Daniel Flickinger v. Lawrence Tracy King and King Simmons Ford & Spree P.C. ( 2023 )

Rel: April 21, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Daniel Flickinger
v.
Lawrence Tracy King and King Simmons Ford & Spree P.C.
Appeal from Jefferson Circuit Court
(CV-21-226)
COOK, Justice.
In 2020, Daniel Flickinger, an attorney in Birmingham, posted a
message on his personal Facebook social-media page in which he
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appeared to reference the death George Floyd, which occurred while
Floyd was being arrested and was recorded. The social-media post, along
with an allegedly "counterfeit" social-media "profile," was later shared
with Flickinger's supervising attorney at his law firm by Lawrence Tracy
King, an attorney with the Birmingham law firm of King Simmons Ford
& Spree, P.C. ("the King law firm"). Shortly thereafter, Flickinger was
forced to resign. Flickinger's post was also shared by members of a
"private" Facebook group, who then posted a series of offensive comments
about him both personally and professionally.
Flickinger sued King and the King law firm ("the King
defendants"), asserting claims of defamation, invasion of privacy, and
tortious interference with a business relationship. The King defendants
filed a motion to dismiss Flickinger's claims pursuant to Rule 12(b)(6),
Ala. R. Civ. P., and that motion was granted by the Jefferson Circuit
Court. We affirm in part and reverse in part the trial court's judgment
and remand the cause for further proceedings consistent with this
opinion.
Facts and Procedural History
At the time of the events underlying the present lawsuit, Flickinger
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had been employed as a full-time litigator at Wainwright, Pope &
McMeekin, P.C. ("WPM"), for approximately 11 years. According to
Flickinger, during the course of his career with WPM, he had been active
on various social-media platforms and had often posted "conservative
political and cultural commentary" on those platforms. Flickinger
maintained that, when he posted such commentary, he always did so in
his "personal capacity" and that he never "listed his place of employment
on his personal social media profiles or in conjunction with his personal
social media posts."
It is undisputed that, in June 2020, Flickinger posted the following
message on his personal Facebook page, apparently regarding the death
of George Floyd:
"Things I think about: If I were a seven-time felon, with my
most recent prison stint stemming from robbing and holding
a pregnant woman at gunpoint in her home, would I choose to
die in a fentanyl and methamphetamine numbed
strangulation if it meant being worshipped in a nationwide
funeral and my family receiving millions of dollars? Purely
hypothetical."
On June 9, 2020, Flickinger received a telephone call from his
supervising attorney, Lonnie Wainwright, during which Wainwright
revealed that King had contacted him regarding Flickinger's social-media
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post. Wainwright asked that Flickinger meet with him the following day.
According to Flickinger, shortly after speaking with Wainwright, he
received a "cryptic tweet" from the King law firm's Twitter social-media
account -- @KingSimmonsPC -- that contained a "large eyes emoji" along
with one of Flickinger's posts from several days earlier on his personal
Facebook page. 1
The next day, June 10, 2020, Flickinger met with the partners of
WPM. Although, according to Flickinger, the WPM partners at the
meeting admitted that they "did not understand social media" and were
"not on social media," they expressed that they were very concerned
about the public connection between his social-media post and their law
firm, and, according to Flickinger, one partner asked: "How could you do
this to us?"
After Flickinger asked the WPM partners numerous times for a
copy of the actual images sent to them by the King defendants, Flickinger
says, "the managing partner … permitted [Flickinger] to view his phone,
1This was the first and only correspondence that Flickinger alleges
that he received from the King defendants, and he contends that at no
point did the King defendants inform him that they had contacted WPM.
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which depicted an image that was generated, manufactured, sent,
published, and/or distributed by Lawrence T. King and King Simmons
Ford Spree, P.C. containing a counterfeit social media profile using
[Flickinger's] professional credentials that [Flickinger] had never used in
conjunction with personal social media posts." (Emphasis added.)
According to Flickinger, the allegedly "counterfeit" social-media profile
contained a professional photograph "appropriated" from WPM's Web
site that, he said, he had never used on any of his personal social-media
platforms as well as the name of Flickinger's employer, which, he
maintains, he had "never advertised or shared in conjunction with any of
his personal social media posts."
According to Flickinger, digitally merged with this "counterfeit"
social-media profile were additional social-media posts appropriated
from his personal social-media platforms that were critical of the mass
nationwide violence that had been going on in the wake of George Floyd's
death. Additionally, offensive comments about his initial social-media
post about George Floyd's death had been added to that "counterfeit"
profile to make it appear that third persons were commenting directly on
the social-media post. Those comments included statements that
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Flickinger was a "racist" and that WPM was "a business that supports
racism."
