Court Decisions

Is it Defamatory to Call Someone “Racist”?

In today’s political climate, “racist” is the go-to pejorative in most every conversation. The moment one person feels that they are losing the argument, they call the other a racist. In fact, the use of the term is so common that one court has held that the term has become “meaningless.”

“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The word has been watered down by overuse, becoming common coin in political discourse.” Kimura v. Vandenberg.

Even outside of politics, “racist” is frequently employed to add extra sting to any criticism. I frequently see Yelp reviews where there is no apparently context for the use of the word, but it is used nonetheless, almost as an afterthought. “He did a terrible job cutting my hair. Oh, and he is a racist too.”

So, the question presented by this article:

Is it defamatory to call someone “racist”?

As always, we must begin with the elements of the claim. The elements of defamation are: “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Price v. Operating Engineers Local Union No. 3.

However, the second element, falsity, is subject to further clarification.The false statement must be verifiably false. Overstock.com, Inc. v. Gradient Analytics, Inc.  It is for this reason that cases have routinely held that calling someone a racist is not defamatory, because it is not verifiably false. There is no measure we can use to determine the truth or falsity of the statement, because it will always be a matter of opinion.

Some callers will offer all the ways they can prove that they are not a racist, including a spouse and children who belong to the race in question, years of fighting for the rights of that race, a Nobel Peace Prize for the work they have performed fighting for equal rights, and thousands of friends belonging to the race. (I obviously exaggerate to make the point.)

None of that defeats a claim of racism, at least as to the person making the claim. If that person claims the Barista at the Starbucks is a racist because they misspelled their name on the cup, who is to say that is not true?

“But I just misheard your name.”

“Then you’re a racist for not asking me to repeat it or asking for the proper spelling.”

“But the point is just so the person knows which cup is theirs; it’s not about the spelling.”

“So you don’t care how minorities spell their names? Racist.”

Ultimately, whether or not someone is a racist is always a matter of opinion, and the cases have so held. But there is a way a claim of racism can be actionable, as explained in the case of Overhill Farms, Inc. v. Lopez.

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No, I Wasn’t Kidding About the Wisdom of Walking Away

Internet Defamation - Take the Settlement Fool

Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action.  I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.

You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later.  My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage.  The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.

Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away.  There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction.  But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim.  My client declined.

With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days.  Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client.  In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.”  He suggested the parties and attorneys talk settlement again.  My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding.  Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy.  Ouch.

If you got the tie-in between the photo above and the article, give yourself a prize.  It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline.  I think I may start dressing like that for settlement conferences.

Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away

Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.

The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:

I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.

Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.

Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”

That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.

In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.

Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”

 

P.S. I hadn’t noticed this point until I listened to the trailer for this article. He’s talking to his daughter, and she says, “Oh my God, they got Amanda.” He then gives the above speech to the bad guy. What I hadn’t focused on was the line, “If you let my daughter go now, that will be the end of it.” No mention of Amanda. He knew about Amanda, but apparently was willing to let the kidnappers keep her if they let his daughter go. Very dark.

Court tosses lawyer’s libel suit over ‘The Good, The Bad and The Ugly’

TORONTO – Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”

In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.

“In our view, this defamation action was ill-conceived,” the Appeal Court said.

Source: The Hamilton Spectator

Two lessons from this Canadian case. First, consider whether your colorful writing style is going to get you into trouble, and second that context is everything.

Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”

In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.

“In our view, this defamation action was ill-conceived,” the Appeal Court said.

Midanik’s complaint against the Toronto Star writer and publisher John Wiley & Sons turned on a paragraph in Powell’s book about a Toronto street gang, the Galloway Boys.

In one paragraph, the author wrote that the lawyer — he was acting for one of the gang members accused of murder — identified with Tuco Ramirez in the 1966 Italian spaghetti western classic, and paraphrased a quotation from the character, saying, “I like big men because they fall hard.” Midanik took offense at this comment, and sued for defamation. He argued that by equating him with Tuco Ramirez, the author implied that he was a murderer, rapist, dishonest and sleazy.

The case was doomed to failure, both legally and conceptually.

When one quotes from a fictional character, that does not mean or even imply that the quote is meant to pull in all the traits of the character in question. If I’m doing a hockey story, and I show a player making a slap shot, with the caption, “Say hello to my little friend,” am I implying that the hockey player is a drug lord?

