Libel

Statements about American Jews as a Group Can't Be Libelous

So holds a federal court, quite correctly; of course, the same is true about any religious group, racial group, or other such large group.

|The Volokh Conspiracy |

From Tuesday's decision in Stang v. Union for Reform Judaism, by Judge Matthew F. Kennelly (N.D. Ill.):

In December 2019, the Chicago Tribune published a piece written by [Jonah Dov] Pesner [senior vice president of the Union for Reform Judaism] under the heading "As Reform Jews, we must consider reparations for American slavery." … In the piece, Pesner wrote that "it's time for the Reform movement" of Judaism in the United States to "join" the "conversation" about "our nation's bigoted history and [] how to dismantle the racist systems and structures that persist to this day." He wrote:

"Our Jewish community is tremendously diverse … but many of us have white Jewish grandparents who arrived in the United States in the early 1900s with very little…. [W]e can now understand that they and many of us also benefited from, and continue to benefit from, the same white privilege that allows for the continued discrimination against black Americans. From how we gained entry into this country to the places we were allowed to live and work, to access to education and financial capital, white Jews have reaped the rewards of racism."

Pesner also wrote that, at the URJ's biennial conference, which was taking place in Chicago that week, the URJ would "consider a resolution that would make it our policy to support the exploration of reparations for American slavery." The resolution, he wrote, "does not define what form reparations ought to take" but rather "endorses" studies and proposals about reparations to "transform" knowledge "into action against the racism still lingering in our congregations and communities." The final paragraph of Pesner's piece read: "The URJ's resolution is about confronting racism in our country, our synagogues, and our hearts. We cannot expect to be a spiritually renewed community—or country—without the airing of truths and a coming to terms with our past sins and silence." …

The plaintiffs … allege that Pesner defamed "American Jews, including by imputation the Plaintiffs" by calling them "'racists' who are purportedly bigoted against African Americans" in their "'hearts,' 'communities,' 'congregations,' and 'synagogues.'"In addition, they allege that Pesner defamed Jewish people in America by calling them, among other things, "knowing and willing recipients of numerous benefits of 'white privilege'" who allegedly "'reaped the rewards of racism'…to the purported severe and lasting detriment of African-Americans.'" …

To a state a claim for defamation under Illinois law, which the parties agree governs this case, a plaintiff must allege "facts showing that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages." A defamatory statement is one that "harms a person's reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him." …

In his article, Pesner did not mention any individual by name. Instead, he referred generally to the "Jewish community" and "the Reform movement" of Judaism, These statements cannot be taken as referring to the plaintiffs as individuals. If anything, it would be unreasonable to interpret Pesner's statements as referring specifically to Stang or Cohn….

The plaintiffs, however, assert that the allegedly defamatory statements can be "imputed from the libeled group" to them as individual members of that group. But the plaintiffs do not explain why they can bring their defamation claim on that ground or cite any case law suggesting that they can do so.

To be sure, as the defendants point out, at least one Illinois appellate court has found that a defendant may be liable to an individual member of a defamed group. Missner v. Clifford (Ill. App. 2009). The court in Missner stated, however, that a plaintiff can bring an individual claim concerning the defamation of a group "when the defamed group is sufficiently small and the words may reasonably be understood to have personal reference and application to any member of the group." … [P]laintiffs do not contend, nor could they, that the allegedly defamed group—all Jewish people in America—is sufficiently small that Pesner's words reasonably could be understood to personally refer and apply to the plaintiffs and thus enable them to sue for defamation….

The court's analysis is quite correct: Under American law, a libel lawsuit can be brought only based on allegations that are "of and concerning" the particular plaintiff; statements about a large group (blacks, whites, Jews, Muslims, etc.) aren't actionable. (Even Beauharnais v. Illinois (1952), which upheld a criminal prosecution for "group libel," and which is widely understood as no longer good law in light of later Supreme Court libel precedents, was based on a specific criminal statute, and had never been applied to civil lawsuits.)

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  1. What’s the reasoning behind the idea that a false statement about an individual that hurts their reputation in ways economic and social is actionable but a false statement about a group that hurts individuals’ in the groups’ reputation in ways economic and social is not?

    1. Because Willie Horton doesn’t represent all Black Males, and that anyone with an IQ above 12 knows that.

      1. I’m not talking about someone who says ‘black guy X is a dangerous criminal.’ I’m talking about someone who says ‘black guys are generally dangerous criminals.’

        1. Prejudice versus libel.

    2. To clarify, if I say falsely ‘the Three Musketeers are all highwaymen who have sex with their mothers’ and they can show that people hearing that refused to do business and consort with them, how is it different if I say ‘all Frenchmen are cowards that have sex with their mothers’ and a Frenchman can show that, not unreasonably, someone who heard me and took me seriously refused to do business with or consort with them?