Flickinger was then told that the WPM partners had had
discussions with King about the King defendants' "ability and
willingness to control the distribution of the false and defamatory images
favorably for WPM." At the conclusion of the meeting, Flickinger was
informed that either he must resign or WPM would pursue "other [more
punitive] options." Flickinger resigned.
After Flickinger resigned, the WPM partners informed him that
they had spoken on the phone with King a second time and that King had
told them again about the King defendants' "ability and willingness to
control the distribution of the false and defamatory images favorably for
WPM." The very next day, the following "tweet" appeared on the
@KingSimmonsPC Twitter page:
"We represent a lot of hurt workers across Alabama, & spar
w/lots of great defense lawyers. Those @ [WPM] (2 of whom
I've know for well over 34 years) are as diligent, fair, upright,
honest, & ethical as are found anywhere. Felt like saying it.
#RESPECT."
Additionally, a Facebook page belonging to an individual who Flickinger
alleges is a "co-conspirator" with the King defendants contained the
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following message:
"Now that [Daniel Flickinger] has been erased, I want to say
that the firm he worked for has a great reputation in town and
they are honest, professional, kind people. Good for them for
such a fast and definitive response."
Flickinger subsequently discovered that the King law firm's Twitter
page contained "tweets" allegedly authored by the King defendants
"gloating over the employment termination of private citizens solely on
the basis of citizens expressing thoughts and opinions with which [the
King defendants] disagreed." For example, Flickinger noticed that, before
the events underlying the present action occurred, the following post
appeared on the @KingSimmonsPC Twitter page regarding the
employment termination of a different person:
"5/12/2020: Here's a white guy that got fired by his law firm
employer. He wouldn't wear a mask in a 'ghetto store' and
bragged about his guns and ammo. What a turd…"
In addition, Flickinger alleges that he later discovered that
members of a 1,500-plus member "private" Facebook group named
"CALLING OUT ALABAMA BUSINESSES THAT SUPPORT RACISM"
had been posting the following statements accusing him of being a
"racist" and accusing WPM of being a "business that supports racism":
• "Calling Out Alabama Businesses That Support Racism… So
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[Daniel Flickinger] is a lawyer! Who knows what kinda
ethical damage he's done?! He works at Wainwright, Pope,
McMeekin, P.C."
• "I went to school for years with this asshole… Racist condones
running over protestors a few posts down…"
• "….DEFINITELY email [Daniel Flickinger's] firm. Firms are
firing people left and right for being racist scumbags (and
rightfully so)"
• "Ugly inside and out"
• "What a f***ing piece of s**t"
According to Flickinger, King was a member of this "private" Facebook
group, something that King now denies.
As a result of this conduct, Flickinger filed suit against the King
defendants. In his second amended complaint, Flickinger alleged claims
of defamation, invasion of privacy, and tortious interference with a
business relationship. It does not appear that Flickinger averred that the
content of his social-media post itself was doctored; instead, he averred
that the image sent to his employer is actionable because it was falsely
made to appear as if he was posting from an account linked to his place
of employment. He also alleged that the false and defamatory statements
added to the image (that is, the comments by others) were actionable. As
a "direct result of false and defamatory materials generated,
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manufactured, sent, published and/or distributed by Defendants among
the partners of WPM," Flickinger alleged that he was constructively
discharged.
The King defendants filed a motion to dismiss in which they alleged
that Flickinger's "claims do not contain the necessary elements for any of
those causes of action and thus the Complaint, on its face, must be
dismissed," asserting that attributing Flickinger's own statements from
his personal Facebook page to him was not defamatory. They also argued
that Flickinger's tortious-interference claim was due to be dismissed
because, they said, they never intended for his employment with WPM to
be terminated and there was nothing wrongful about their decision to
truthfully share the content of Flickinger's Facebook post with WPM.
Finally, the King defendants argued that Flickinger's invasion-of-privacy
claim was due to be dismissed because, they said, the social-media
statements attributed to him were not "false" and were not "publicized."
In his response to their motion, Flickinger disputed that he had
failed to satisfy the elements of his claims. Specifically, Flickinger
disputed the King defendants' assertion that they did not intend to bring
about the termination of his employment by sharing his Facebook post
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with WPM. In support of his response, Flickinger argued that various
tweets from the @KingSimmonsPC Twitter page "gloatingly revel in the
employment termination of American citizens, who … expressed personal
opinions that ran afoul of [the King defendants'] self-described
'progressive,' political orthodoxy."
