How to Talk About True Crime Without Getting Sued
About a week after four students were murdered at the University of Idaho, Ashley Guillard began posting videos on TikTok detailing her theory of the case — that a professor named Rebecca Scofield had conspired with a student to carry out the murders.
Guillard, a tarot card reader and "internet sleuth," posts on TikTok under an account called Ashley Solves Mysteries. She often posts videos discussing murder cases, basing her theories on her self-described psychic abilities. But the way she tells it, these are not theories; they are facts. So it's no surprise that she now faces a defamation lawsuit from Scofield.
Lucky for us, Guillard's case provides great examples of what not to do when producing content about true crime.
'Allegedly' Is Your Best Friend
Accusing someone of a crime falls under defamation per se, an altered defamation standard that doesn't require the victim to prove any actual injury. Instead, the court assumes that being falsely accused of a crime damaged their reputation. So folks out there discussing true crime must be especially careful about what they say.
This is why you'll often hear true crime podcasters and others in this realm use cautious language when they're discussing ongoing cases. Even in this blog post, note how many times we use words like "could," "probably," and "might." Sure, it's not as exciting as saying exactly what we think will happen, but at least we get to keep our jobs.
Guillard uses definitive language in her videos about the murders, which doesn't bode well for her defense in this defamation case. She says things like, "Rebecca Scofield ordered, planned, initiated, and executed the murder of the four University of Idaho students."
According to Guillard, these accusations are not her opinion; they are facts she gleaned from using her gifts as a psychic. And that's exactly what could get her into a lot of trouble in this case. Stating your opinion on a case probably won't get you slapped with a defamation suit. But stating with certainty that someone is a murderer might.
In one video, Guillard almost protects herself by saying, "this is the teacher who potentially had the four Idaho students killed." But then she follows that statement with, "She's the one who ordered the execution."
However, the fact that Guillard presents herself as a psychic and tarot card reader could work in her favor. If she can prove that people who watch her videos don't truly believe in her abilities, that could help her case.
Don't Double Down
Yes, the First Amendment protects freedom of speech. But if you're producing content about true crime, it's important to take litigation threats seriously.
In late November, Scofield's attorneys sent Guillard at least one cease-and-desist letter related to her videos. However, getting a letter like this doesn't necessarily mean you'll be sued. It's important to take them seriously, but don't panic. However, posting about it on social media is not a good idea, especially if that party goes on to sue you.
Guillard continued publicly discussing her theory about Scofield even after things escalated to a lawsuit, posting another video on TikTok saying she was "gleaming with excitement" about the defamation case. She says she looks forward to presenting her ideas about the murders in court. But hopefully, her attorney (if she hires one) will explain that that's not exactly how this works.
Truth is a defense to defamation, so Guillard could try to prove the claims she presents in her videos. But the burden is on her to prove that what she says about Scofield is true, not on Scofield to prove her innocence. And messages from the spirit world are generally not accepted as evidence in a court of law.
This brings us to our last point:
Speak to an Attorney
If things do go this far, and someone files a claim against you for accusations you make online, it's probably in your best interest to talk to an attorney. As we saw with the Johnny Depp vs. Amber Heard debacle, defamation cases can get dicey really fast.
A lawyer can help you preserve your free speech rights and keep the situation from getting worse. Or they might tell you that the cease-and-desist letter is just a scare tactic, and you can ignore it. Either way, better safe than sorry.
- A True Crime Episode About a Fake Murder (FindLaw's Don't Judge Me Podcast)
- Can Congress Ban TikTok? (FindLaw's Courtside)
- What Sally McNeil and Brittany Smith's Murder Cases Teach Us About Self-Defense (FindLaw's Legally Weird)
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