"The Mudslinging Has Begun": Is It Defamatory to Falsely Accuse Someone of Being an Academic?

There's a pretty famous story about Daniel Patrick Moynihan, which George F. Will relates in some detail:

[I]n 1976 was when Pat Moynihan, late of the Harvard faculty, won the Democratic nomination to run against the incumbent U.S. senator from New York, James Buckley. Over at Buckley headquarters Jim said he looked forward to running against Professor Moynihan, and he was sure Professor Moynihan would run the kind of high-level campaign one could expect from a Harvard professor. A few minutecs later, back at Moynihan headquarters Pat met the press. A reporter informed him that Jim Buckley was referring to him as "Professor Moynihan." Pat drew himself up to his full, considerable height and said with mock austerity, "Ah, the mudslinging has begun."

Well, I just came across a case that seriously considers the issue of whether (here, falsely) accusing someone of being an academic is defamatory. From Justice Christopher Barry-Smith in Tuvell v. Marshall (Mass. Super. Ct. 2017), a libel lawsuit that stemmed from a commenter banning controversy at the Ethics Alarms blog:

Tuvell takes particular issue with Marshall's statements in the Initial Post that the author of the email was an "academic" and that the "American Left" (which includes academics) "have gone completely off the ethics rails since November 8, 2016." Even if Tuvell had been identified as the author of the email, these statements could not serve as a basis for a defamation claim. The term "academic," even when used in this context, cannot be properly viewed as a statement that "would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community" and is therefore not defamatory. Phelan, 443 Mass. at 56 (emphasis added)….

Good to know!

Comments

[Michael P]

That level of scorn and ire is, of course, reserved for lawyers -- not that a court is likely to recognize that fact.

[DaivdBehar]

Academic? Dismissed.

[Stephen Lathrop]

I note with caution that the court seems in its consideration to discount the scorn, hatred, ridicule or contempt of the not-respectable parts of the community. From where I sit, those sometimes look like the more-concerning part of the public, and thus the subset I want the law to defend me from. I cannot imagine any justification for deciding a case only on the basis of, "respectable," opinion.

[Rossami]

Wow, another masterpiece of logic.

How, precisely, are you harmed by the bad opinions of people you do not respect? Without a cognizable harm, what exactly do you claim to need protection from?

[Dilan Esper]

In general, you are right. But as I understand defamation law, you can certainly make claims of subjective harm in your social group.

For instance, I once had a case involving a conservative Black minister who was falsely accused of being gay. It settled, but I did a fair amount of research on it before then. A lot of caselaw elucidates the modern rule that calling someone gay isn't automatically defamatory anymore, because there's nothing wrong with being gay. But if falsely being labeled "gay" harms your reputation in your particular social group (like, say conservative Christian ministry) it could still be actionable.

I doubt there's really any social group where being called an academic could do serious harm to someone, but that principle is out there and is a real part of defamation law.

[CJColucci]

An amusing example is Ben-Oliel v. Press Pub. Co., 251 N.Y. 250 (1929). Plaintiff was an expert and lecturer on Palestinian life and customs. Someone wrote and published an article, falsely attributed to her, containing arrant nonsense that anyone expert in the area -- a very small group -- would recognize as such. The small number of persons who would know enough to think less of Ms. Ben-Oliel if she were in fact the author of this nonsense did not stand in the way of recovery.

[Ridgeway]

Dilan -- I wonder if it works both ways, though. If I were to falsely accuse an openly gay man of being straight, could that be defamatory if he claims it harms his professional or social standing? When accusing someone of being gay, that draws on the history of such accusations which have historically been considered defamatory per se. But calling someone straight does not come with that historical baggage.

Maybe the better argument in my example would be that the statement implies that the ostensibly gay man is a liar or hypocrite, which would normally be defamatory if stated directly.

[Krychek_2]

I can't off the top of my head think of a situation in which someone would be thought less of for being straight, but if such situations exist, probably.

Funny story: Several years ago, Tom Cruise sued a publication for saying that he was gay. This was, by my count, Tom Cruise's fifth lawsuit or thereabouts in which he sued people for saying he was gay. I found his lawyer's email address and sent him an email that said, "Your client sure is spending an awful lot of money to convince people he's not gay." Never did get a response.

[Ridgeway]

Think of Rachel Dolezal being outed as "white." Had that claim actually been false, I could see her having a plausible defamation claim.

[Rossami]

That's true, Dilan, but only because the people in your social group are (presumptively) people whose opinions you respect. Stephan's claim requires the identification of harm from loss of reputation among people whose opinions he has already said he doesn't respect. I don't think the caselaw you found would apply to that scenario.

[Old Smokin' Egg]

I think Stephen Lathrop's pointing out that if one is the object of the hatred and contempt of certain non-respectable portions of the community, one's at increased risk of their manifesting their hatred and contempt in more concrete fashions.

For instance, suppose Lathrop lives in a neighborhood where gang crime is rife and where "snitches get stitches" is a reality. If I publicly portray him as a fervent supporter of law enforcement, it might well enhance his reputation with the respectable elements of the community; but he might nevertheless have good reason to fear for his life, health, property, or family.