The trial court conducted a hearing on the motion. 2 Following that
hearing, the trial court entered a judgment in which it stated:
"In his Complaint, [Flickinger] asserts claims for defamation,
invasion of privacy/false light, [and] tortious interference .…
All of these claims have their genesis in the fact that
[Flickinger] was terminated from his at-will employment as
an associate attorney at a law firm for making a social [media]
post on his personal social media account. … The Complaint
makes clear that [Flickinger] knowingly and purposefully
made the social media post. The Complaint also makes clear
that [Flickinger] was an associate attorney at the law firm at
the time he made the social media post. Finally, the
Complaint makes clear that [Flickinger] was terminated from
his employment with the law firm for making the social media
post while he was an associate attorney at the law firm.
"This lawsuit states no claims against [Flickinger's] former
law firm; i.e., there is no allegation that the law firm illegally
terminated [Flickinger] from his employment. Rather, this
suit seeks to advance tort claims against third-parties who are
alleged to have linked the fact that [Flickinger] made the
social media post to the fact that [Flickinger] was an
associate attorney with the law firm, which resulted in the
2A transcript of the hearing was not included in the record on
appeal.
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termination of [Flickinger's] employment at the firm.
"Because [Flickinger's] Complaint acknowledges that all of
the above facts are true, none of the counts in the Complaint
states a claim upon which relief can be granted. See
Mooneyham v. State Bd. of Chiropractic Examiners, 802 So.
2d 200, 203 (Ala. 2001) ('It is well established that truth is an
absolute defense against a defamation claim. Because
Mooneyham's defamation claim alleges a truthful
communication, he cannot prevail even if we accept his
allegations as true. Therefore, the trial court properly
dismissed this claim against the defendants.') (internal
citations omitted); Borden v. Malone, 327 So. 3d 1105, 1112
(Ala. 2020) ('a court may dismiss a complaint for failure to
state a claim based on an affirmative defense when the
allegations of the complaint, on their face, show that the
defense bars recovery'); Regions Bank v. Plott, 879 So. 2d 239,
24 (Ala. 2004) ('unlike defamation, truth is not an affirmative
defense to a false-light [invasion-of-privacy] claim; rather,
"falsity" is an element of the plaintiff's claim, on which the
plaintiff bears the burden of proof'); Bosarge v. Bankers Life
Co., 541 So. 2d 499, 501 (Ala. 1989) ('Bosarge cannot complain
because Bankers Life notified his clients that he was no longer
a full-time associate of Bankers Life. That was obviously a
truthful notification, because Bosarge had been terminated as
an agent for Bankers Life.') …."
Based on the foregoing, the trial court granted the King defendants'
motion and dismissed Flickinger's claims with prejudice. Shortly
thereafter, Flickinger filed a postjudgment motion that was denied. He
now appeals.
Standard of Review
"'On appeal, a dismissal is not entitled to a
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presumption of correctness. The appropriate
standard of review under Rule 12(b)(6)[, Ala. R.
Civ. P.,] is whether, when the allegations of the
complaint are viewed most strongly in the
pleader's favor, it appears that the pleader could
prove any set of circumstances that would entitle
her to relief. In making this determination, this
Court does not consider whether the plaintiff will
ultimately prevail, but only whether she may
possibly prevail. We note that a Rule 12(b)(6)
dismissal is proper only when it appears beyond
doubt that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff
to relief.'
"Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993) (citations
omitted)."
Lloyd Noland Found., Inc. v. Healthsouth Corp., 979 So. 2d 784, 791 (Ala.
2007) (emphasis added).
Discussion
On appeal, Flickinger argues that the trial court erred by
dismissing his case at the pleading stage and resolving what he says were
"highly disputed factual contentions injected by [the King defendants]
purporting to defend their motives and the reason behind [his]
employment termination." Flickinger's brief at 26. As explained in more
detail below, we conclude that the trial court properly dismissed
Flickinger's defamation and invasion-of-privacy claims but should not
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have dismissed his tortious-interference claim.
I. Defamation
First, Flickinger contends that he has pleaded actionable
defamation in the present case. According to Flickinger, the images
"curated and distributed" by the King defendants contained "false and
defamatory statements" that, "when considered in the societal context of
the unhinged Summer 2020 cultural climate," indicate "that [he]
conducted his legal profession in a racist manner." Flickinger's brief at
28. The King defendants contend, however, that the trial court properly
dismissed this claim because, they say, linking Flickinger's publicly
viewable photograph from WPM's Web site as a means of identifying him
as the one who posted the social-media post at issue is not defamatory.
In Alabama, the elements of a cause of action for defamation are:
"'"1) [A] false and defamatory statement concerning the
plaintiff; 2) an unprivileged communication of that statement
to a third party; 3) fault amounting to at least negligence on
the part of the defendant; and 4) either actionability of the
statement irrespective of special harm or the existence of
special harm caused by the publication of the statement."'"