The trial court and Court of Appeal agreed with my interpretation, and dismissed the case. Under Canadian law, the loser pays, so this ill-conceived case (the court’s words) cost the thin-skinned attorney about 100,000 Canadian dollars, eh.

Firefighter pictured in sex scandal article loses libel claims against Daily News, appeals | Pennsylvania Record

Per the order of a federal judge, the libel lawsuit brought by a Philadelphia firefighter against the New York Daily News earlier this year has been dismissed, though court records indicate he has appealed that verdict.

Source: news.google.com

This was an interesting case that really could have gone either way, and well may be reversed on appeal.

The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.

I would have anticipated that the defamation claim he filed would fail, but he also filed a claim for false light invasion of privacy, and that claim certainly had some merit.

Here is the jury instruction for false light (in California):

1802. False Light

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] publicized information or material that showed [name of plaintiff] in a false light;

2. That the false light created by the publication would be highly offensive to a reasonable person in [name of plaintiff]’s position;

3. [That there is clear and convincing evidence that [name of defendant] knew the publication would create a false impression about [name of plaintiff] or acted with reckless disregard for the truth;]

[or]

[That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its publication;]

4. [That [name of plaintiff] was harmed; and]

[or]

[That [name of plaintiff] sustained harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and]

5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[In deciding whether [name of defendant] publicized the information or material, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information or material was substantially certain to become public knowledge.]

Defamation is an intentional tort, but false light can be established with a showing of negligence. A jury could certainly find that it is negligent to post a picture of a random firefighter in an article about a sex scandal, and that an average reader might assume that the firefighter must in some way be involved with the scandal.

But the judge in Pennsylvania disagreed, and threw out all of Cheney’s claims. The judge found that the photo provided sufficient context such that a reader would know that no link between the photo of Cheney and the sex scandal was intended.

This is an important factor in any defamation (or false light) claim. The fact that a statement or photo can be interpreted in a defamatory sense is not enough. The statement must be given a reasonable interpretation.

Glenn Beck’s audacious defense against Boston Marathon bombings defamation suit

Broadcaster Glenn Beck, formerly of Fox News, was nonetheless suspicious of Alharbi. He thought the Obama administration was hiding Alharbi’s involvement. So three weeks later, Beck urged the government to release its information on Alharbi or else Beck would “expose” him.

“While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three people involved,” Beck said, alleging the U.S. government had “tagged” Alharbi as a “proven terrorist.” Over several broadcasts, Beck called Alharbi the “money man” behind the Boston bombings. “You know who the Saudi is?” Beck asked. “He’s the money man. He’s the guy who paid for it.”

What Beck said about Alharbi was untrue. Alharbi sued Beck for defamation in federal court in late March. And now, in a batch of little-noticed motions, Beck has lashed back, saying Alharbi is trying to “punish” and impede Beck’s First Amendment rights. Beck argues the bombings made Alharbi a “limited purpose” and “involuntary” public figure who must prove not just that Beck made false accusations, but that Beck did it with “actual malice.”

Beck sticks to his guns that the man suing him for defamation had acted “suspiciously.”

Source: www.washingtonpost.com

This appears to the the classic, “I talked about you and made you a public figure, and now that you are a public figure, you have to show what I said about you was said with malice.” I’ll monitor this one and let you know how it is decided.

See on Scoop.itDefamation Law

Morris & Stone Wins $1.5 Million for Internet Defamation Victims

In this case, we represented a business and the individual who owns that business. The defendant, a medical doctor named Pankaj Karan, was starting his own business, MDTelexchange, and traveled to an overseas company also owned by our client (we’ll call that the “foreign company”) and entered into a contract for the creation of some custom call center software.

And that is where the divergence in the two versions of the story begins. Our clients asserted (and proved at trial) that the working software was delivered on time by the foreign company. The defendant, Dr. Karan, claimed otherwise, and blamed the failure of his start-up company on the software. 

Dr. Karan’s claims never made sense, because while the software would have been useful in his business, it was in no way essential. Blaming the software for the failure of the business was akin to saying a business failed due to a lack of business cards. But for whatever reason, Dr. Karan chose to blame our clients, and in an email announced that he was going to “work night and day to inflict the maximum amount of financial pain that is allowed under the law.” To that end, he ignored the fact that his contract was with the foreign company, and instead attacked our client personally, along with his other company, taking to the Internet to trash their reputations.

