The Volokh Conspiracy
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Calling Someone "White Supremacist" Based on Comments in Heated Online Debate Is Opinion, and Thus Not Libel
From Murphy v. Rosen, decided yesterday (generally correctly, I think) by Judge Matthew Dallas Gorton (Conn. Superior Ct.):
This is a defamation action in which the plaintiff, Sean Murphy, claims that the defendant, Beth Rosen, defamed him by posting comments on the Town of Southbury Facebook page describing him as a "white supremacist." …
On June 3, 2020, Southbury First Selectman Jeff Manville, Middlebury First Selectman Ed St. John, and School Superintendent Joshua Smith posted the following Joint Statement on the Town of Southbury Facebook page in response to the killing of George Floyd: [Details omitted. -EV] [A long online debate ensued. -EV]
The defendant later posted: "I am so deeply disappointed and enraged by this statement. 'All means all' is a slap in the face to every oppressed and marginalized person in our community. Shame on you for not standing up for those who most need support right now." The defendant also posted: "I've been working for almost seven years within the district to bring about change with the way people who are not white/Christian/ heterosexual/gender-normative are treated and this was like throwing the whole movement in reverse and dropping a brick on the accelerator."
The plaintiff responded to the defendant's posts by saying: "[W]hat a racist and bigoted comment. You are lumping people by race and religion. Gender non-normative is a comment that needs clarification. It means that people like you think it is acceptable to have a five-year-old boy dress as a girl. Normal and sane people call that child abuse." The plaintiff also posted: "Do you think some people should be excluded? She sure does. White Christian males, conservatives, come to mind." (Emphasis added.)
The defendant then posted: "[I]ncluding others does not mean that white, christian, conservative males are excluded. Your fear is that by including the others you will lose your privilege as a white Christian conservative male. That's what White Supremacy is all about. In reality, there can be room for all of us to be equal, but since we live in a patriarchal, misogynist society it's better for you not to have everyone included for fear that equality for all will take away your power. {The plaintiff responded to this post by stating: "Again your post is racist. You are the poster child for the uninformed, brainwashed, self-loathing Caucasian in town."}
When another member of the public who is also not a party to this litigation posted: "My daughters have been called the n word," the plaintiff said: "Provide names, dates, and location of the behavior please." And when the public member asked, "and you are?" the defendant replied: "he's a troll and a White Supremacist." …
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him…. But it is not enough that the statement inflicts reputational harm. To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion. A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known…. In a libel action, such statements of fact usually concern a person's conduct or character…. An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." …
The contours and nuances associated with the law of defamation were recently analyzed in NetScout Systems, Inc. v. Gartner, Inc. (Conn. 2020), where the Supreme Court held that negative comments made by the defendant in its rating report regarding the plaintiff technology company constituted nonactionable expressions of opinion….
{"Generalized statements specifically imputing racism or bigotry are generally … unactionable."} See e.g., Jorjani v. New Jersey Institute of Technology (D.N.J. 2019) where the plaintiff alleged that the defendant had stated the plaintiff was "full of racism, hatred … bigotry, and implied that the plaintiff was a white supremacist." Id. In dismissing the plaintiff's complaint, the Jorjani court noted that "insults, epithets, name-calling, and other forms of verbal abuse, although offensive, are not defamatory… calling someone a racist, hater, or bigot—without more—will not result in defamation liability…. calling [someone] a white supremacist is synonymous with calling [someone] racist, and thus will not result in defamation liability." See also Jones v. Philadelphia (Pa. Cmwlth. 2006) (accusation of anti-Semitism in email following city council meeting was nonactionable); In re Green (Colo. 2000) (holding that accusations of bigotry and racism in letter to judge were based on non-defamatory, disclosed facts and thus were nonactionable); Vail v. The Plain Dealer Publishing Co. (Ohio 1995) (accusations of bigotry and homophobia in newspaper opinion piece were nonactionable); Ward v. Zelikovsky (N.J. 1994) (statements that plaintiffs "hated Jews" were not actionable); Cibenko v. Worth Publishers, Inc. (D.N.J. 1981) (accusation of racism held nonactionable opinion under federal constitutional law); Schwartz v. Nordstrom, Inc. (N.Y. App. Div. 1990) (remark that plaintiff was a "Nazi" deemed unactionable).
Although the court has not identified any other Connecticut cases involving allegedly defamatory statements made on a social media platform, this issue has been addressed in other jurisdictions. See e.g., Feld v. Conway (D. Mass. 2014), where the plaintiff horse owner brought a defamation action against the defendant horse breeding consultant for posting on Twitter that the owner was "[f******] crazy." In concluding that the defendant's statement was mere hyperbole, the court noted that the defendant's statement arose within the context of an online debate. "The tweet cannot be read in isolation, but in the context of the entire discussion. In this case, the tweet was part of a heated internet debate about the plaintiff's responsibility for the disappearance of her horse." "The phrase "[the plaintiff] … is [f******] crazy," when viewed in that context, cannot reasonably be understood to state actual facts about a plaintiff's mental state. It was obviously intended as criticism—that is, as opinion—not as a statement of fact."
Based on the totality of the circumstances presented here, …. [g]iven the often heated and controversial nature of political arguments generally, and the extremely heated and hyperbolic nature of the debate taking place between the plaintiff, the defendant, and others, it is the court's view that no reasonable jury could conclude that the defendant's comments constituted anything other than an expression of the her opinion of the plaintiff based on her own observations and interactions with him….[T]he defendant made a general statement about the term "white supremacy," and then expressed her opinion of the plaintiff within that context based on her observations of and experiences with him.
In reaching these conclusions, the court is mindful that the defendant's statement cannot be read in isolation. Instead, the defendant's statements must be analyzed within the context of the entire discussion taking place on the Town of Southbury Facebook page, which the court has already noted was heated and hyperbolic. Finally, the court concludes that the defendant was expressing an opinion of the plaintiff based on her understanding of the phrase "white supremacy" rather than making stating of fact premised on the plaintiff's more formal definition of that term…. In reaching this conclusion, the court notes that the online debate included terms that were loose, figurative, and hyperbolic, rather than precise, literal, and objectively capable of being proved true or false. The court also notes that the plaintiff himself at one point labeled the defendant's comments "racist and bigoted."
{The court notes that under different circumstances, it might reach a different result. For example, if the defendant had made these same comments in a private business setting to a limited number of people who were considering hiring the plaintiff, the use of such inflammatory language might be actionable, depending on the totality of the circumstances.} …
Apropos the last paragraph, it seems to me the key distinction isn't between a private business setting and a public setting, but rather between allegations of specific behavior to which the defendant is supposedly privy (e.g., "I worked with him before, and I saw him treating people badly because they were black," which would be a factual assertion) and characterizations of comments or actions equally known to both parties (e.g., "that statement is racist," which would be a statement of opinion).
Congratulations to Anthony R. Minchella of Minchella & Associates, who represented the defendant.