Dolgencorp, LLC v. Spence, 224 So. 3d 173, 186 (Ala. 2016) (quoting Wal-
Mart Stores, Inc. v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003), quoting
in turn McCaig v. Talladega Publ'g Co., 544 So. 2d 875, 877 (Ala. 1989)).
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The trial court cited Mooneyham v. State Board of Chiropractic
Examiners, 802 So. 2d 200, 201-04 (Ala. 2001), in dismissing Flickinger's
defamation claim on the basis that he had not satisfied the first element
(falsity). In Mooneyham, a licensed chiropractor was investigated by the
State Board of Chiropractic Examiners for violations of various laws,
rules, or regulations applicable to the chiropractic profession. Following
the investigation, the Board revoked the chiropractor's license and
ordered him to pay a fine. It then shared the results of its investigation
with certain third parties, including the State of Florida and the
Federation of Chiropractic Licensing Boards.
Almost two years later, the chiropractor obtained a reversal of the
Board's determination. He then filed suit against the Board and some of
its members in which he alleged, among other things, that the Board's
decision to publish the findings of its investigation to third parties
constituted defamation. The Board and the other individual defendants
moved to dismiss the chiropractor's complaint, and the trial court granted
their motion.
On appeal, this Court affirmed the dismissal of the chiropractor's
defamation claim. In support of its holding, this Court stated:
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"We are particularly interested in [the chiropractor's]
allegations that the Board found him guilty of four violations
of Alabama's professional code of conduct for chiropractors.
We note that [the chiropractor] alleged as a fact that the
Board's adjudication of his disciplinary matter occurred
before the time when he alleges certain members of the Board
authorized communications to third parties notifying those
third persons of the conclusion and result of the Board's
proceedings against him.
"[The chiropractor's] complaint indicates that he has
essentially pleaded that the Board communicated accurate
and true information -- at the time the alleged
communications were authorized and at the time they were
made, the Board had made its ruling and that ruling had not
yet been reversed by the Montgomery Circuit Court. It is well
established that truth is an absolute defense against a
defamation claim. Drill Parts & Serv. Co. v. Joy Mfg. Co., 619
So. 2d 1280, 1289 (Ala. 1993); Foley v. State Farm Fire & Cas.
Ins. Co., 491 So. 2d 934, 937 (Ala. 1986); and Liberty Loan
Corp. of Gadsden v. Mizell, 410 So. 2d 45, 49 (Ala. 1982).
Because [the chiropractor's] defamation claim alleges a
truthful communication, he cannot prevail even if we accept
his allegations as true. Therefore, the trial court properly
dismissed this claim against the defendants."
802 So. 2d at 203 (emphasis added).
Unlike in Mooneyham, here, Flickinger alleged in his complaint
that the King defendants had shared a "counterfeit" social-media profile
that appeared to show that Flickinger was making a controversial
political statement on behalf of WPM. Although Flickinger does not
dispute that the statement in the post that was shared was his and was,
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therefore, truthful, he pleaded that the remainder of the post -- coupled
with the "counterfeit" social-media profile -- falsely associated his
political views with WPM.
The affirmative association of a potentially incendiary social-media
post with the employer of the writer of the post could be relevant to a
reader and would certainly be relevant to the employer. In fact, one of
WPM's partners admitted to Flickinger that he "did not understand
social media" and was not "on social media." It would be reasonable to
conclude that he believed that readers of the post might make this false
association. Thus, under these circumstances, we agree with Flickinger
that the nature of this social-media post was in fact "false."
However, our caselaw makes clear that it is not enough for a
statement to be "false," it must also be "defamatory." This Court has
previously stated that "'[t]he test to be applied [by the court] in
determining the defamatory nature of an imputation is that meaning
which "would be ascribed to the language by a reader or listener of
ordinary or average intelligence, or by a 'common mind.'"'" Finebaum v.
Coulter, 854 So. 2d 1120, 1128 (Ala. 2003) (citations omitted). Writings
-- or, in this case, screenshots depicting images of writings -- can be
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"defamatory" if they "'"tend[] to harm the reputation of another so as to
lower him in the estimation of the community or to deter third persons
from associating or dealing with him."'" Blevins v. WF Barnes Corp., 768
So. 2d 386, 389-90 (Ala. Civ. App. 1999) (citations omitted).
Additionally, "'"any false and malicious publication, when
expressed in printing or writing, or by signs or pictures, is a libel [if it] …
tends to bring an individual into public hatred, contempt or ridicule …."'"
Butler v. Town of Argo, 871 So. 2d 1, 19 (Ala. 2003) (citations omitted).
Finally, if the depictions "employed in the allegedly libelous publication
are understood to impute dishonesty or corruption to an individual, they
are actionable." Camp v. Yeager, 601 So. 2d 924, 927 (Ala. 1992).
