I. Introduction: When Outrage Meets Doctrine
Every week, someone calls my office ready to “file defamation” because the internet caught fire. Screenshots. Streams. Think-pieces. A sponsor paused. “My reputation is destroyed—sue.” The expectation is that courts police rhetoric the way platforms throttle reach. They do not. The Southern District of New York’s October 9, 2025 decision in Aubrey Drake Graham v. UMG Recordings, Inc. is not a celebrity carve-out; it is a doctrinal mirror held up to our attention economy. The opinion says what many don’t want to hear: in expressive arenas engineered for exaggeration—diss tracks, flame threads, performative beef—listeners do not reasonably expect verified fact. And if the audience doesn’t expect fact, the law will not invent it.
This is a thought-piece, not a case note. I’m interested in how this opinion disciplines expectations, what it teaches about pleading strategy, and why “add more counts” is not a legal theory. If you are shopping a defamation case—or defending one—read this as a map of the terrain rather than a scoreboard.
II. The Record the Court Chose to Hear: Forum, Surrounding Circumstances, Tone
The complaint framed “Not Like Us” as a factual indictment—an assertion that Drake is a “pedophile”—and sought to pin liability on UMG as publisher/promoter. The Court refused to amputate the lyric from its ecosystem. Three interlocking moves matter.
1) Forum. A rap diss track is not a newsroom. New York courts have long treated opinion pages, call-in wars, and social media slap-fights as opinion-dense zones. The audience expectation is adversarial rhetoric, not neutral reportage. That baseline presumption is decisive when a plaintiff needs “fact.”
2) Surrounding circumstances. The Court took judicial notice of the back-and-forth: Drake’s baiting (“Taylor Made Freestyle”), Lamar’s counters (“Euphoria,” “Meet the Grahams”), Drake’s escalation (“Family Matters”), and the cultural coverage tracking each release. That’s not a procedural parlor trick; it is the only honest way to ask the threshold question—what would a reasonable listener think this is? In a running, widely publicized “war of words” where each cut answers the last, the audience hears performance, not deposition testimony.
3) Tone and language. Profanity, metaphor, double-entendre (“A-minor”), violent braggadocio, and stylized visuals (a caged owl; map pins evoking offender registries) are genre signals. They reinforce that this is figurative attack. The Court leaned on the steady New York/Second Circuit line—Steinhilber, Brian v. Richardson, Torain v. Liu, Rapaport v. Barstool—that in heated public feuds even labels that sound factual (“pedophile,” “predator,” “crook,” “lunatic”) read as epithets absent anchoring facts and a fact-signaling forum.
Takeaway: Plaintiffs lose when they try to launder rhetorical combat into factual reporting after the fact. Defendants win when they can convincingly locate the speech in a forum and cycle where the only reasonable reading is “this is how the game is played.”
III. Opinion, Mixed Opinion, and the Temptation to Smuggle “Facts” Through Vibe
Lawyers love “mixed opinion”—the argument that a speaker’s “opinion” implies undisclosed, defamatory facts (“trust me, I have receipts”). The opinion closes that door. Braggadocio like “rabbit hole is deep” is a genre convention, not a warrant that verifiable evidence exists. In the diss-track dialect, the promise to “go further” is posture, not provenance.
Two practical implications:
For plaintiffs: You cannot convert swagger into an evidentiary proffer. If the lyric doesn’t name, date, place, or describe a falsifiable event, “mixed opinion” will not save you.
For defendants: Do not over-argue. Resist the urge to prove the lyric is “true.” Win on context—the safest, earliest exit.
IV. The “Add Counts” Fallacy: Why Harassment and § 349 Couldn’t Rescue the Pleading
When a defamation claim is thin, the instinct is to stack claims. In New York, that often makes things worse.
Harassment in the Second Degree (Penal Law § 240.26). There is no private right of action. It’s a criminal statute enforced by the state. Invoking it in a civil complaint invites dismissal and, worse, signals to the Court that counsel is padding.
GBL § 349 (consumer deception). Plaintiffs tried to recast label hype as “deceptive practices” (boosted streams, influencer spend, payola-esque promotion). Two problems:
(1) Plausibility. “Information and belief,” screenshots, and online rumor don’t survive Twombly/Iqbal. Courts are not going to green-light discovery on cultural vibes.
(2) Consumer orientation/harm. § 349 requires consumer-oriented deception that injures consumers (price/value distortion, induced purchases). “This song charted because the label juiced the promo” isn’t consumer harm; it’s the music business.
