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Free Speech

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.

|The Volokh Conspiracy |

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.