Here, Flickinger does not dispute that the social-media post at the
heart of this lawsuit was in fact written by him. He also does not allege
that the content of that post was manipulated in any way before it was
shared with the partners at WPM.
In order to adequately allege a claim of defamation, Flickinger must
allege that the false association -- i.e., that in making that post he was
doing so as a representative of his law firm -- is what brought him "into
public hatred, contempt or ridicule" or "imput[ed] dishonesty or
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corruption" to him. Nowhere in his second amended complaint, however,
does Flickinger allege that the "counterfeit" social-media profile
associated with the post generated such outrage and hatred. Instead, it
was the content of his post that he alleges generated such outrage and
hatred. Thus, under these circumstances, Flickinger has failed to
demonstrate that the "counterfeit" social-media profile associated with
the post at issue amounted to defamation.
However, in his complaint Flickinger also points to other
statements about him that were posted by members of the "private"
Facebook group that he alleges were defamatory, including a statement
that he was a racist. Although Flickinger appears to concede that the
King defendants did not author any of these statements, he nevertheless
alleges that the King defendants conspired with the creators of the
"private" Facebook group to make such statements and then transmitted
them to WPM.
Flickinger argues that, given the intense social unrest in June
2020, there is even greater reason to construe these allegations as raising
valid defamation and conspiracy claims. In support of his contention,
Flickinger cites Gibson Bros. v. Oberlin College, 187 N.E.3d 629 (Ohio
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Ct. App. 2022), in which the Ohio Court of Appeals affirmed a defamation
judgment in favor of a plaintiff bakery against Oberlin College based on
the fact that college employees had distributed flyers created by nonparty
students that labeled the bakery as a "RACIST establishment with a
LONG ACCOUNT OF RACIAL PROFILING AND DISCRIMINATION"
at a 200-300 person protest held shortly after an incident involving the
arrest of a black Oberlin student who was subdued by a bakery employee
after the employee had witnessed the student shoplifting. Id. at 639. In
support of its holding, the Ohio Court of Appeals emphasized the
importance of the broader societal context of the ongoing campus tension
over "racial injustice" that served to amplify the reputational harm to the
bakery and the force of the false accusations of racial profiling against
the bakery. Id. at 645.
In response, the King defendants contend that accusing someone of
being a racist is nothing more than an opinion and is, therefore, not
actionable. Specifically, they argue that a false and defamatory
statement must be a statement of fact and that, therefore, the expression
of an opinion cannot be deemed "'actionable defamation.'" Williams v.
Marcum, 519 So. 2d 473, 477 (Ala. 1987) (plurality opinion) (quoting the
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trial court's order). Although the King defendants acknowledge that our
appellate courts have not squarely addressed the question whether
accusing someone of being "racist" can be defamatory, they note that, in
Logan v. Sears, Roebuck & Co., 466 So. 2d 121 (Ala. 1985), this Court
held that a reference to a gay man as being "queer as a three-dollar bill"
did not amount to defamation.
Further, the King defendants provide many pages of citations to
decisions from other jurisdictions that hold that a statement regarding
whether someone is "racist" or "supports racism" is a statement of opinion
and is thus not actionable as defamation. See, e.g., Stevens v. Tillman,
855 F.2d 394, 402 (7th Cir. 1988) (noting that calling someone a racist "is
not actionable unless it implies the existence of undisclosed, defamatory
facts"); Cummings v. City of New York, No. 19-cv-7723(CM)(OTW), Feb.
4, 2020 (S.D.N.Y. 2020) (not reported in Federal Supplement) (holding
that reference to plaintiff as racist does not have a "precise meaning
capable of sustaining a defamation action"); Jorjani v. New Jersey Inst.
of Tech., No. 18-cv-11693, Mar. 12, 2019 (D.N.J. 2019) (not reported in
Federal Supplement) (recognizing that an allegation of racism alone is
not actionable but that, if a statement falsely implies that someone is
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engaging in specific acts, such as making racist statements or refusing to
employ a person of a certain race, it may be defamatory); and Squitieri v.
Piedmont Airlines, Inc., No. 3:17CV441, Feb. 16, 2018 (W.D.N.C. 2018)
(not reported in Federal Supplement) (holding that statements indicating
that the plaintiff is racist are "clearly expressions of opinion that cannot
be proven as verifiably true or false"); see also 3 Dan B. Dobbs et al., The
Law of Torts § 572 (2d ed. 2011) ("'[R]acist' is sometimes said to be mere
name-calling and not actionable in some contexts[; however,] the term
can be actionable where it plainly imputes acts based on racial
discrimination."); 50 Am. Jur. 2d Libel and Slander § 200 (2017).