This is a scenario that I see over and over in defamation cases. Someone becomes unhappy with a business or individual, and decides to criticize them on-line. It might even begin with a laudable motive – just putting out the word to the public to avoid a business that did not satisfy the critic. I will vigorously defend the right of anyone to go on line and publish a legitimate criticism of a business.

But something happens that takes the person beyond a legitimate review. As the person types the words, he or she decides it’s just not stinging enough and won’t cause enough harm. In this case, Dr. Karan must have felt that a legitimate review of the foreign company, stating that in his opinion the software did not work as promised or was not delivered on time, just wasn’t hurtful enough. He posted two articles on his own blog, and sent an email to our clients’ customers. In the email and postings, Dr. Karan’s comments had almost nothing to do with the alleged problems with the software. Indeed, he abandoned his claim that the software was late, and instead claimed that it had never been delivered at all. He added that our client had cheated an employer ten years earlier, and that his company had failed to pay vendors hundreds of thousands of dollars. Although our clients had never received a single complaint from a customer, Dr. Karan claimed that “they are swindlers of the highest kind and have milked many of their clients of money and time.”

At trial, Dr. Karan could not identify a single customer that our clients had “swindled”, he could not identify a single vendor they had failed to pay, could not specify how he had cheated his former employer, and acknowledged that the software was in fact delivered. Today, an Orange County jury, known for being very conservative with damage awards, awarded $1.5 million jointly and individually to both of our clients for the damage to their reputations and business, caused by Dr. Karan.

In a standard civil action, the plaintiff has the burden to prove the case. This is true in a defamation action as well, but since truth is a defense to defamation, the burden of proving a statement is true falls on the defendant. I can’t fathom how defendant thought he would get away with what he published in this email and on his blog, but I think he may have thought he would be safe because we could not prove a negative. In other words, how do you show that you have never defrauded any of your customers? Bring in every customer you have ever worked with to testify that you did not defraud them? That would be impossible, and that is why the law puts the burden on defendant to prove the TRUTH of the statements. Dr. Karan could not prove his statements were true, and was therefore liable for Internet defamation.

Pankaj Karan was admirably represented at various times during the action by Randolph Catanese and Douglas Hume from Catanese & Wells, David R. Calderon from Barth, Berus & Calderon, and Palak Chopra from the Law Offices of Palak Chopra.

[UPDATE — January 2, 2014]  Dr. Karan did not go silently into the good night. His attorneys appealed the $1.5 million verdict, claiming there was insufficient evidence to support an award of that size. To that claim, and in denying the appeal, the court opened its opinion with the sentence, “All things considered, appellant Dr. Pankaj Karan got off cheaply in the trial court.” Better yet, in commenting on our brief, the court stated:

[Dr. Karan] has misstated the record in numerous particulars, as shown in a respondents’ brief so devastating it has left Karan, like Job, with no reply but silence and a hand over his mouth.

It’s Not Defamation if No One Knows it’s You

Sammy Hagar BookAs the old saying goes, if a tree falls in the forest and no one is there to hear it, does it make a sound?* In the context of defamation law, the saying could be, “if no one knows it’s you, is the statement still defamatory?” The answer is no.

I get a surprising number of calls like this. Now that anyone can publish a book with a few mouse clicks, more people are publishing their life stories, and those stories always manage to irritate someone. That someone then calls me, stating that some person in the book is them, and they want to sue for defamation. They go on to explain that the name given is not theirs, that the geographic location given is someplace they have never lived or visited, and the gender has been changed, but they know it’s them and damn it they want to sue. In some cases it is clear that the caller made the whole thing up in their mind, but in other cases it is clear that the person referenced really is the caller. Even so, if the author changed the identity so much that no one would recognize them, there is no case.

Today’s example involves rocker Sammy Hagar. He wrote a book called “Red: My Uncensored Life in Rock“, which tells a story of a woman he had sex with following a concert, who later claimed to be pregnant.  He explains that he paid her some support during the alleged pregnancy, but that no child was ever born and he now thinks the entire thing was simple extortion. Had he named her, that would have supported a claim for defamation since he accuses her of a criminal act, but she is identified only as a “Playboy bunny from California”. Apparently the woman in question was a Playboy bunny, but Hagar changed the state from Michigan to California, perhaps specifically to make her less identifiable.

Nonetheless, the still unidentified “Playboy bunny from California” sued Hagar for defamation and infliction of emotional distress. Not surprisingly, the trial court today threw out the case.

