Can A Tarot Card Reading Be Defamatory?

I know I’m like a broken record about it: defamation requires a provably false statement of fact, as opposed to a statement that cannot be proven true or false, like an opinion, an insult, hyperbole or rhetoric not intended to be taken factually, and so forth.

That doesn’t mean that statements couched as opinions cannot be defamatory — they can be, if they state or imply the existence of provably false underlying facts:

• “Ken is an idiot” is a non-defamatory opinion.

• “Based on my review of his private papers, Ken is an idiot” is almost certainly still non-defamatory opinion because it doesn’t imply the existence of any defamatory undisclosed facts, just the reader’s purely subjective interpretation.

• “Based on my review of his papers, in my opinion Ken is a convicted squirrel-importuner” is potentially defamatory, because it implies the existence of a false fact (the presence, in my papers, of evidence of a conviction for squirrel-importunity, which is a misdemeanor except in Mississippi and Pennsylvania).

• Similarly “based on my review of this record showing his conviction for squirrel-importuning, Ken is a danger to the squirrel-American community” is defamatory if the record is fabricated, because then the opinion portion is based on a provably false statement of fact.

So far, so (relatively) simple. Opinions based on disclosed true facts are protected speech — even if they are completely irrational. As a typical case says, “[E]xpression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.” Piccone v. Bartels, 785 F.3d 766, 774 (1st Cir. 2015). Hence, “because Ken got a B in ‘Laws of War’ in law school, likely because it was a 24-hour take-home exam but he was so thoroughly sick of law school he went out drinking and just bullshitted his way through it a few hours before the deadline, I believe he’s probably a squirrel importuner” is completely irrational, but also completely protected.

But what about when the basis for the opinion is magic?

Professor Rebecca Scofield of the University of Idaho, the chair of the University’s history department, has sued Ashely Guillard, a Tik-Tok personality, for defamation in federal court in Idaho. Guillard, a weirdo-American, “promotes herself on Amazon and TikTok as an Internet sleuth that solves high-profile unsolved murders by consulting tarot cards,” according to Scofield’s lawsuit. In the wake of a gruesome murder of four students at the University, Guillard released a series of TikTok videos asserting that Professor Scofield plotted and ordered the murders and was in a prohibited personal relationship with one of the students. There seems to be no dispute — except from Guillard — that this is entirely fabricated and has no basis in reality. Guillard seems to have picked Scofield for this tirade out of mental illness or mercurial social media caprice.

Is it defamatory to offer an opinion based on magic? Is it defamatory to say that you saw in a dream that someone committed a crime? Is it defamatory to say that tarot cards told you that someone committed a crime? What about the entrails of a sheep? What about if you say God told you after you prayed over it? Is your interpretation of tarot cards a potentially false “fact”?

This will probably turn on the specific language Guillard used in her TikTok videos and her subsequent crass publicity tour. Defamation analysis is based on a careful review of the words used and the context in which they were used. To the extent that Guillard expressly says that she believes Scofield had a prohibited relationship with a student and ordered the murders because that’s how Guillard interprets Tarot card readings, that’s a (legally) hard case for Professor Scofield. Guillard is offering an opinion and she’s stating the (completely irrationally, quite likely mentally ill) basis for her opinion. Short of proving that she’s lying about what tarot cards she drew, or lying about her subjective interpretation of them (for instance, she knows a particular card means wealth, but she’s lying and saying it means death), it’s hard to see how Professor Scofield can show her subjective interpretation of a tarot card reading is provably true or false. I did some research (of course I did) but was unable to find any cases discussing the status of an opinion based on disclosed “facts” derived from magic, psychic powers, or the occult.

Ironically Professor Scofield’s own complaint reinforces this defense, repeatedly asserting that Guillard’s TikToks “were not based on any facts, or any information known to Guillard.” (Complaint at paragraph 17.)

Professor Scofield may find it easier to prove defamation based on things Guillard said when she wasn’t talking about tarot. Some of the TikToks may have accused Scofield without making it clear that Guillard was offering an opinion based on tarot reasons or other mystical sources. During her post-lawsuit publicity tour, Guillard has been less guarded, saying things like “When I go to court and they see the evidence or they see how I connect the dots, then they’ll make a decision as it pertains to whether they want to continue to live in blinders or believe it. If they don’t, I don’t care.” That, normally, could be taken as implying undisclosed false facts — “evidence” in the total absence of any actual evidence.

Even this approach, though, faces challenges. In determining whether the audience is likely to interpret a statement as one of fact or one of opinion or hyperbole, courts consider a viewpoint of an audience familiar with the speaker, the forum, and the circumstances. Scofield asserts that Guillard is known for “solving” mysteries based on tarot and “readings.” Doesn’t that mean that an audience familiar with her is more likely to interpret anything she says as premised on occult readings, and not on some undisclosed actual evidence?

I don’t know. Professor Scofield has one thing going for her — she’s very sympathetic and Guillard is loathsome, loathsome even in the context of online personalities and content creators. The rule separating fact from opinion is premised, in part, on the presumption that a rational audience will be able to evaluate an opinion based on disclosed facts and reject it if it’s unwarranted. But Professor Scofield’s complaint points out that many of Guillard’s imbecilic followers believe her. Professor Scofield has suffered great distress, and reasonably fears that the sort of freaks and misfits who follow Guillard may pose a physical threat to her. The presumption underlying the rule is dubious in this case.

America’s robust and exceptional protections of speech often come at the expense of actual injustice and suffering, and we shouldn’t pretend otherwise. This is such a case. Guillard’s behavior is morally contemptible. That doesn’t necessary solve the puzzle of whether it’s defamatory.