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., 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.

Overhill Farms, Inc. v. Lopez

In Overhill Farms, the IRS informed the company that according to its records, 231 of its employees were using bogus social security numbers, and threatened the company with penalties and criminal liability if it failed to investigate and resolve the matter.

The company informed all of the employees of the situation, and gave them time to clear up any issues with their social security numbers, telling them the company would have to let them go if they were using false numbers. Only one of the employees in question was able to clear up the confusion, and the other 230 were let go.

Defendant Lopez, the director of an organization supporting workers’ rights, issued a press release protesting the “racist firings by Overhill,” and claiming that the problems with the social security numbers was a pretext for all the firings, which were really designed to eliminate full time workers and replace them with part time workers with no benefits.

Overhill sued for defamation, in part for the “racist” claim. Lopez brought an anti-SLAPP motion, assuming he would carry the day based on all the prior case law holding that “racist” was not defamatory, but he lost.

The reason? Here, the use of the word “racist” was not merely a matter of opinion, because it was tied to specific false claims. Overhill was able to prevail, not because it could somehow show that it was not racist, but because it could show that the terminations were not made for racist reasons, as Lopez had claimed. It was a verifiably false claim to assert that Overhill had created a pretext to fire the employees, motivated out of racism.

Cooper v. Franklin Templeton

Although not decided under California law, the case of Cooper v. Franklin Templeton, out of New York, perfectly illustrates the interplay of these concepts. The plaintiff in the case was Amy Cooper — the so-called “Central Park Karen” — who got into a verbal altercation with a bird-watcher over her unleashed dog, and ended up calling the police. The bird-watcher, who is black, videoed part of the interaction, and that video later went viral. Cooper suffered a severe backlash as a result of her actions in the video.

Part of that backlash was her termination by her employer, Franklin Templeton. Although Cooper apologized for her conduct, she felt that it was inappropriate for her employer to publicly refer to her as a racist, and claimed that the comments by her employer had only served to fuel the fire of hatred toward her. She sued on that basis, and Franklin Templeton brought a motion to dismiss.

What follows is part of the opinion by Judge Ronnie Abrams, sitting in the Southern District of New York, following oral argument on the motion to dismiss. The indented portions are directly from the opinion (which are taken from an article published by Reason).

Plaintiff Amy Cooper, a white woman, was formerly employed by Defendant Franklin Templeton in New York as a Portfolio Manager. On May 25, 2020, she was involved in a confrontation with birdwatcher Christian Cooper, a black man, while walking her dog in Central Park. Video footage of the encounter was posted to Facebook and Twitter later that day. The video quickly went viral—garnering millions of views—and earned Plaintiff the moniker “Central Park Karen” on social media. The next day, Franklin Templeton announced that it had conducted an internal review of the incident and terminated Plaintiff’s employment….

The following facts are drawn from the complaint and are assumed to be true for the purposes of this motion….

On May 25, 2020, Plaintiff was involved in an altercation with Christian Cooper, a black man, while he was birdwatching and she was walking her dog in Central Park. The confrontation, which Plaintiff claims caused her to fear for her safety and that of her dog, culminated in Plaintiff placing a 911 call, during which she told the police that there was “an African-American man threatening [her] life.” A video of the encounter was shared on social media that same day; it quickly went viral and “became international news as a racial flashpoint.” Plaintiff was soon branded a “privileged white female ‘Karen'” by the media and social media users….

On the night of the Central Park incident, Franklin Templeton—Plaintiff’s then- employer—published the following statement on Twitter concerning the incident:

We take these matters very seriously, and we do not condone racism of any kind. While we are in the process of investigating the situation, the employee involved has been put on administrative leave.

The next afternoon, Franklin Templeton tweeted an update, which read:

Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton.