U.S. District Court Judge Linda Reade ruled that Hagar did not defame the woman because he did not refer to her by name in the book – identifying her erroneously as a “Playboy bunny from California” – and the woman did not prove she suffered any financial, reputational or emotional injuries from his statements. Only individuals who already knew about their relationship, not the general public, would have understood Hagar was referring to her in the book, she added.

Although Hagar’s statements in ‘Red’ brought back painful memories for Doe, the evidence does not support a finding that Hagar’s conduct was extreme enough to permit the court to find outrageous conduct sufficient to support Doe’s intentional infliction of emotional distress claim, Reade wrote.

 

* It’s a deep thought, but I’ve always thought it was kind of silly because of course a falling tree makes a sound. The laws of physics don’t stop just because no one is there.

Court Finds that Statement about Cause of Suicide is an Opinion

An interesting defamation case out of New York, involving the world of music and illustrating the burden of proof.

As explained here on various occasions,  truth is a defense (a point sadly lost on many defense attorneys). Thus, the burden of proof is on the defendant to show the truth of whatever it is he said or published.

In one of our recent cases, the defendant falsely stated that our client had cheated customers. Throughout the case, no matter how many times I explained to defense counsel that it would be his burden to prove that my client cheated customers, he kept responding, “you’ll never be able to prove that your client didn’t cheat customers.”

Really? My client took the stand and testified that he has never cheated a customer. That’s all it takes. The defendant then had the burden to prove the truth of the statement, and could not name a single customer our client had cheated. Judgment for plaintiff.

In today’s case, Tom Scholz, guitarist from the 70’s rock band Boston, sued the Boston Herald newspaper, claiming that certain articles falsely claimed that he was responsible for the suicide of fellow band member Brad Delp in 2007.

The judge in the case dismissed the action, because although it is the burden of the defendant to prove the truth of the statement, the judge concluded that the truth or falsity of the statement could never be determined. He didn’t use this example, but to borrow an example from that era, it’s a little like blaming Yoko Ono for the break-up of the Beatles, when John Lennon isn’t here to testify. The judge ruled that why Delp killed himself will forever be an imponderable, making any statement about the suicide merely an opinion, and opinions are not actionable.

Morris & Stone Defamation Victory – Hair Transplant Doctor Stipulates to $150,000 Judgment

Internet Defamation Victory

Our client in this case was Spencer Kobren, a well known Consumer/Patient Advocate, author and the Founder of The American Hair Loss Association. Besides hosting a weekly radio broadcast, Kobren also owns and operates the online message forum baldtruthtalk.com where hair loss consumers can discuss and share their experiences with product and service providers in the hair loss industry, as well as provide commentary and reviews of hair transplant surgeons in the field.

As most Internet savvy people now know, the Communications Decency Act (“CDA”) shields the operator of a website from any liability for comments posted on an open forum. When someone on Kobren’s forum posted critical comments about a Beverly Hills hair transplant surgeon, the doctor took exception. However, instead of contacting Mr. Kobren or his staff to ask for help in properly addressing  negative comments posted by one of his former patients, the doctor decided to defame our client by posting completely fabricated reviews and comments on various blogs, review sites and social media sites, accusing  Kobren of fraud, coercion, extortion, organized crime and the running of a criminal enterprise.

As an aside, some sites encourage negative comments, and have no concern as to whether or not they are true. Operators of these sites are also protected by the CDA, but knowingly allowing false and defamatory comments to be posted was not the intention of the CDA, and we will not represent a party who is using the CDA to that end. This was not that type of case. Spencer Kobren runs a very positive and useful board, and will intervene where appropriate when the content crosses the line.

Back to the story. Despite my repeated postings of articles about the wisdom of a walk-away, and even this one, which is almost identical to this case, some defamers feel they must show bravado, claiming they can prove the truth of all of their comments. It’s as though they never think it through until I serve the first set of discovery questions, which forces them for the first time to sit down and put in writing all the facts they are contending support the statements they made. I have this image in my mind of them sitting at their kitchen table, my discovery requests spread in front of them, and after about 45 minutes of trying to answer the questions and realizing that there is not one fact they can offer that would support the defamatory statements they made, saying to themselves, “Man, I am SCREWED!”

Such a moment must have occurred in this case. Defendant first did not even respond to the complaint, then he hired an attorney to undo the default, then he fired that attorney, and agreed to remove all the defamatory comments, never to speak ill of our client again, and to pay $150,000.

Aaron Morris

Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

Email Aaron Morris

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