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Libel Case Based on Allegations that Plaintiff Had Made Specific Racist Statements Can Go Forward
The plaintiff, Frank Gogol, and the defendant, Malissa White, are both comic book writers.
From Gogol v. White, decided by L.A. Superior Court Judge Deirdre Hill in December:
In the complaint, plaintiff alleges that he is a San Francisco-based accomplished comic book writer. Defendant is also a comic book writer. On August 4, 2021, defendant published a series of posts or "tweets" that falsely describe a social interaction she had with plaintiff four years ago. Defendant's tweets falsely claim that plaintiff called defendant a racial slur at the 2018 New York Comic Con Barcon; that plaintiff said, "I don't know why people think black women are attractive."; that plaintiff told a "joke" about how black people look; and that plaintiff was openly racist. Defendant's tweets contain false assertions of fact. Defendant published the defamatory statements for the purpose of harming plaintiff.
Plaintiff further alleges that the comic book industry is a relatively small and close-knit profession, where an author's reputation is paramount. As such, despite his accomplishments as a comic book writer, plaintiff is not a public figure and has not achieved pervasive notoriety or fame.
Plaintiff also alleges that on October 6, 2017, plaintiff attended a networking event at Mulligan's Pub in NY City with a former classmate. Later that evening, plaintiff and his classmate were joined by his classmate's friend, who arrived with several individuals, including defendant. Plaintiff introduced himself to defendant upon her arrival and then conversed with his classmate for the remainder of the time the groups spent at the pub. Plaintiff had never met or spoken to defendant prior to that night. After about half an hour, the group collectively agreed to relocate to a restaurant called Azyz. The group walked to Azyz and remained there until 2:00 a.m. when the restaurant closed. At that point everyone in the group went their separate ways. At no point during the night, other than to introduce himself, did plaintiff speak to defendant….
Plaintiff alleges that defendant's August 4, 2021 Twitter posts stated the following:
"Ive [sic] been afraid to tell this story for backlash for YEARS. But here we go: Frank Gogol @frankgogol called me a racial slur at 2018 NYCC Barcon. So, the tea: I met him through a mutual friend. As soon as he showed up, he was giving me openly disgusted look, talking over me. I asked my friend what his deal is, told the two women in my party what has happening….We go to dinner after meeting up. Gogol gets drunk and loud, centering himself so much we all got quiet. He began complimenting my two friends on how hot they are… My friend says that she thinks I'm hot……. Gogol then says, I don't know why people think black women are attractive. Then goes on to make a 'joke' about how black people look. I won't give it air. I shoot up from my chair, read [sic] to curse this man out… but think better of it. I step outside. Pace the sidewalk enraged. I'm trying to work in this industry. This industry is predominantly white men. And comics is a six degrees industry. But the audacity on Gogol to be openly racist and just an entitled prick needs to be checked. My friend comes out and reminds me that he's a big deal, that my career would be over. I listened to her and left."
Plaintiff alleges that contrary to the "defamatory statements," he did not use or call defendant by a racial slur at the 2018 NYCC or at any other time; he did not say "I don't know why people think black women are attractive"; plaintiff did not tell a "joke" about how black people look; and he did not engage in any behavior that could arguably be described as racist….
"[B]ecause the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability." … "'An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true.
An opinion is actionable if it discloses all the statements of fact on which the opinion is based and those statements are true [but the cited case says 'false,' and in context it appears that this judge meant 'false' as well, and inadvertently wrote 'true' -EV].'" Ruiz v. Harbor View Community Assn. (Cal. App. 2005).
Here, the court finds that the allegations are sufficient because whether plaintiff made the statements on which defendant's opinion that plaintiff is "openly racist" is capable of being proved true or false.
As to whether plaintiff is a public figure, … the allegations on their face are sufficient that plaintiff does not fall into either of these two categories. Further, "'[s]uch a determination [of public figure status] is often a close question which can only be resolved by considering the totality of the circumstances which comprise each individual controversy,'" and thus would be improper on demurrer [i.e., a pre-discovery motion to dismiss].
The court also allowed the punitive damages claims to go forward, "because plaintiff pled that defendant fabricated lies about him willfully and intentionally." I'm quoting the tentative ruling here, but it was "adopt[ed] as the order of the court." And the ruling seems correct to me, though of course none of this resolves who is actually telling the truth here.
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Isn’t “attractive” an adjective? Isn’t “racist” also an adjective? How can this be defamation except for the Democrat Judge Deirdre Hill promoting case churning for rent seeking?
Of course, Volokh supports this decision for the rent. The plaintiff lawyer should be fined court costs for wasting the time of the court, instead. To deter.
Did the plaintiff have an alcohol memory blackout? He could be sincere in denying making those statements, not lying. Now, we are spending $thousands on drunken revelry of years ago. The judge needs to be fired. Volokh is ridiculous in his opinion, as usual.
If the publication injured the plaintiff financially, sue those damaging him, not the defendant. Is there anyone who is not an idiot in the law and in commentary on the law?
Whether the guy said those words is a fact. That’s what the case is about.
I don’t get what you mean. White says that Gogol (a) called her a racial slur, (b) said he doesn’t know why people find black women attractive and (c) told a racist joke. Gogol’s career in comics crashed and burned as a result.
If those statements are true or White reasonably believes them to be true, then it’s not defamation. On the other hand, Gogol claims that some or all of the other people there will testify that those things didn’t happen.
It will be a tough evidentiary case, particularly if some of the people who were there back up White, but if Gogol can prove her statements were false, it seems like defamation.
(“Attractive” being an adjective isn’t IMHO relevant – the issue isn’t that White called Gogol unattractive, it’s that she alleged he made a specific racist statement which he denied. As for “racist” being a matter of opinion, I think that would depend on the joke. If everyone agrees what joke Gogol told, and reasonable people could disagree about whether it was racist, then sure, he loses on that point, but I assume if an opinion is not disclosed and is completely unreasonable, then it can still be defamatory.)
“I don’t get what you mean.”
Don’t fell bad, he doesn’t either.
Why is the court applying California defamation law to an incident that happened entirely in New York?
Did the parties argue for some other law? If not, the judge can assume they are agreeing to the local law.
I assume that where the incident happened is irrelevant, but that there might be some complicated venue issues about where the tweets happened.
You’re the lawyer though, so you’d know better.
1. Generally speaking, the choice of law rule in such libel cases is the state of the law where the plaintiff was domiciled. See Restatement (Second) of Conflicts of Laws § 150:
2. As TwelveInchPianist notes, even if courts were instead to focus on the “place of the libel,” whatever that might mean for online publication, should control, there’s no reason to think that the libel itself (as opposed to the incident being discussed in the libel) somehow particularly took place in New York.
3. I also suspect Bored Lawyer is right to assume that the parties likely didn’t argue for any other law (likely because #1 is generally well-settled), though I haven’t read the parties’ papers.
Let’s spend $thousands in legal fees, on the rude words of a drunk who forgot he said them.
I think it would be funny if he reads this thread and decides to sue you, too, for libel. Might not prevail (if for no other reason that no one here seems to take DavidBehar rants as anything resembling facts). But would be funny nevertheless.
I mean…. “Tort case alleging that defendant ran red light” seems about as newsworthy.