Suit against state senator moves forward over online post

Neither the Communications Decency Act (CDA) nor the doctrine of legislative immunity provided a basis to dismiss a false light invasion of privacy action against a state senator who posted about the plaintiff online in the wake of a mass shooting, the Western District of the U.S. District Court ruled on October 7.

On Feb. 14, 2024, one person was killed and about two dozen wounded during a mass shooting near Union Station in Kansas City. The gun violence erupted as thousands of people had gathered for a parade celebrating the Kansas City Chiefs’ Super Bowl LVIII victory.

Denton E. Loudermill Jr. attended the victory parade. He heard the gunshots and tried to move to a safe location. Responding police stopped Loudermill as he attempted to leave, told him that he was moving “too slow,” handcuffed him and sat him on a street curb.

As Loudermill sat on the curb, people began taking pictures of him, which were posted and shared on the social media platform X. Loudermill was eventually released and neither charged nor cited with any crime or offense.

On or about Feb. 15, Denny Hoskins, a Missouri state senator, reposted an X post originally authored by Deep Truth Intel. The post featured a photo of Loudermill and stated, “The Kansas City Chiefs Super Bowl Parade shooter has been identified as 44-year-old Sahil Omar, an illegal immigrant.”

Hoskins’ post added: “Fact — President Biden’s @POTUS open border policies & cities who promote themselves as Sanctuary Cities like @KansasCity invite violent illegal immigrants into the U.S. Fact — Violent illegal immigrants with guns are exactly why we need the 2A. I have the right to protect my … show more.”

Contrary to the post, Loudermill was not a violent illegal immigrant or connected to the shooting.

He filed suit against Hoskins, alleging false light invasion of privacy. Unrelated to the shooting, Loudermill passed away and his personal representative, Reba Paul, was substituted in the case.

Hoskins filed a motion to dismiss, asserting that the suit failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) and that the court lacked subject matter jurisdiction.

Chief U.S. Magistrate Judge Willie J. Epps Jr. denied the motion.

Hoskins argued that he was entitled to immunity under the CDA and that Paul failed to allege sufficient facts.

In opposition, Paul told the court that Hoskins was an “information content provider” under the CDA because he wrote the post at issue and was therefore not protected from liability.

The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

Paul’s complaint alleged that Hoskins was the author of the post beginning with the word “Fact.”

“Mr. Hoskins is an information content provider as to his post,” the court wrote. “Accordingly, Mr. Hoskins is not entitled to immunity under the CDA for his own post.”

Hoskins countered that Paul sought to hold him liable for information provided entirely by Deep Truth Intel, characterizing his words on X as a “comment” on the Deep Intel Post.

“Whether Mr. Hoskins’ words on X constitute a ‘post’ or a ‘comment’ is a factual question,” the court said. “At this point in the litigation, all the factual allegations in Ms. Paul’s Amended Complaint are accepted as true, and reasonable inferences are drawn in her favor.”

Hoskins also argued that the words that provided the basis for the false light claim — namely, “illegal immigration” and “shooter” — do not appear in his post at all, but came from Deep Truth Intel.

The issue of CDA immunity turns on whether a defendant is responsible, in whole or in part, for the creation or development of the particular postings relating to the plaintiff that are the subject of the lawsuit, the court explained, which is a broad definition, covering even those who are responsible for the development of content only in part.

“Development” is not defined by the CDA, although many courts have taken it to mean that a website or information content provider “helps to develop unlawful content … if it contributes materially to the alleged illegality of the conduct,” the court said, adding that the 8th U.S. Circuit Court of Appeals has not yet spoken on the issue.

“Though his post does not use the word ‘shooter,’ it clearly refers to ‘violent illegal immigrants with guns,’ and contains a picture of Mr. Loudermill handcuffed and seated on the curb,” the court wrote. “Mr. Hoskins’ argument that the information providing the basis for Ms. Paul’s false light claim is ‘exclusively contained within[] the online post of a third party’ is false.”

“Ms. Paul has alleged that Mr. Hoskins’ post itself cast Mr. Loudermill in a false light and does not seek to hold him liable for the Deep Truth Intel post. Mr. Hoskins is responsible at least in part for the creation or development of the particular post relating to Mr. Loudermill at the heart of this lawsuit.”

The court also rejected Hoskins’ argument that the court lacked subject matter jurisdiction based on the doctrine of legislative immunity.

An act is not legislative just because it is performed by a legislator, the court pointed out, and Hoskins’ post was not made as part of a speech or debate on the Missouri Senate floor, as an “integral part of the deliberative and communicative process by which [legislators] participate in … the consideration and passage or rejection of proposed legislation” nor was it pending legislation.

Therefore, his post “falls outside of the legislative sphere and is not a ‘legislative act,’” the court said.

Arthur A. Benson of Arthur Benson & Associates in Kansas City, who represented Paul, declined to comment on the decision given the ongoing litigation.

The Attorney General’s Office, with Samuel C. Freedlund representing Hoskins, did not respond to a request for comment.

The case is Paul v. Hoskins, No. 2:25-CV-4032-WJE.