Recently, as a result of a former business acquaintance posting highly charged material on his Facebook page, and as the result of a very good memory, I publicly called that someone a racist. Naturally, it triggered a response. Most of that response centered around excuses for the many racist things this person had previously said. They claimed to be “an equal opportunity offender.” There was no denial whatsoever. If anything, there was an acknowledgment of this very poor behavior. Shortly thereafter, my “shitheal” self was threatened with a lawsuit. I am now preparing to “live in a shoebox.” (Update: Still living on the golf course with a beautiful view!)
Here is my answer to this person’s attorney, should this person decide to pursue this issue any further.
I prefer instead that we just call it quits.
Before you read the legal justification behind my response, I suggest you ask your client to review not only his social media posts but also the several private messages sent to me as well. And yes, I replied to them. There has been no defamation, nor has there been slander. This is a simple matter of law, and the fact that I believe your client is a racist is simply non-actionable. Any social media posts that reference your client have since been deleted, but no retraction or apology will be issued. Any other demands are summarily rejected in their entirety.
Characterizing someone as racist is a non-actionable opinion as a matter of law. Courts treat statements characterizing people as “racist” as non-actionable opinions because they cannot be proved true or false.
This principle was reaffirmed just months ago in another defamation case where a minor plaintiff sued the press over alleged implications of racism arising out of his perceived support for President Trump. In McCafferty v. Newsweek Media Group, Ltd., the plaintiff and his parents sued Newsweek over a report titled “Trump’s MiniMes,” alleging in part that the report implied the plaintiff “supported or defended racism.” 2019 WL 1078355, at *4 (E.D. Pa. Mar. 7, 2019), appeal filed, No. 19-1545 (3d Cir. Mar. 12, 2019).
The court dismissed the complaint, holding that the report did not reasonably convey any implication of racism – and that even if it did, “labeling someone a racist without more, though undoubtedly uncomplimentary, is a non-actionable opinion.”
Here, Sandmann frames a portion of his defamation claim, Statement 42, around a guest column posted on CNN’s website and clearly labeled “commentary” and “opinion,” about “the racist disrespect of Nathan Phillips, a Native American elder, by Nick Sandmann and his MAGA-hat clad classmates of Covington Catholic High School.” Compl. ¶ 207(c).As the precedent reflects, Sandmann cannot as a matter of law base a defamation claim on this statement as it offers an expression of opinion so subjective as to be unprovable.
See also Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (“In daily life ‘racist’ is hurled about so indiscriminately that it is no more than a verbal slap in the face,” and thus falls “comfortably within the immunity for name-calling.”); Squitieri v. Piedmont Airlines, Inc., 2018 WL 934829, at *4 (W.D.N.C. Feb. 16, 2018)
(“Statements indicating that Plaintiff is racist are clearly expressions of opinion that cannot be proven as verifiably true or false.” (collecting cases)); Forte v. Jones, 2013 WL 1164929, at *6 (E.D. Cal. Mar. 20, 2013)
(“the allegation that a person is a ‘racist’ . . . is not actionable because the term ‘racist’ has no factually-verifiable meaning”); Edelman v. Croonquist, 2010 WL 1816180, at *6 (D.N.J. May 4, 2010)
(“characterization of [plaintiffs] as racists is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation”).
The unpublished decision in Armstrong v. Shirvell, 596 F. App’x 433 (6th Cir. 2015), is readily distinguishable. In that case, the court held that the “general tenor” of the plaintiff’s unfounded accusation of racism was an actionable statement of fact. Id. at 441-42. In the clearly labeled opinion piece at issue here, the phrase “racist disrespect” was explicitly based on the Native American author’s perception of the viral video showing the students’ conduct in the presence of Phillips, including “tomahawk chopping.” See Sandmann Video at 4:14-28.
So, whenever I see a racist, I’m not afraid to speak up…and I will. Yeah, I deleted the original post, but my opinion will last forever.
By the way, Clark County School Board Trustee-Elect, Katie Jo Williams Melton: I BELIEVE YOU ARE A RACIST!
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Brett is the Managing Editor of this website. A former business executive turned teacher, activist, and writer, Brett also operates an anonymous Twitter account with a very large following.