      1. Because there’s no way for that to happen “not unreasonably.”

        1. I agree, but to get a little legal geeky I did learn in law school that group libel laws have still not been explicitly banned under the 1A, just narrowed and probably now disfavored.
          Though I doubt any appeals court is gonna be dumb enough to rule in such a way the Supreme Court needs to explicitly explain why hate speech is not an exception to the 1A.

          1. Sarcastr0, the problem is that academic administrators aren’t appeals court justices and that’s why I’d love to see someone write a law review article on group libel.

  2. I’d love to see an actual defense of the claim that group libel law is no longer valid because way too many in academia aren’t aware of that.

  3. Does that mean that the Blood-Libel isn’t really a Libel?

    1. Your intellect does not live up to your name

      1. From The Hitchhiker’s Guide to the Galaxy:

        Marvin: “I am at a rough estimate thirty billion times more intelligent than you. Let me give you an example. Think of a number, any number.”

        Zem: “Er, five.”

        Marvin: “Wrong. You see?”

      2. “Your intellect does not live up to your name”

        Being a toad, I think your expectations of his intelligence may be a little high.

  4. So, there’s no such thing as a tribal libel. That’s good to know, I suppose.

  5. I recently learned that the Solomon Brothers started out as traveling merchants in Mobile Alabama and evolved into wealthy cotton brokers, largely by trading merchandise for cotton. They owned some slaves and one of them fought for the Confederacy. After the war they moved to New York and got really rich.

  6. So are we OK abusing lawyers and judges ?

    1. Well, there is what Shakespeare wrote….

      1. You’re mis-interpreting that line.

        It was spoken by a rebel who wanted to kill the lawyers for evil intentions (rebellion against the king).

        It’s not Shakespeare taking a (literary) stance against lawyers.

  7. Judah P. Benjamin was a US Senator and held cabinet offices in the Confederacy (attorney General, Secretary of State and Secretary of War). He was the first practicing Jew elected to the Senate. He also was a slaveholder, planter, lawyer and after the war a barrister in England.

  8. I am still not clear why only “Reform” Jews should get reparations for slavery…

    1. Give, is what perhaps you mean…

      1. No, he is making a point about how ridiculous this whole “reparations” business is.

  9. He was the first practicing Jew

    “Practicing” is a bit strong. He was certainly the first self-identifying Jew elected to the senate, but my understanding is that he had little if any connection to the Jewish community.

    1. That is true, there was a previous Jewish Senator who had converted. Benjamin was generally very private about his religion and much of his personal life. He married a non-Jew, but as far as I know never denied he was Jewish. It’s not recorded that he had a connection to a Synagogue nor clear what social connections to the Jewish community in New Orleans. He was reported to have spoken at a Synagogue in San Francisco on Yom Kippur, but even that isn’t confirmed.

  10. Why is always a jewish game?

    1. Because bashing Christians is too complicated. There are too many different sects, even if you can avoid the Protestant/Catholic divide, and people have been shooting each other over that for centuries.

  11. Just exactly where defamation laws peter out (group too large for identification of an individual(s), that is where “hate” laws take over.
    These provide criminal penalties against defendants. Deriving cause for the awarding of damages, however, might continue to remain beyond reach.
    I certainly hope so.

  12. If the preacher could be sued for libal for calling the congregation a group of sinners, there wouldn’t be many preachers left in this country.

    1. Mhh – the typical congregation is probably small enough to pass the “distributive reading” test. You may have found a business model there. Join one small congregation after the other, especially the firebrand brimstone and hellfire ones, and then sue the pastors

      1. Depends on the denomination. In mine, Congregationalist, the congregation hires (and fires) the minister, as it wishes, so wouldn’t this essentially be suing yourself?

      2. ” the typical congregation is probably small enough ”

        In the minor leagues, sure, but the Congregation Of Exalted Reason is vast enough to shape a great nation’s progress.

  13. “So holds a federal court, quite correctly; of course, the same is true about any religious group, racial group, or other such large group.”

    Until the Anti-Racism Amendment gets passed, anyway.

  14. Dear Professor Volokh:
    I am the plaintiff in Stang v. URJ, et al. I of course disagree with your conclusion in your succinct concluding paragraph that “[t]he court’s analysis is quite correct.” It is evident that you have not read any of the court papers from the case, which are avaiable through PACER.gov. I would happily provide them to you via email but I have a dinner engagment this evening. I plan to respond to your article before the weekend is out through a comment on this thread. Of course, perhaps you would like to amend your article once you are better acquainted with the legal issues in the case. For one, your vague comment that “it is widely understood [that Beauharnais v. Illinois is] no longer good law” you do not say that is has been ever been overruled, which of course it has not been. (You really should have mentioned that, don’t you think?)

    If you read the briefs from the case then you might become aware of Professor James Loeffler’s seminal article published in the June 16, 2019 issue of the Atlantic Magazine with the lengthy title “An Abandoned Weapon in the Fight Against Hate Speech
    A 1952 Supreme Court ruling gave civil-rights groups a way to combat anti-Semitism and other prejudices—but in the years since, it’s largely gone unused.”