Plaintiff alleges that, as part of its “investigation” into the Central Park incident, Franklin Templeton communicated with her on the day of the incident. It did not, however, interview or seek to interview Mr. Cooper about it. Nor did it obtain a recording of Plaintiff’s 911 call from the police, or minutes from New York City community board meetings pre-dating the incident that allegedly pertained to prior altercations in Central Park between Mr. Cooper and other dog owners. Franklin Templeton also did not interview Jerome Lockett, one such dog owner, who allegedly had a similar run-in with Mr. Cooper in Central Park, and who emailed a statement about that encounter to NBC on May 26, 2020.

In the months following the Central Park incident, the President and CEO of Franklin Templeton, Jenny Johnson, referenced or spoke about the incident in several public interviews. In a June 2, 2020 interview with Bloomberg regarding the company’s decision to terminate Plaintiff, Johnson said:

I just have to commend [] our crisis management team, it was a holiday. Everybody got together. We needed to spend time getting the facts. Sometimes videos can get manipulated and so you have to make sure that you’ve reviewed all the facts. I think the facts were undisputed in this case, and we were able to make a quick decision.

And in a July 6, 2020 interview with Fortune Magazine, she stated: “[Defendants] espouse zero tolerance for racism.” …

For the reasons already explained, the court found that Cooper’s defamation claim would not stand. Although the word “predicate” was not used, that is in essence the analysis the court was performing. The employer had claimed to have performed an “internal review of the incident” before emphasizing that it does not tolerate racism. So the employer was calling Cooper a racist, and the issue came down to whether the basis for that claim was a false predicate:

The allegedly defamatory statements at issue in this action are: (1) Defendants’ May 26, 2020 announcement on Twitter that they conducted an “internal review of the incident in Central Park” before terminating Plaintiff and that they “do not tolerate racism of any kind”; Johnson’s June 2, 2020 statement in an interview about the incident that she “[thought] the facts were undisputed in this case”; and her July 6, 2020 assertion in another interview that “[Defendants] espouse zero tolerance for racism,”

Plaintiff argues that Defendants’ announcement on May 26 that they had conducted an “internal review” of the Central Park incident was false because in reality, “no investigation was performed.” Plaintiff has failed to plausibly plead that the factual assertions contained in that statement were not “substantially true.” She does not allege that Defendants did not watch the viral video of the incident—indeed, her counsel appeared to concede at oral argument that they had—nor that Defendants did not have some kind of internal discussion about Plaintiff’s conduct in the video prior to firing her. Such acts suffice to meet a reasonable interpretation of “internal review.” Further, Plaintiff’s assertion is belied by her own allegation that Franklin Templeton, at the very least, “communicat[ed] with Plaintiff about the May 25, 2020 incident in Central Park … on May 25, 2020.” And Defendants’ statement did not “ha[ve] the effect of[] conveying that Franklin Templeton had performed a thorough and fair investigation,” as she contends, because Defendants never used the words “thorough” or “fair.” Plaintiff may take issue with the sufficiency of Defendants’ investigation into the incident, but she has not plausibly alleged that no investigation was conducted at all.

To the extent that the first and second sentences of the statement can be read together as calling Plaintiff a racist, or characterizing her conduct on May 25, 2020 as racist, the statement is inactionable as protected opinion. It is well-established that an accusation of bigotry is a protected statement of opinion, rather than a defamatory statement of fact capable of being proven true or false. See, e.g.Cummings v. City of New York (S.D.N.Y. 2020) (“Statements describing Plaintiff or Plaintiff’s Lesson as ‘racist’ are dismissed because they are nonactionable statements of opinion.”); Doe #1 v. Syracuse Univ. (N.D.N.Y. 2020) (“A reasonable reader could not conclude that Chancellor Syverud’s statements that the videos were racist, anti-Semitic, homophobic, sexist, and ableist conveyed facts about Plaintiffs, rather than his opinion about what the videos depicted.”); Silverman v. Daily News, L.P. (N.Y. App. Div. 2015) (affirming the lower court’s holding that articles that described materials authored by the plaintiff as “racist writings” were “such that a reasonable reader would have concluded that he or she was reading opinions, and not facts, about the plaintiff”); Ganske v. Mensch (S.D.N.Y. Aug. 20, 2020) (“A reasonable reader would likely view Defendant’s reference to Plaintiff’s tweet as ‘xenophobic’ to be her opinion and not conveying any objective facts about Plaintiff.”); Ratajack v. Brewster Fire Dep’t, Inc. of the Brewster-Se. Joint Fire Dist. (S.D.N.Y. 2016(finding statements in which the defendant “articulated concerns that Plaintiff was a racist or a future threat to others” to be nonactionable opinion). And Defendants cannot be liable “for simply expressing their opinion … no matter how unreasonable, extreme or erroneous these opinions might be.”

