The Volokh Conspiracy

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Free Speech

Not Libel or IIED to Accuse Ex-Son-in-Law of Trying to Turn His Daughter (Accuser's Granddaughter) Lesbian,

at least in text messages to the grandchildren.


From James v. McGuinness, decided today by the Indiana Court of Appeals, in an opinion by Judge Edward Najam, joined by Chief Judge Cale Bradford and Judge Mark Bailey:

James was married to McGuiness' daughter, Nicole Smith, until 2008. During the marriage, James and Smith had two children, Luca and [Shae], both of whom are now adults. For the past fourteen years, James has been in a same-sex relationship….

Scott assert[s] that McGuiness had sent Shae a text message with the following statements: "I will accept your father has turned you into a monster like himself"; "He hates us because we are educated, normal, and respectable"; "We may not have his money but what we have we earned"; and "He wanted to use you as a tool to move to Miami which has a large homosexual population." In addition, James claimed that McGuiness had stated to Luca and other individuals that James was "trying to 'turn' Shae gay," that he was "trying to lure Shae to Florida to entice her into the gay lifestyle," that James "was disgusting," and that "being gay is disgusting." …

The court held that McGuinness's statements didn't qualify as defamation:

"Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff." … [Under Indiana law,]

[a] defamatory statement is said to either be "defamatory per se" or "defamatory per quod." A communication is defamatory per se if it imputes: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person's trade, profession, office, or occupation; or (4) sexual misconduct. All other defamatory communications are defamatory per quod….

For a statement to be actionable as defamatory per se, it must not only carry with it one of the four defamatory imputations—criminal conduct, loathsome disease, misconduct in profession, or sexual misconduct—but it also must "constitute a serious charge of incapacity or misconduct in words so obviously and naturally harmful that proof of their injurious character can be dispensed with. The offensiveness of the statements cannot be determined by how the plaintiff views the statement; the defamatory nature must be present in the nature of the words without any additional facts or circumstances to give context." …

None of [McGuinness's] comments impute any loathsome disease. Further, while McGuiness' statements regarding James' money may imply that James did not earn his money in the traditional way, it does not impute any misconduct in his trade or occupation or criminal misconduct. And, contrary to James' assertions, McGuiness' statements regarding James' attempts to turn Shae gay or to entice her into the gay lifestyle do not impute any sexual misconduct. As a result, McGuiness' statements "fall[ ] short of the type of statement covered by a claim of defamation per se." …

James contends that, even if McGuiness' statements are not defamatory per se, they are defamatory per quod…. [But] while McGuiness' statements may have been rude and disparaging, they … cannot be imbued with the defamatory meaning suggested by James….

And the court also rejected James' intentional infliction of emotional distress claim:

To establish a claim of intentional infliction of emotional distress, a plaintiff must prove by a preponderance of the evidence that the defendant (1) engaged in extreme and outrageous conduct (2) which intentionally or recklessly (3) caused (4) severe emotional distress to another…. "The conduct must be particularly deplorable to meet the extreme and outrageous requirement."

Conduct is extreme and outrageous only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

"If reasonable persons can differ regarding the extremity and outrageousness of certain conduct, then the matter should be left to a jury's determination."

On appeal, James alleges that he stated a claim for which relief could be granted because McGuiness' "actions were a clear attempt to undermine [and] destroy [James'] relationship with his children, and reasonable persons, consistent with today's prevailing norms and values, could find such conduct outrageous." But even if James' contentions were true, we conclude that McGuiness' statements do not constitute "outrageous" behavior. Again, McGuiness sent Shae messages saying that James is a "monster," saying that James disliked them for being "normal," saying that he wanted to use Shae as a tool to move to Miami, and implying that James did not earn his money. And McGuiness told Luca James was trying to "turn" Shae gay, that James was "disgusting" and that being gay is "disgusting."

Even considering the facts in the light most favorable to James, reasonable persons would not differ regarding the extremity and outrageousness of McGuiness' conduct. While we certainly do not condone McGuiness' conduct, nothing about her statements is so extreme in degree as to go beyond all possible bounds of decency and should be regarded as utterly intolerable in a civilized society….

Congratulations to William N. Riley and Sundeep Singh of RileyCate, LLC, who represented McGuinness.