    Really Professor, with all due respect Professor, you should have done your homework serving as an amen choir for Judge Kennelly just on the basis of reading his 5 1/2 page opinion without considering any of the underlying court papers. But I will “forgive you” if you do some make up work now. Indeed, I hope to “meet you” via a What’s App call next week after we sort out some of the key issues right here on the Reason Magazine comment boards for the entertainment and edification of other readers. I can tell from your photos that you are a good, decent fellow, not one of those pointy-headed can teach but can’t do numbskulls who inhabit our nation’s ivory towers like — well, I won’t name names, because they list in the tens of thousands.

    Besides, it’s important to focus on the real villains in this set-pieces, the traitorous, power-hungry, enemies of the Jewish people who deserve to burn in hell with Hitler, Himmler, and Eichmann. I refer of course to those two so-called “rabbis,” those evil (in my constitutionally protected opinion, of course) scmucks Rich Jacobs and Jonah Dov Pesner. I will pursue them until the ends of the earth and the end of time. This was only the end of the first round of a “death match,” “rabbis.”

    Sincerely,

    Am Yisrael Chai, Traitors Must Die (Figuratively Speaking, of course!)

    Mark A. Stang

    Hebrew Academy of Greater Miami Class of 1968 –Shalom Chaverim, especially good buddy, Dr. Alan “Kooch” Kuczysnki

    1. Well, I’ve read the pleadings in the case, and the claim was frivolous even if it were based on good law, which it is not. (A magazine article — yes, I have read it — written by a non-lawyer isn’t really the best place to do legal research.) No reasonable person would interpret the statements that you disagree with in the manner in which you did. They wouldn’t be actionable defamation, but protected opinion, even if they were of and concerning you, which they were not.

      (And Beauharnais, even if it were good law, would be insufficient anyway; all that case stands for is the proposition that group libel laws are constitutional. It does not stand for the proposition that such a cause of action exists in Illinois.)

      Also, some free advice: if you thought your motion for Ms. Jafri to withdraw was cute, well, chacun à son goût. If you thought it was effective advocacy, however, you were mistaken.

      1. DN, in you view, the Loeffler, article was not seminal?

        1. It was certainly something.

  15. Dear Mr. Nieporent:

    If Professor Loeffler’s article about Beauharnais in Atlantic was not worth reading then why did you did you read it?

    Pesner’s libelous statements were about all American Jews. I am an American Jew. Ergo, Pesner’s libelous statements were about me. It’s called deductive reasoning. As a reader of Reason you should try it some time.

    Beauharnais IS good law until overruled by the United States Supreme Court. Illinois law is not static but adapts in response to changed circumstances, such as the growing epidemic of Jew-hatred in the U. S. If you had been at Mt. Sinai, as Moses came down the mountain you would have loudly protested, “TEN New Commandments?! Why?! Aren’t THREE enough? We already have too many laws as it is!”

    I was trying to be humorous, not “cute,” in the two-part court paper to which you refer, and my self-effacing humor about the vicissitudes of trying to challenge a couple of Leftist “rabbi” poseur schmucks who have have hijacked the largest Jewish organization in America from the humble platform of a home law office was contained in the status report section of the document.

    Finally, unless you are Professor Volokh writing under a nom de plume, you ought to let him answer for himself. After all, I wrote to the good professor, not to you, and with all due respect, though I have courteously answered your gratuitous, impertinent, and unfounded remarks, I am frankly far more interested in what Professor Volokh has to say about the libel case of the century.

    1. If Professor Loeffler’s article about Beauharnais in Atlantic was not worth reading then why did you did you read it?

      Morbid curiosity.

      Pesner’s libelous statements were about all American Jews. I am an American Jew. Ergo, Pesner’s libelous statements were about me. It’s called deductive reasoning. As a reader of Reason you should try it some time.

      Pesner’s statements were not libelous, and no reasonable person could or would think they were about all American Jews.

      Finally, unless you are Professor Volokh writing under a nom de plume, you ought to let him answer for himself. After all, I wrote to the good professor, not to you, and with all due respect, though I have courteously answered your gratuitous, impertinent, and unfounded remarks, I am frankly far more interested in what Professor Volokh has to say about the libel case of the century.

      Well, not to be argumentative, but you already heard what Professor Volokh had to say, and rather than accepting it, you decided that it must have meant that he hadn’t read the pleadings and didn’t know the law. I can’t speak to the former with respect to the good prof, but I’m quite certain that he does in fact know the law. (Also, you actually posted a comment on a public message board; you didn’t write to him.)

      Finally, I’m not entirely clear on the difference between cute and humorous in this context, but why on earth would you think being cute or humorous (or at least attempting to be) was a good idea in a legal pleading? Do you think it reinforces, or undermines, the notion that your claims should be taken seriously? Because if I were seeking to make new law, I might try for professionalism. Admittedly, that’s just me.

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