technically libel) and promised to sue. But does Owens legal case have perfect posture?

Pop Off
In order to be held liable for defamation, Cardi must have made a false statement of fact that damaged Owens' reputation. Cardi has multiple defenses here. First, she can deny she conveyed any facts at all about Owens. Rather, she shared her opinion that the tweet looked legitimate to her. This is called an opinion based on disclosed facts. Because Cardi showed her werk, readers are free to reach their own conclusions. Nowhere did Cardi state, or even imply, that she personally knew the allegation to be true. The Restatement (Second) of Torts notes an opinion can be actionable “only if it implies the allegation of undisclosed defamatory facts as a basis of the opinion.”

Second, Cardi can claim her tweet was rhetorical hyperbole — not capable of being understood as factual at all. It is highly unlikely that anyone who saw the tweet was persuaded that Owens admitted to being sexually rebuffed from an incest/cuck three-way by her husband and brother. Cardi was simply clapping back. As she says, “I'm provocative, it's my prerogative.” In defamation claims involving the internet and social media websites like Twitter — a.k.a. “Twibel” claims — New York courts have noted the “freewheeling, anything-goes writing style” of the internet’s communication culture and have consistently protected statements made in online forums as statements of opinion rather than fact.

Back It Up
However, even if Owens could overcome the above defenses, she would still have to establish that Cardi acted with the requisite level of carelessness. 57 years ago, the seminal Supreme Court case of New York Times v. Sullivan raised the bar from negligence to “actual malice” for public figures suing for defamation. Actual malice is not hatred in one’s heart, but rather knowledge that a defamatory statement is false or made with reckless disregard of whether or not it is false. So while Cardi may be young and heartless, that is largely irrelevant under the First Amendment. Owens’ challenge will be to prove her nemesis knew better. When Owens asserted the tweet she had shared was fake, Cardi immediately countered by pointing out that multiple blogs had reported on the fabricated tweet in November, indicating that she did not harbor any doubts. Even if the blogs in question are not reliable sources, the fact that Cardi did any investigating at all indicates she performed at least minimal diligence.

By sticking to her guns, Cardi can use the Courtney Love defense. In Gordon & Holmes v. Love, Love’s former attorney sued her for tweeting that she was “bought off” from representing her. In determining Love did not act with actual malice, the court held that her initial belief that Holmes had been compromised, coupled with her repeated testimonies to that effect, supported the finding that she “in fact believed that Holmes had been pressured to stop representing her.” As one of the artists' songs attests, "Cardi backing down I swear to God that's not an option."

Finesse
When a legal commentator wished her good luck overcoming the difficult to surmount “actual malice” standard, Owens countered that her husband and brother are both private citizens. Yet, the Owens family might find it harder to sidestep actual malice than they assumed. First, if social media was truly aflame with the rumor in November 2020, Harry Styles’ fans may have turned Owens’ husband and brother into involuntary public figures by drawing them into a highly public controversy. Accordingly, this may elevate the defamation standard to “actual malice” for Owens’ implicated family members as well, though this doctrine is rarely applied.

Further, even if Owens’ kin are not involuntary public figures, states are free to set their own standards for private figures. Traditionally, it's negligence, which is a far more winnable standard, particularly on these facts. However, some states raise the bar for matters of public concern. Until recently. New York had “gross negligence” standard for private figures suing over speech commenting on matters of public concern, but the passage of new anti-SLAPP legislation in November 2020 raised the bar to actual malice. Further, New York requires SLAPP plaintiffs to cover defendant’s legal fees if their cases fail to gain traction.

The New York anti-SLAPP statute defines public concern quite broadly, and courts have often recognized that the subject of romance and relationships are of public interest, as the scope of subject matter which may be considered of “public interest” is broad and encompasses “interesting phases of human activity in general.” Given that Owens injected sexual mores into the conversation, it would not be unreasonable for her own relationships to be deemed matters of public concern, even if her husband and brother are not famous themselves. Okurrr.

Bronx Season
If Owens is intent on recruiting her brother and/or husband to sidestep the actual malice pitfall, it is of paramount importance that they avoid New York law. Owens’ Twitter account identifies her location as “New York, USA” and Cardi is one of the Bronx’s most famous natives (her own Twitter account is located in “Mars, NYC.”). Regardless of the location of her brother and husband, Owens runs a serious risk of having to try the case in New York. Therefore she may want to keep it in check unless she wants to risk Cardi cutting all the tongues out her sneakers, smashing her TV from Best Buy, turning into Left Eye.

Be Careful
As Harold Ramis’s character, Russell Ziskey, said in the seminal 1981 comedy Stripes: “When I was a kid, my father told me, ‘Never hit anyone in anger, unless you're absolutely sure you can get away with it.’” Well, the same holds true for suing for defamation in New York, because the last thing Candace Owens needs is to get SLAPPed back by a gangsta in a dress and wind up paying for Cardi’s lawyers next pair of Gucci shoes (and a belt like it).

Daniel Novack is a publishing industry attorney, SLAPP enthusiast and Chair of the New York State Bar Association Committee on Media Law. This article reflects his personal views (though not necessarily his musical tastes) only. Tanvi Valsangikar is a second year law student at Rutgers University School of Law.