The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Magistrate Judge Richard A. Lanzillo in Peschmann v. Quayle (W.D. Pa. Aug. 13, 2019):
[Marinka] Peschmann attempts to state a defamation claim against [Stephen] Quayle, arguing that his comment that she had sexual relations with the devil imputes serious sexual misconduct to her and therefore constitutes defamation per se. [Quayle's statement was, "When I hear a woman making a claim to a national editor of a major Internet uh, uh, uh presence, news presence, and talking about sleeping with the devil … If someone says they are sharing the bed with the devil that means they are having sex with an entity, okay?"]
Courts, for certain, have found false allegations of serious sexual conduct to be capable of defamatory meaning. For example, a claim that a college professor "falsely and maliciously stated to [University] employees and other third parties that she had been sexually assaulted and harassed by [another professor], when in fact, she had not" imputed serious sexual misconduct and stated a claim for defamation per se. A statement that a plaintiff "ran young girls for him down at spring training, ages 12 to 14 … so that's statutory rape every time you do that" was capable of a defamatory meaning. Likewise, a public statement that a plaintiff was "an attacker," thereby "forever labeling him in print as a violent sexual deviant" was also found to be sufficient to state a claim for per se defamation. Asserting to others that a plaintiff had committed "adulterous sexual conduct," was "a slut," "the queen of sluts," and a "whore" also was found to capable of a defamatory meaning and, therefore, stated a claim of per se defamation. Finally, a false claim made to and subsequently published by a local newspaper that a high school band director had sexually harassed students stated a claim for defamation because it alleged serious sexual misconduct.
Here, however, Quayle argues, and the Court agrees, that his statement was pure hyperbole or an epithet, such that it was not provable and thus not defamatory. Statements which cannot be proven true or false, such as insults and name-calling, even if offensive, are not capable of a defamatory meaning. And the Constitution actually protects such words.
Similarly protected are those statements which "could not reasonably have been interpreted as stating actual facts about the" individual, and statements of opinion unless they imply "undisclosed defamatory facts justifying the opinion." The Third Circuit has held that "the law of defamation does not extend to mere insult" and that there is "a distinction between actionable defamation and mere obscenities, insults, and other verbal abuse."
Here, Peschmann herself acknowledges that Quayle's statement is "impossible to be true," "preposterous," "ludicrous," and "outrageous." In other words, Peschmann recognizes that this statement was pure hyperbole and not an assertion that a reasonable person could take literally. As such, the statement is not capable of a defamatory meaning. Peschmann's defamation claim against Quayle based upon his "sex with the devil" statement should be dismissed.
The District Court didn't expressly discuss the Magistrate Judge's recommendations on this, and went along with the Magistrate Judge's recommendation on some issues but not all of them, so in principle the matter might still be open. But I think that, on this point, the recommendation is clearly correct.