In the present case, third parties calling Flickinger a racist in
response to his statement amounts to nothing more than the expression
of their opinions. The third-party statements identified in Flickinger's
complaint and quoted earlier in this opinion do not indicate or imply that
Flickinger committed racially discriminatory acts, which, as the caselaw
above indicates, could change the analysis of the issue.3 Although we
3We note briefly that, although other alleged posts by members of
the "private" Facebook group alleging that Flickinger had a history of
committing professional-ethics violations might well be actionable, see
Tanner v. Ebbole, 88 So. 3d 856, 857-68 (Ala. Civ. App. 2011) (affirming
defamation judgment in favor of plaintiff tattoo artist when defendants
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should not be understood as condoning the casual use of such a powerful
label, in the present case, the third parties' use of the term "racist" is not
actionable as Flickinger's claims are currently pleaded. The language in
some of the other posts about Flickinger made by members of the
"private" Facebook group, while ill-considered, are likewise not
actionable defamatory statements. In Logan, this Court stated:
"'Our manners, and with them our law, have not yet
progressed to the point where we are able to afford a remedy
in the form of tort damages for all intended mental
disturbance. Liability of course cannot be extended to every
trivial indignity. There is no occasion for the law to intervene
with balm for wounded feelings in every case where a flood of
billingsgate is loosed in an argument over a back fence. The
plaintiff must necessarily be expected and required to be
hardened to a certain amount of rough language, and to acts
that are definitely inconsiderate and unkind. There is still, in
this country at least, such a thing as liberty to express an
unflattering opinion of another, however wounding it may be
to his feeling; and in the interest not only of freedom of speech
but also of avoidance of other more dangerous conduct, it is
still very desirable that some safety valve be left through
which irascible tempers may blow off relatively harmless
steam.'"
466 So. 2d at 124 (quoting W. Prosser, Law of Torts 54-55 (4th ed. 1971)).
displayed false statements suggesting the plaintiff's methodology
violated best health and safety practices), the statements pleaded in
Flickinger's complaint and quoted above speculate about whether
Flickinger's behavior was ethical but do not actually state that he has
committed any professional-ethics violations.
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Because Flickinger has failed to demonstrate that the posts at issue
constitute defamatory statements, he has failed to meet the first element
for a defamation cause of action. We, therefore, need not address the
remaining elements of such a claim and conclude that the trial court
properly dismissed this claim.
II. Tortious Interference
Next, Flickinger contends that the trial court erred in dismissing
his tortious-interference claim. The elements of a prima facie tortious-
interference claim include: "(1) the existence of a protectible business
relationship; (2) of which the defendant knew; (3) to which the defendant
was a stranger; (4) with which the defendant intentionally interfered;
and (5) damage." White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5,
14 (Ala. 2009).
Historically, Alabama has recognized the employer-employee
relationship as a type of "protectible business relationship" underlying a
tortious-interference claim. See generally Gross v. Lowder Realty Better
Homes & Gardens, 494 So. 2d 590, 593 (Ala. 1986) (noting that
interference with an employer-employee relationship can form the
underlying basis for a tortious-interference cause of action); and James
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S. Kemper & Co. Se. v. Cox & Assocs., Inc., 434 So. 2d 1380, 1386 (Ala.
1983) (same).
Here, it is undisputed that Flickinger was employed by WPM and,
thus, that a protectible employer-employee relationship existed. It is also
undisputed that the King defendants were aware of this relationship
because they were the ones who reached out to Flickinger's supervising
attorney and shared the Facebook post at issue with him. They were also
strangers to that relationship because neither King nor the King law firm
have any affiliation with WPM. Finally, it is undisputed that Flickinger
has suffered damage because he has lost his job.
What is disputed, however, is whether Flickinger adequately
alleged that the King defendants "intentionally interfered" with his
employer-employee relationship with WPM. Flickinger points to two
"tweets" that the King defendants allegedly made, gloating about the
firing of other private citizens and about his discharge from WPM, along
with a direct message that was sent to him from the King law firm
Twitter account the night before his employment was terminated in
support of his contention that the King defendants "intentionally
interfered" with that relationship. Flickinger asserts that these
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allegations alone sufficiently plead a claim that the King defendants
intentionally interfered with his employer-employee relationship with
WPM.
