Free Speech

Is It Libelous to Falsely Say Someone Is Working with the Police?

Special bonus connections: disbarred lawyers, Tupac Shakur, New York City political figures, and then-not-yet-Attorney-General Michael Mukasey.

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Israel (Ace) Burns is a disbarred lawyer, who is also facing charges of terroristic threats to burn down the Diamond District for this statement:

Today, I'm giving a demonstration from Barclay's Center at 6 p.m. to City Hall, and that's the first stop—and we're hoping [Mayor] De Blasio and [Gov.] Cuomo come out and talk to us and give the youth some direction.

But if they don't, then [the] next stop is the Diamond District. And gasoline, thanks to Trump, is awfully cheap. So we're giving them a chance right now to do the right thing.

(He may be taking "Israel Burns" too literally.) Burns characterizes the prosecution as stemming from "the NYPD, the Jewish community and the Alt-right [taking] issue with Ace's wording and rhetoric." He also says,

You know, I'm a leader of this FTP movement. It means a lot of things. It can mean free the people, it can mean for the people, it could also mean fire to property—and that's very possible.

But he is also a "Brooklyn rapper and activist," who is now suing Whitney Hu—who was a N.Y. City Council candidate, and is now campaign manager for N.Y. mayoral candidate Dianne Morales—for defamation (and related torts). Hu and codefendant Grace Nam, Burns says, accused him of (1) "actively working with the police," and (2) being a "known aggressor and abuser."

One of the allegedly libelous Tweets.

 

Now one element of a defamation claim is that the statement must be "capable of a defamatory meaning"; and there are two different ways of understanding that, which might be called the "descriptive" and the "normative" (my own labels):

  1. Descriptive: The law might ask whether the statement would actually diminish the defendant's reputation among some sufficient portion of its audience.
  2. Normative: The law might ask whether the statement should diminish the defendant's reputation among some sufficient "right-thinking" portion of its audience.

This issue has arisen with regard to false accusations of homosexuality. In the past, such accusations used to be seen as actionable under either approach. But more recently some courts have concluded that false allegations of homosexuality are no longer defamatory (even if such allegations could indeed diminish the target in some people's eyes), at least unless specific damages are shown.

And the same is true, especially in New York, when it comes to allegations of working with the police:

In order to be libelous under New York law, a false statement must hold the plaintiff up to ridicule or scorn in the minds of "right-thinking persons"; those who would think ill of one who legitimately cooperates with law enforcement officials are not such persons.

That's from Agnant v. Shakur, written by then-Judge-later-Attorney-General Michael Mukasey, deciding a case about a song written by Tupac Shakur.

So the question that a court will presumably have to face, as to the "working with police" allegation, unless the case is dropped: In Burns' circle, it doubtless is bad for his reputation to be seen as working with the police; should that be enough to make the allegation actionably defamatory (if it's false)? And how do New York courts decide who is "right-thinking" these days?

NEXT: Burke's Speech on Conciliation with Working from Home

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  1. Is the better question whether New York courts should even be in the business of deciding who is “right-thinking”?

    “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion […].” – West Virginia State Board of Education v. Barnette.

    1. Isn’t working for the police a compliment, not a criticism?

      1. not in all communities.

        snitches get stitches

        1. Should a bad reputation among a community filled with criminals be libelous or actionable? That claim would suborn criminality and subvert any duty to report a crime. Allowing such a claim would encourage criminality, and should be against policy.

          It is appalling to be against community cooperation in a high crime area.

          1. It depends. In a community where the police are the criminals, then an allegation that you’re working with the police could well be libelous. Consider a more extreme example. Was it libelous to accuse someone of working for the Gestapo? (Granted, it would have been next to impossible to prosecute such a claim while they were in power but the same legal standard for libel applied after they fell.)

    2. EXACTLY!

      And I have a problem with saying someone is gay not being defamatory because it is no longer illegal.

      For example, there is nothing “wrong” with being a Christian — I am one — but I can see someone who is Jewish being really upset about being labeled as one.

      And in some cultures, I can see someone put in mortal peril if said to be working with the police — from “omerta” to “snitches get stitches.”

      1. Sue the people threatening the person, not the person who labelled him.

    3. What is good for one person’s reputation would be injurious to someone else’s, and right thinking has nothing to do with it. If it were falsely claimed that the head of the Ku Klux Klan was half black, or that a woman who works for a pro-life organization had an abortion, or that a Baptist pastor attends orgies and seances, their reputation in their communities would be injured, and that would be true regardless of what one thinks of racism, abortion, orgies or seances. The point is, their communities consider those things to be bad, and their reputations would suffer accordingly.