Counsel for Cooper apparently knew that calling someone racist, standing alone, will not support a defamation action. Instead, they tried to argue the basis for that claim was false:

Plaintiff argues, however, that “Defendants committed defamation not by calling the Plaintiff a racist, but by implying that they determined her to be a racist based upon an investigation which revealed facts undisclosed to [their] audience.” Plaintiff is correct that there is a distinction between expressions of pure opinion, which are actionable, and statements of “mixed opinion,” which are not. “A ‘pure opinion’ is a statement of opinion which is accompanied by a recitation of the facts upon which it is based … [or] does not imply that it is based upon undisclosed facts.” A “mixed opinion,” by contrast, is a statement that “implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it.” …

Nothing about Defendants’ May 26 Statement suggested that the opinions contained therein rested on facts undisclosed to the audience. Defendants’ words, on their face, did not indicate or even imply that they considered any information not already known to the public, or sources not available to the public, in conducting their “internal review” of the incident. A consideration of the circumstances surrounding the statement further underscores that notion.

Plaintiff acknowledges that the video of her encounter with Mr. Cooper became “international news as a racial flashpoint.” The incident received heightened media and public scrutiny, in particular, because it took place “in the midst of an ongoing national reckoning about systemic racism.” In fact, the Central Park incident coincided exactly with the date of George Floyd’s murder in Minneapolis, an event which similarly sparked intense discourse nationwide on issues of racial justice and policing. The contents of the viral video, as well as the dialogue surrounding it both in the media and on social media, were already matters of public knowledge when Defendants’ May 26 tweet was posted. See Gisel v. Clear Channel Commc’ns, Inc. (N.Y. App. Div. 2012) (“Because Lonsberry’s statements were based on facts that were widely reported by Western New York media outlets and were known to his listeners, it cannot be said that his statements were based on undisclosed facts.”). Because Defendants’ statement did not imply the existence of undisclosed facts—rather, a reasonable reader would have understood it to be based on widely disseminated facts in the public domain—it is protected as pure opinion….

Cooper had also alleged that her termination arose from race and sex discrimination, but the court also rejected those claims:

Plaintiff argues that “Defendants’ own words and actions provide the required plausible support for a minimal inference of discriminatory motivation.” Specifically, she contends that Defendants “implicated the race of their employee with each of [their] communications to the public, by repeatedly connecting [their] stated stance against racism with their termination of [] Plaintiff.

This argument merits little attention. None of Franklin Templeton’s public statements made any mention of Plaintiff’s race. See Holcomb v. Iona College (2d Cir. 2008) (noting that Title VII will only support a claim by an “employee [who] suffers discrimination because of the employee’s own race”) (emphasis in original). Defendants’ repeated condemnations of racism, moreover, did not “implicate [Plaintiff’s] race” because—as the Second Circuit has squarely held—”‘[r]acism’ is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race.” Maraschiello v. City of Buffalo Police Dep’t (2d Cir. 2013). “[A] statement that someone is a ‘racist,’ while potentially indicating unfair dislike, does not indicate that the object of the statement is being rejected because of his race.” Plaintiff’s complaint thus fails to allege that Defendants made any remarks, whether publicly or privately, that could be viewed as directly reflecting discriminatory animus….