Relying on this Court's decision in S.B. v. Saint James School, 959
So. 2d 72 (Ala. 2006), the King defendants argue, however, that to
sufficiently plead an allegation of intentional interference a plaintiff
must allege that the defendant "coerced" a third party into acting against
the plaintiff. According to the King defendants, like in Saint James
School, there is nothing in this case indicating that they "coerced" WPM
into terminating Flickinger's employment. Instead, they contend that
they merely "alerted" WPM to Flickinger's Facebook post that had been
shared on the "private" Facebook page and that they were acting with
the best interests of WPM in mind. They also emphasize that at no point
did they suggest that WPM confront Flickinger about his post or take any
disciplinary action against him in light of that post. According to the King
defendants, their only motivation in sharing this information was to
protect WPM from being falsely labeled as a racist business. In support
of these contentions, the King defendants point to affidavits filed by WPM
partners that the King defendants submitted in support of a motion to
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change venue in which those WPM partners state that the King
defendants did not ask that Flickinger's employment be terminated. 4
The King defendants' reliance on Saint James School in support of
its contention here is misplaced. In White Sands Group, supra, this
Court specifically overruled older opinions, including Saint James
School, that required a party asserting a tortious-interference claim to
make "a showing of fraud, force, or coercion." 32 So. 3d at 14.
Additionally, contrary to the King defendants' contentions, Flickinger
has asserted allegations in his complaint that would support an inference
of intent to interfere with his employer-employee relationship with WPM,
at least at the pleading stage. We also cannot ignore the fact that the
termination of Flickinger's employment occurred almost immediately
4The affidavits cited by the King defendants are not properly before
this Court. The trial court did not convert the motion to dismiss into a
summary-judgment motion -- something that would have required notice
and compliance with the requirements of Rule 56, Ala. R. Civ. P. In fact,
the trial court did not even indicate that it considered the affidavits.
Thus, we do not consider the affidavits. The King defendants argue that
we can consider them because they were appended to the mandamus
petition previously filed in this action (concerning venue), and they cite
Ex parte Alabama Power Co., 280 Ala. 586, 196 So. 2d 702 (1967), in
support of their position. However, Alabama Power was decided before
the Alabama Rules of Civil Procedure were adopted and concerned a
unique procedural posture (presuit discovery). It is of no precedential
value in this case and is contrary to current Alabama law.
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after WPM was contacted by King. See, e.g., Thomas v. Williams, 21 So.
3d 1234 (Ala. Civ. App. 2008) (reversing judgment dismissing
intentional-interference claim when firing of employee occurred soon
after phone call from defendant to employer). Based on the foregoing, we
conclude that the trial court erred in dismissing Flickinger's tortious-
interference claim.
III. Invasion of Privacy
Flickinger next contends that the trial court erred in dismissing his
invasion-of-privacy claim. This Court has defined the tort of invasion of
privacy as the "'intentional wrongful intrusion into one's private
activities in such a manner as to outrage or cause mental suffering,
shame, or humiliation to a person of ordinary sensibilities.'" Rosen v.
Montgomery Surgical Ctr., 825 So. 2d 735, 737 (Ala. 2001) (quoting
Carter v. Innisfree Hotel, Inc., 661 So. 2d 1174, 1178 (Ala. 1995)). The
tort of invasion of privacy consists of four limited and distinct wrongs:
"'(1) intruding into the plaintiff's physical solitude or
seclusion; (2) giving publicity to private information about the
plaintiff that violates ordinary decency; (3) putting the
plaintiff in a false, but not necessarily defamatory, position in
the public eye; or (4) appropriating some element of the
plaintiff's personality for a commercial use.'"
Saint James School, 959 So. 2d at 90 (quoting Johnston v. Fuller, 706 So.
27SC-2022-0721
2d 700, 701 (Ala. 1997)). Each of these categories has distinct elements,
and each category "'establishes a separate privacy interest that may be
invaded.'" Regions Bank v. Plott, 897 So. 2d 239, 243 (Ala. 2004) (quoting
Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1065 (Colo. App. 1998)).
Flickinger argues that the King defendants invaded his privacy (1)
by putting him in a false position or "false light" in the public eye and (2)
by appropriating some element of his personality for a commercial use.
We will address each argument in turn.
First, a party may be subjected to liability under a false-light
invasion-of-privacy claim when that party
"'"gives publicity to a matter concerning another that places
the other before the public in a false light … if
"'"'(a) the false light in which the other was
placed would be highly offensive to a reasonable
person, and
"'"'(b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized
matter and the false light in which the other would
be placed.'"'"
Regions Bank, 897 So. 2d at 244 (citations omitted; emphasis added).
This Court has explained that a party "gives publicity" to a matter by
showing that false and highly offensive material has been communicated
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"'to so many persons that the matter must be regarded as substantially
certain to become one of public knowledge.'" Butler, 871 So. 2d at 13(quoting Restatement (Second) of Torts § 652D cmt. a (Am. L. Inst. 1977))
(emphasis added).
