The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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.)