[CJColucci]

Many years ago, I began, but never finished, an article on precisely that point. Maybe, as retirement looms, I'll dust off and update the research a finish it.

[Rossami]

Stephen's fears of actual harm (whether justified or not) are irrelevant here. Both the court case above and Stephen's own comments were limited to the court's consideration of "the scorn, hatred, ridicule or contempt of the not-respectable parts of the community".

[CJColucci]

That does seem to be the law, but my unfinished article suggested that it should not be if some legitimate interest of yours is compromised by false statements that would hurt your standing only in non-respectable parts of the community. To take a true example, I was involved in a legitimate academic project that involved interviewing hookers. I had to persuade them that I would not tell the cops what I learned, did persuade them, and got lots of useful information. If someone falsely reported that I was a police informant, that would probably not affect my reputation among respectable people, but it would have severely compromised my research by destroying my reputation among the hookers.
There may be reasons for not allowing me to sue, but the cases saying I shouldn't aren't especially persuasive.

[Rossami]

At risk of being pedantic, your example is off-point. The hookers in your example may not be "respectable" but you clearly did care about their opinion - specifically, their opinion about whether you were a cop or not. The question above asks about harm in the specific sub-case where you've already said that you don't care about their opinions.

[CJColucci]

You might not care about them, but they, and others influenced by them, might care about you and, consequently, do you harm. Of course you'd have to prove that, and you might not be able to, but a thick skin does not, by itself, defeat a defamation claim.

[Michael P]

Does an attenuated cause/effect relationship make speech punishable by the government? Or does long-established case law on First Amendment protection of advocacy of illegal conduct preempt that argument?

[JohannesDinkle]

At least he was not labelled a journalist.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Your "libeled" got auto-corrected.

[Ridgeway]

prolly by a journalist

[mydisplayname]

Indeed, very good to know! 🙂

[MonitorsMost]

Eugene,
While I applaud you for knowing that the number one rule of Reason is “never read the comments,” Tuvell is not a stranger to these parts. He had some spirited craziness with the comments. In fact, if I remember correctly, he made some comment here around the same time he commented at Ethics Alarm.
https://reason.com/volokh/2018/06/12/ill-be-on-reddit-tomorrow-wednesday-for/?amp
And here’s his crazy pants website.
https://judicialmisconduct.us/

[Jimmy the Dane]

I can't recall the movie which I think was a Western (and the internet is not giving up an immediate answer), but the two main characters remark:

"Sir, you are a scholar and a gentleman!"
"I'll let you know those are fighting words in these parts."

[John F. Carr]

I had a job where academic thinking was frowned upon. Isn't (program) something they use in university courses, my boss asked skeptically.

[Rev. Arthur L. Kirkland]

Does this holding rely on a determination that poorly educated, broadly intolerant, disaffected, backward people -- the obsolete culture war losers for whom "academic" is a badge of dishonor -- are not a considerable and respectable element of modern America?

It would be difficult to argue against such a conclusion.

[David Nieporent]

Long time VC readers might recognize the name "Tuvell." He's a kook who spent a few months here trying to gin up support for his "judicial misconduct" notion that every case that failed to go his way proved that judges were corrupt. He was still bitter over a decade old employment dispute he had had with IBM in which he lost on summary judgment because all the undisputed facts were on the other side, with him claiming to have been disabled with PTSD because like 20 years earlier he hadn't gotten a job with Microsoft.

[MonitorsMost]

I linked to it above.

[David Nieporent]

Yes, sorry. Didn't see that before I posted.

(Though what you linked to was only one of the VC threads Tuvell took over.)

I actually checked back at Tuvell's website about six months ago out of morbid curiosity. I was mildly disappointed to find out that after his SLAPP suit against Marshall got tossed by multiple courts, he hasn't come up with a new case.

[MonitorsMost]

I could t find the first Tuvell thread.

[Teavee]

Better block off some time on your calendar:

https://readingma.us/GovtZone/SchoolCommittee/Main/CapHillIncident
https://readingma.us/GovtZone/SelectBoard/Main/OML

[Shamie Ervin iv]

Moynihan was a class act. I miss those ol' colorful guys like Estes Kefauver, Wilbur Mills, Everett Dirksen, Strom Thurmond, and Daniel Patrick Moynihan. All colorful and memorable. I'm having trouble remembering the name of the klanster from West Virginia. He was funny too, and a great musician.

The prof has a great sense of humor. I think he's warm-blooded after all.... and his brother too. Both poetic and lovers of poetry.

[Ridgeway]

Robert Byrd? I could unfortunately probably come up with more with a little research.

[Rev. Arthur L. Kirkland]

It isn't often that you encounter the sentiment 'I miss Strom Thurmond' these days.

At least, not in modern, educated, decent society.

[B-Man]

I think Will had it ("late of the Harvard faculty") wrong; Moynihan was still on the faculty and had an office in Harvard's Littauer building. He won that election in November '76, and I ran into him early the following morning outside his office as he searched through his pockets for something. As I passed, I said "Good morning Senator! And congratulations!" He nodded and smiled, and kept searching. It struck me as very odd that, on the morning after being elected Senator from New York, he was (1) not in New York but in Cambridge, (2) awake, (3) all alone, and (4) still very much the (brilliant, but absent-minded) Harvard professor.