      1. Yes, that was a large part of my point. Courts should not decide what damages someone’s reputation based on an imaginary “right-thinking” person, but upon the evidenced intent of the speaker, the intended and/or likely audiences, and their respective opinions about the claimed or implied facts.

  2. Why would you not mention specifically that Hu works for the Dianne Morales campaign? Maybe it’s not a hugely critical fact, but it seems to at least have threshold relevance. I say that with no hounds in this tussle at all, but just annoyed at having to Google for it. Especially when you do take time to mention Hu’s *former* role.

    -hr

    1. Good point — I’ve added Morales’s name (I had originally just said “a mayoral candidate”).

      1. Thank you!!

  3. The Mukasey case is cute and all, but it’s also more than 2 decades old at this point—and by extension the cited authority is at least that old too. It’d be nice to see what more recent cases say on the question. Mr. Burns’ (!) complaint cites a couple of recent cases (along with an LII screenshot from his phone—classy!), but they are just generic. I have to imagine some further developments have taken place since 1998. Also this case looks like it’s staying in NY courts, so an SDNY decision will be at or close to the nadir of persuasive authority.

    BTW, to me, FTP definitely means … File Transfer Protocol!

    1. And I’m totally with you on the FTP. (I even included an aside about that at first, but then decided to edit it out as too much of a digression, given how much else is going on in this post.)

      1. You guys are showing your age … almost no one uses FTP any more. It’s old, slow, and largely insecure.

        1. You’re kidding, right? Well even if that’s true, I hear there’s a hot new technology making the rounds called UUCP. Once we get that working on 4800 bps it’s really going to sizzle!

        2. I, for one, was saddened by the announcement that Firefox was disabling FTP in the current release (88) and removing it in the July release (90).

          But, yes, I’ve also used punched paper tape (and “folded” punched Mylar tape – that stuff was durable!), 110 baud acoustic modems, and keypunch machines. I’ve also used physical switches on the front panel to load a (tiny) bootstrap program into a computer which in turn loaded my microcode from punched paper/mylar tape to implement the instruction set I had developed.

          I guess that “shows my age” but, in my defense, that was all before I was of legal drinking age and I’ve done none of that since so I’m not that old.

  4. “lso facing charges of terroristic threats to burn down the Diamond District ”

    Pfft, this must be fake news because we all know BLM bad actors are never prosecuted, just Jan. 6 bad actors are!

    1. In a better time, he wouldn’t be prosecuted, eh would have been swinging from one of those trees that grows in brooklyn, ideally with a rope tied tightly around his neck.

      1. Cretinous white supremacist says what?

        1. “Cretinous white supremacist says what?”, apparently.

      2. Oh look, the Klan is posting on the Conspiracy.

    2. Please name the person being prosecuted for threatening to burn down the Capitol.

  5. Can a professional hit man sue for damages if he is falsely accused of occassionally having remorse, or perhaps of failing to kill someone?

    By the logic, he can. Such accusations damage his reputation with potential clients, and hence impair his ability to make a living.

    If we are being completely discriptive and completing distegarding questions of “should,” his case would appear to be airtight.

  6. This is a case where the public policy exception to torts would seem particularly appropriate.

  7. Many years ago, I researched this very point and came to the conclusion that what Judge Mukasey said both is the prevailing law and makes very little sense. Maybe I’ll return to it, update it, and write it up.

    1. That would be a real treat. I hope you find time and motivation to do it.

  8. I mean, courts have already admitted that police have no obligation to “serve” or “protect”, are free to ignore crimes they don’t want to stop, can arrest you for things that aren’t crimes, can commit crimes because they’re “scared”, can’t be expected to not shoot unarmed people, don’t have to give people a reasonable chance to comply with orders before being executing them, don’t have to identify themselves as police when giving orders (and if people don’t obey the orders from random people with guns, when those randos turn out to have been police, they can be charged and arrested), that if police kill someone after that person is “swatted” that it’s the fault of the person doing the swatting and the police have no blame (despite that they broke down a door and shot a dude who was never given a chance to comply), and so-on.

    So at this point, would it really surprise anyone if the courts said “yeah, being associated with the police is damaging to your reputation”?

  9. Off topic, but reminded me. Has anyone here seen the “Criminal Lawyer Reacts” guy on YouTube?

    I’m certain some here would be entertained.

    https://www.youtube.com/watch?v=fhC1zrIgRZE&ab_channel=CLRBruceRivers

    1. Note that the rap song names persons “Who I Smoke,” namely “Bibby, Teki and Lil Nine.” Those are the names of rival local gang members who were shot and killed.

  10. “Rapper” is not a job….

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