Free Speech

Allegations of Sex with the Devil Aren't Libelous,

says a federal court.

|The Volokh Conspiracy |

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.

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  1. It *can’t* be true, because the devil is no longer interested in sex with humans: the Antichrist was born to a *different* woman many years ago, and the devil’s roving days are over.

    While I don’t know the precise identity of the Antichrist, Nostradamus predicted he’d be a member of the Supreme Court.

    1. There’s another school of interpretation which says the Antichrist was born in 1968, the year Rosemary’s Baby came out.

      https://www.thefamouspeople.com/born-1968.php

  2. Quarae, Professor Volokh: would the result be the same if the Devil were the plaintiff?

  3. Law school final: Using only originalist arguments, support or critique the decision.

  4. If she floats like duck, she’s made of wood, and therefore, a witch. (Rex v. Booth, 1975)

  5. I wonder how many “reasonable people” believe in the existence of the devil as a real being, and could take the assertion literally.

    1. Yes, I was wondering about that too. I don’t know how many people believe in the devil – as a percentage of the population presumably less than in 1776 but still quite a few I would guess. If it’s, say, 30% of the population can one really say that these 30% are not “reasonable people” ?

      Well obviously one can, but in the same way that one can say that folk who believe socialism could work are not “reasonable people.” I find myself doubting, if a large minority think something, that it is reasonable for legal purposes to describe them as not “reasonable people.” It seems to me that one has to use some sort of benchmark related to what people do in fact believe. Once no doubt majorities beieved in witches and the flatness of the Earth. And a quick google lands me on a 2007 Gallup poll that asserts that 70% believe in the devil.

      So, stipulating for the present that enough people believe in the accomplishability of sex with the devil, I am troubled by :

      Here, Peschmann herself acknowledges that Quayle’s statement is “impossible to be true,” “preposterous,” “ludicrous,” and “outrageous.”

      First it is not obvious to me that these words imply a belief in the deed’s impossibiity according to the laws of Physics, and may merely be of the form “Debbie couldn’t possibly be having an affair with Beelzebub – she’s a devout Catholic.” And second :

      In other words, Peschmann recognizes that this statement was pure hyperbole and not an assertion that a reasonable person could take literally.

      This seems to go a bit further, asserting that even if Peschmann does believe it is pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil. (Note “recognises” which implies not merely an expressed belief, but a belief which is true in fact. You cannot “recognise” that James Bond is a real person, though you can state it and even believe it.)

      And if I understand it right, Peschmann’s personal belief ought to be irrelevant. The question is whether “reasonable people” could or could not believe it.

      1. Sorry the structure of this sentence went astray :

        This seems to go a bit further, asserting that even if Peschmann does believe it is pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.

        This seems to go a bit further, asserting that Peschmann herself believes it to be pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.

        1. G*****nit

          Sorry the structure of this sentence went astray :

          This seems to go a bit further, asserting that even if Peschmann does believe it is pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.

          It should say something more like :

          “This seems to go a bit further, asserting that Peschmann herself believes it to be pure hyperbole; and definitively ruling that no reasonable person could believe in the possibility of sex with the devil.”

      2. I don’t know it has to be untrue by the laws of physics.

        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.

        Wasn’t this the downfall of Falwell’s case against Playboy for their cartoon of him having sex with his mom? He said nobody would ever believe it is true.

        1. Agreed, if you the plaintiff concede that nobody could possibly believe it was true then you’ve not got a leg to stand on. Or at the very least no damages to collect.

          But that’s not quite the same as acknowledging that you yourself know that it couldn’t possibly be true (either because of the laws of Physics or because you’re a good Catholic girl) while leaving open the possibility that other people may believe it.

    2. Believe in the devil or believe in a corporeal devil? Scalia believed the devil exists.

      1. Justice Scalia said he believed the devil exists.

        I am willing to give him the benefit of doubt on whether he believed it.

    3. If you believe the Bible then the Devil is a real being who does occasionally walk amongst humans. There are many historical accounts (up to and including the modern age) of people talking about meeting the actual devil or the devil appearing at major events.

      I know the irreligious libertines on this blog will call it “hog wash”, but many perfectly intelligent, reasonable, and rationale people will say that the devil does walk among us.

      1. Maybe. I think a lot of people would define “reasonable” and “rationale” [sic] and even “intelligent” as NOT including a belief in a biblical devil. There are a lot of people who believe that they were abducted by aliens and given anal probes. But I’d challenge the premise that these are reasonable or rational people. And I would never call such skeptics irreligious. That’s not accurate. (There are hundreds [thousands??] of religions that do not have a devil or devil-like figure.) Did you possibly mean ‘libertines who do not believe in a Christianity-based religion?”

        p.s. I have only seen it as ‘hogwash,’ but Google Ngrams does show hog wash as perfectly acceptable (albeit much less popular than the one-word version).

          1. [I cut-and-pasted the Ngrams link to my OP and then to my “reply.” Must be a problem with the Reason website…not sure why an innocuous link to a Google website would otherwise be censored out.]

        1. I think a lot of people would define “reasonable” and “rationale” [sic] and even “intelligent” as NOT including a belief in a biblical devil

          I’m sure you are right. But that was my point. If x percent of the population thinks that what y percent of the population thinks is “not reasonable” then can the legal system sustain an understanding of “not reasonable” for values :

          (a) x = 90%, y = 10%
          (b) x = 70%, y = 30%
          (c) x = 50%, y = 50%
          (d) x = 25%, y = 75%
          (e) x = 35%, y = 20%

          and so on ?

          I do not believe in either the devil or in God (or gods) – though I would describe such beliefs as arational rather than irrational, but whichever term we ungodly choose to deploy, there’s nothing more a/ir-rational about believing in the devil than about believing in God. And yet I doubt that a Judge, in 2019, would be willing to conclude openly that no reasonable person could believe in God.

          Hence my confidence that “not reasonable” in this legal context cannot be understood without reference to how popular a belief is.

  6. Professor V,

    How about a canonical list of all insults that have passed Judicial scrutiny? That would be a useful article for anyone who wants to insult folks without incurring liability.

    You are welcome to the idea, I only ask for a footnote.

    Best,

    Robert

  7. A few decades back, a libel suit was allowed to proceed in which a poorly-disguised allegedly fictional beauty pageant contestant competed in the talent portion of the pageant by fellating someone who, during the proceedings, levitated into the air. She offered to use this talent in the cause of world peace.
    As far as I know, this act is impossible. If I am wrong, I’d appreciate references.

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