Plaintiff argues that she has made an adequate showing of disparate treatment by identifying three male comparators—one of whom is non-white—who were treated more favorably than she was after engaging in purportedly similar conduct. Specifically, she points to: (1) Vivek Kudva, an “Indian male” and “head of Franklin Templeton’s Asia Pacific distribution,” who was fined and subjected to a market ban for insider trading by the Securities and Exchange Board of India; (2) C.K., “an executive in the Financial Institutions group,” who allegedly “offended” a client at a conference by “insisting he wanted to go somewhere to meet women or to an adult entertainment venue,” once “plagiarized a competitor’s presentation materials,” and was accused of sexual harassment in the workplace; and (3) Chuck Johnson, a former member of Franklin Templeton’s board of directors, who was appointed to the position in 2013 notwithstanding his 2002 conviction and two-month incarceration for a domestic violence incident. According to Plaintiff, none of these individuals was terminated from his position after his alleged misconduct….

Plaintiff has not plausibly alleged that she and her selected comparators were similarly situated in all material respects. What constitutes “all material respects” varies from case to case, but “the plaintiff and those [s]he maintains were similarly situated [must have been] subject to the same workplace standards” and must have engaged in conduct of “comparable seriousness.” This requires “a reasonably close resemblance of … facts and circumstances.” … First, Plaintiff has not pled that she and the three comparators she has identified were similarly situated in terms of position, seniority, job responsibilities, business unit, performance, length of experience, or even geography. Indeed, two of the individuals were executive-level employees, one of whom was employed by the company in India and the other in an undisclosed location; the third was a member of Franklin Templeton’s board of directors and thus not an employee of the company at all. These individuals occupied roles that were “vastly different on their face,” from Plaintiff’s role as a Portfolio Manager in Defendants’ New York office….

Second, Plaintiff must “show that similarly situated employees who went undisciplined engaged in comparable conduct.” The misconduct that Plaintiff’s proposed comparators allegedly engaged in—which runs the gamut from plagiarism to insider trading to a felony conviction—is simply too different in kind to be comparable to her conduct in this case. The complaint does not allege, for instance, that any reports of the comparators’ conduct became—or even came close to becoming—”international news as a racial flashpoint,” as Plaintiff herself described the Central Park incident….

So now you know.

So, if you want me to represent you against a false claim of being a racist, I’m there for you. But here is the analysis we will be performing. If it is a claim of racism, with no explanation of what makes you a racist, then there is probably not much we can do. But if the person explains why you are an alleged racist, and those reasons are false, that might be actionable.

And at the risk of perhaps stating the obvious, it is also the case that the context itself must be true. Going back to our Barista example, the person was free to conclude that the Barista was a racist for misspelling his name, as ridiculous as that might be. The predicate for the racism claim was that the Barista had misspelled the name, and that made him racist. Since the predicate is true, the opinion that followed is not actionable. But if in reality that person had never even visited the Starbucks, then he could not have formed a valid opinion about the Barista’s racism, and the racist comment would on that basis be defamatory.

[February 7, 2024 UPDATE:]  I came across a news headline, reporting that a sportscaster had been awarded $25 million, based on a new outlet calling him “racist.” You can imagine my concern, given that my article concludes that whether someone is racist is a matter of opinion, and hence not actionable. But upon reading the article, I found that it only served to illustrate the point I had made about the statement being actionable when it is based on a false predicate.

The facts were that during a basketball game, when the players took a knee for the National Anthem, a sportscaster went off on a screed, and made some horribly racist remarks. What got the news outlet into hot water was that they identified the wrong sportscaster as the racist. So, again, the statement was not defamatory because they called him a racist as such, but rather because the basis for saying so was false. He had not uttered the words.

The case illustrated another important point. Callers will sometimes ask, “Do I even need to respond to the attorney’s threatening letter? Within an hour of posting the comment, I figured out I was wrong and took it down. They’ll never be able to prove damages.”

Defamation occurs the moment the false statement is published to a third party. Certainly the time it is posted could impact the damages it causes, but damages can be awarded even without a showing of actual, quantifiable damages. In the case of the sportscaster, $20 million of the $25 million award were for punitive damages, designed to punish the news outlet for failing to check the accuracy of the story before publishing it.

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Aaron Morris
Morris & Stone, LLP
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