Would you want to live in a country where you could sue for that?

Two women fighting

Happy birthday to you,
You live in a zoo,
You look like a monkey,
And you smell like one too.    -Anon

I get lots of phone calls relating to defamation, where the caller wants to sue for some inconsequential slight.

For example, a caller once told the story of how he tried to use a Discover card at Costco. When the cashier informed him that Costco only accepts Visa and debit cards, he responded that he had used a Discover card the prior week. To this the cashier responded, “There’s no way you could have paid with a Discovery card last week. You’re being crazy.”

Because he was referred to as “crazy” in front of other customers, he wanted to sue for defamation.

If you actually need a legal analysis for this, calling someone crazy is not defamatory, because it is not being offered as a verifiably true statement. The cashier was not proclaiming that the caller suffers from a mental illness, only that he was “acting the fool.” As I have explained here many times, context is everything in a defamation action.

When I get this type of call, I feel like I need to accomplish more than simply explaining that the facts will not support a defamation action. I have the person’s attention, so perhaps I can get them to look at life in a different way — a way that could improve their attitude and cause them to better embrace the freedoms that we enjoy.

To that end, I ask the question, “would you want to live in a country where you could sue for that?” 

I want them to examine an America with little or no free speech protections, where a cashier could be dragged into court because she said something slightly rude.

Now, you are probably thinking that my attempt to use the call as a teaching moment is never well received, but you would be wrong. In the conversation that follows, I often get the caller to appreciate that allowing such actions is a two-edged sword, and that the caller would be next on the chopping block if he, for example, told a waiter the steak was undercooked. Would he want to spend a day in court and face damages, because the chef considered that statement to be false and offensive?

But today’s call was not so productive.

Changing the facts slightly to protect the caller’s privacy, she had received a text message from her sister, stating that she was a very bad daughter, given the lack of calls and visits to dear old mom. The caller was outraged by the claim, because she often calls and visits her mom, and her sister has no business telling her she is a bad daughter. She wanted to know how quickly I could serve her sister with a complaint for defamation.

I first explained that you cannot defame someone to themself. (Grammatically, I’m supposed to use “themselves,” but that always sounds funny to me.**) Defamation is actionable because of the concomitant loss of reputation. Presumably, if someone makes a false statement to you about you, you’ll know it is false, and you won’t suffer any loss of reputation because no one else heard the statement. (Although, if we want to get really meta, I guess a false statement to you about you could cause you to question yourself and ultimately to think less of yourself, but that would only happen if there is some truth to what was said, and truth is a defense to defamation, and so it still wouldn’t be actionable.) Since her sister had texted only her, there is no publication to a third party, and hence no defamation.

Even if the statement had been published to a third party, stating someone is a bad daughter is a matter of opinion, and not defamatory. Here is a simple question to ask, to determine if a statement is an opinion. Can the person trump your evidence, no matter what evidence you put on?

So, for example, this woman was upset because her sister claimed she was not spending enough time with her mother. I’m sure, in her mind, that was verifiably false, because she would be able to prove that she spends three hours a day talking to mom, and spends every weekend with her. She likely envisioned that she could produce her phone records to show the calls, and witnesses to the weekend visits. But all of that would be refuted by the sister simply stating, “Yes, but I think you should spend four hours per day talking to her, and should visit during the week, not just weekends.” It’s an opinion. There is no defined “good daughter” standard we can reference to determine as a matter of law that she fills the bill.

And then I launched into my routine.

Imagine a world where you could actually sue for a minor slight such as this. Every family get together would be followed by multiple lawsuits for perceived putdowns. So I asked the question.

“Would you want to live in a country where you could sue your sister for offering her opinion that you would be a better daughter if you visited mom more?”

Her response was immediate.

“If people can say things like that with no consequence, then it is not a country, it is a zoo; the place where you live.”

I started to add more, only to realize she had already hung up on me.

All you can do is all you can do.


** From Lexico.com:

The standard form which corresponds to the plural forms they and them is themselves:

I just showed the boys the refrigerator and told them to help themselves.

In current English, they and them are sometimes used in singular contexts, to refer to a person whose gender is unspecified (see also ‘He or she’ versus ‘they’). For example:

If your child is thinking about choosing a school, they can get good advice from this website.

In recent years, people have started to use themself to match the singular use of they and them: it’s seen as the logical singular form of themselves. For example:

This is the first step in helping someone to help themself.

This form is not yet widely accepted, though, so you should avoid using it in formal written contexts. If you were writing the sentence above, you should say:

This is the first step in helping someone to help themselves.

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

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