Practice note: If your core injury is reputational, stay disciplined. Consumer-fraud statutes are not back doors to defamation.
V. Judicial Notice is Not a Trick—It’s a Filter Against Discovery Theater
The Court took judicial notice of the tracks’ release dates, lyrics, and mainstream coverage to reconstruct how the public actually encountered the speech. Plaintiffs often bristle: “That’s outside the four corners.” Not here. New York and the federal rules permit courts to consider materials incorporated by reference and indisputable public context on a 12(b)(6). The policy is sound: do not force expensive discovery where the only way to make the words actionable is to pretend the audience didn’t know what everyone actually knew.
Defense counsel: Front-load the record of context with clean, citable sources.
Plaintiffs: If context kills you on page one, discovery won’t resurrect you on page three hundred.
VI. What This Means for Clients Who “Want to Sue” (and the Lawyers Who Advise Them)
Clients conflate virality with verifiability. Courts do not. Here is the honest screening rubric I use before I’ll put my name on a defamation complaint:
Falsifiable facts or just labels?
“On May 3 at 8:12 p.m., X said I stole $50,000 from Account Y,” is actionable. “He’s a thief” in a roast, rant, or diss is probably not.Fact-signaling forum?
Employer memo, press release, police blotter, “we are terminating for embezzlement”—these carry factual gravity. A battle verse, stream chat, or X/Twitter dogpile does not.Audience expectation documented?
Can I persuade a judge, with judicially noticeable materials, that reasonable listeners heard this as reportage? If not, stop.Proof of falsity now, not later.
You need documents and witnesses at intake. Courts will not let you “find the facts” in discovery where the forum screams “opinion.”Damages you can count.
Identify concrete losses (job, contract, sponsors) and causal linkage to the precise statements. Screenshots of comments are not a damages model.No statutory gimmicks.
If you’re stapling consumer-fraud or “harassment” to a reputation injury, you’re telling the Court you know your defamation count is weak.
Translation: Most internet injuries sound like defamation, feel like defamation, and fail as defamation.
VII. Industry Implications: Music, Platforms, and the Economics of “Opinion”
This ruling is going to be cited in every music-speech case for the next cycle, not because it blesses cruelty, but because it calibrates liability to genre. That matters for three stakeholder groups:
Artists. The safest lyric is still the one you can prove true, but this opinion recognizes diss as diss. The immediate risk is less litigation and more platform policy.
Labels/Platforms. The § 349 failure is a warning: “promotion” is not suddenly consumer fraud because it worked. But paid manipulation with consumer harm could look different. Keep disclosures clean; keep bots out of your narrative.
Targets. Litigation won’t fix a cultural phenomenon engineered for speed and spectacle. Leverage platform tools, contractual morality clauses, and targeted corrections. Pick your battles: law where the forum is factual, comms when the forum is performative.
VIII. Pleading Architecture: How I Would Draft (and Defend) After Graham
For Plaintiffs (rare viable cases):
Anchor the claim in specific, verifiable statements issued in fact-signaling channels (press releases, HR communications, news articles).
Plead falsity with particularity; attach or quote the documents.
Establish audience expectation (this forum presents itself as fact) with judicially noticeable materials.
Lay out damages granularly: who canceled, when, how much.
Do not pad with inapposite statutes.
For Defendants:
Move early. Lead with context and judicial notice.
Do not “prove truth” unless necessary—win on opinion.
Isolate puffery, metaphor, and genre signals; cite Steinhilber, Brian, Torain, Rapaport.
Slash ancillary counts (no private harassment tort; § 349 consumer-harm gap; pleading on “information and belief” without facts).
IX. The Limits of Law and the Work of Counsel
Courts are not content moderators. That is not cynicism; it is constitutional design. Graham v. UMG reaffirms a simple proposition: the First Amendment and New York doctrine protect caustic opinion—especially in spaces where the audience expects it. The remedy for most rhetorical injuries remains more speech, better speech, targeted speech, and occasionally the quiet resolution that spares a client eighteen months of fees to learn what this opinion says in twenty pages.
If your dispute lives in the world of lyrics, stand-up, streams, or beef, ask the hardest question first: what would a reasonable listener—not your supporters or your detractors—understand this to be? If the answer is “opinion,” your best lawyer is strategy, not summons.
X. Closing
Graham is not permission to defame; it is permission to recognize what the forum already told us. In a culture that monetizes escalation, context is king. Bring me falsifiable facts delivered as facts with damages I can count, and we’ll litigate. Bring me a diss and a dogpile, and we’ll win another way.
Read the Court Opinion