In his second amended complaint, Flickinger alleged that the King
defendants and their coconspirators in the "private" Facebook group
"deliberately created, manufactured, and published, shared,
and/or distributed images falsely and maliciously describing
the Plaintiff in his professional capacity and/or as a corporate
representative of his former employer as a 'racist,' 'a business
that supports racism,' a person who has advocated for running
over protestors, and as a lawyer who has committed ethics
violations among a group of at least 1,500 people for the stated
purpose of 'eras[ing]' the Plaintiff or to pressure Plaintiff's
former employer into terminating the Plaintiff's employment
relationship."
However, we cannot say that publication of statements to this "private"
group would make those statements essentially "public knowledge." In
fact, as the King defendants point out, 1,500 is a tiny fraction of the
population of Jefferson County. They further note that, since being fired
from WPM, Flickinger himself has publicized this dispute on other social-
media platforms. Moreover, with regard to the statements made by
members of the "private" Facebook group that Flickinger was a "racist,"
we cannot say that those statements, in these circumstances, are "highly
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offensive." Under these circumstances, Flickinger failed to allege a claim
of invasion of privacy based on "false light." 5
With regard to commercial appropriation, this Court has previously
stated:
"Restatement (Second) of Torts, § 652C, states that liability
for this wrong arises when one's name or likeness is
'appropriated' by another to the other's 'use or benefit.'
Comment d to this section states, in part:
"'No one has the right to object merely because his
name or his appearance is brought before the
public, since neither is in any way a private matter
and both are open to public observation. It is only
when the publicity is given for the purpose of
appropriating to the defendant's benefit the
commercial or other values associated with the
name or the likeness that the right of privacy is
invaded.'"
Schifano v. Greene Cnty. Greyhound Park, Inc., 624 So. 2d 178, 181 (Ala.
1993). To illustrate, in Schifano, patrons of a dog-racing park were
photographed as they sat in a section of the park that could be reserved
5We should not be understood as holding that publicizing a matter
to only 1,500 persons is never sufficient to support a false-light invasion-
of-privacy claim. Compare Butler v. Town of Argo, 871 So. 2d 1, 13 (Ala.
2013) (noting that distributing a handbill to a "large" number of people
might satisfy the publicity requirement). However, at least in this
context, publishing matters to this "private" Facebook group regarding a
plaintiff living in the metro Birmingham area did not make those matters
essentially "public knowledge."
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by interested groups. The park printed the photograph in an advertising
brochure. The patrons in the photograph were not identified by name.
The photograph was taken by a camera mounted on a tripod in full view
of, and only a few feet from, the patrons being photographed.
The patrons sued the park, alleging invasion of privacy based on
commercial appropriation of their likenesses. The trial court entered a
judgment for the park.
As the quote above indicates, this Court, quoting the Restatement
(Second) of Torts § 652C cmt. d, noted that "'[i]t is only when the publicity
is given for the purpose of appropriating to the defendant's benefit the
commercial or other values associated with the name or the likeness that
the right of privacy is invaded.'" Schifano, 624 So. 2d at 181. Because
there was "no unique quality or value in the [patrons'] likenesses that
would result in commercial profit to the [p]ark simply from using a
photograph that included them," id., this Court concluded that the
patrons could not prevail.
In his second amended complaint, Flickinger alleged:
"[T]he Defendants maliciously appropriated misleadingly
manipulated elements of the Plaintiff's personal likeness for
the commercial purpose of pressuring Plaintiff's former
employer into terminating its business relationship with the
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Plaintiff. Defendants further maliciously appropriated and
misleadingly manipulated elements of the Plaintiff's personal
likeness for the commercial purpose of flexing their power and
influence within the Alabama workers' compensation bar to
serve as the political and ideological gatekeepers of those who
may earn a living practicing workers' compensation defense
law while also practicing fundamental First Amendment
freedoms of speech and thought."
Other than accusing the King defendants of "maliciously" and
"misleadingly" appropriating his "personal likeness for the commercial
purpose of pressuring [his] former employer into terminating its business
relationship" with him and "for the commercial purpose of flexing their
power and influence within the Alabama workers' compensation bar,"
Flickinger does not otherwise allege any "unique quality or value in [his
social-media presence] that would result in commercial profit to" the
King defendants. Id. at 181. Thus, under these circumstances, Flickinger
has failed to allege that his privacy was invaded in this way.
Based on the foregoing, the trial court properly dismissed
Flickinger's invasion-of-privacy claim.
Conclusion
For the foregoing reasons, we affirm the trial court's judgment
insofar as it dismissed Flickinger's defamation and invasion-of-privacy
claims. However, we reverse the trial court's judgment insofar as it
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dismissed Flickinger's tortious-interference claim, and we remand the
cause for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur.
33