The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Letter to Employer Calling Employee's Outside Actions "Racist" Is Constitutionally Protected Opinion


From today's opinion of the Delaware Supreme Court in Cousins v. Goodier, written by Justice Gary Traynor:

This appeal presents difficult questions concerning the actionability of speech that is defamatory—that is, injurious to a person's reputation—but that is defended on the ground that it is an expression of opinion and not of fact. We are asked to decide whether the First Amendment bars claims for defamation and tortious interference with contract against a defendant who, in an email to a law firm, described as "shockingly racist" a lawsuit filed by one of the firm's partners in his personal capacity. The suit aimed to preserve a nearby high school's "Indian" mascot.

The partner, who claims to have lost his position with the law firm [Bayard, P.A.] because of the email, sued his detractor, contending that the characterization of his lawsuit is demonstrably false and pleading four causes of action, including defamation and tortious interference with contract…. [We conclude that t]he statements at issue do not on their face contain demonstrably false statements of fact, nor do they imply defamatory and provably false facts. As statements concerning an issue of public concern, moreover, they are entitled to heightened First Amendment protection and cannot form the predicate of the plaintiff's tort claims….

The court concluded that "[defendant] Goodier's email to Bayard was speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos," and thus was entitled to the protections of the Court's First Amendment libel jurisprudence, even though it was just sent to plaintiff's employer. It then reasoned that the e-mail was opinion:

Among other charges, Goodier's email alleged that [plaintiff] Cousins' Unionville Lawsuit was "shockingly racist and tone deaf" and that it included "shockingly racist statements by Mr[.] Cousins about protecting his white, Christian heritage." Because we have determined that the email addressed a matter of public concern—the use of American Indian iconography in sports logos—we must now decide whether Goodier's heated statements are provably false or, if they are not, whether they imply the existence of actionable defamatory facts about Cousins. In our view, an ordinary reader would not understand Goodier's email in this way….

We begin with Goodier's statements themselves, suspending for now our consideration of whether they imply any defamatory and provably false facts about Cousins. We do not believe that these allegations, which turn on Goodier's personal view of what is racist, are provably false. It cannot be denied America is in the midst of an ongoing national debate about what it means to be racist. To be sure, there is nearly universal agreement that some behaviors are racist: these include the use of racial slurs, the practicing of overt racial discrimination, and the commission of racially motivated violence. Indeed, instances of racial discrimination are commonly litigated under Title VII of the Civil Rights Act of 1964.

But when a wider net is cast, this consensus quickly vanishes: it is clear to us that Americans disagree about a long and growing list of things that to some are racist and to others are not. It is not our role here to enter into this debate and decide who is right and who is wrong. In fact, we think that the First Amendment is clear that doing so would be the opposite of our role. It suffices that we conclude that Goodier's statements, on their face, cannot reasonably be interpreted as stating actual facts. Ordinary readers of her email, instead, would understand her adjectival use of the word "racist" and her reference to Cousins' "white, Christian heritage" as expressing her subjective interpretation of the tone and objectives of the Unionville Lawsuit. That interpretation, in our view, is not, without more, objectively verifiable as true or false. {See, e.g., Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (concluding that the term "racist" has been used so variously as to have been "drain[ed] … of its former, decidedly opprobrious meaning" and to now "fit comfortably within the immunity for name-calling.").} …

[S]tatements may be actionable not only if they are provably false themselves, but also if they can be reasonably understood to imply defamatory and provably false facts about the subject…. This implication is actionable, according to Cousins, because Goodier did not include the Unionville Lawsuit in her email to Bayard, leaving the firm's partners to speculate, for example, about what "shockingly racist" statements Cousins made. We disagree.

Cousins is correct that, as reproduced in the record, Goodier's email does not attach, or contain a link to, the Unionville Lawsuit. But his argument that Goodier failed to disclose the factual basis for her statements fails to account for the other information Goodier shared with Bayard. Although she did not provide the Unionville Lawsuit, Goodier did include a link to a newspaper article that described the lawsuit…. From this excerpt alone, it is clear that the article explained Cousins' lawsuit and included statements made by Cousins in the Unionville Lawsuit:

"Certainly, American history is replete with horrific acts of violence against Native People," Cousins said in the suit. "It is without question that Man's Laws have failed to live up to our founding principles based on Natural Law. Anyone who suggests that Native People have never been victimized has not seriously studied American history. We need to study history — not cancel it, revise it or eradicate it — in order to ensure that the victimization of Native People never happens again. Simply claiming that Native People were victimized in the past, however, is unrelated to whether the Unionville High School Mascot honors these great nations and the proud history of Native People."

The article also stated that "[i]n the court filing, Cousins describes himself as a Christian, adult, white, heterosexual male" and that, according to Cousins, his "ancestors were not white European imperialists" and did "not believ[e] that they were inherently superior to non-white groups, did not support the genocide of the Native Peoples[,] and fought to end 250 years of African slavery."

Additionally, in his complaint in this case, Cousins describes himself as a controversial figure within the Bayard firm and, "for over 2½ years, … a leading opponent" of the Unionville School District's efforts to retire its mascot. The complaint also acknowledges that the mascot had, in the past, spawned "stereotypical iconography and a tomahawk chop cheer." And, as discussed above, the complaint we evaluate in this appeal quotes liberally from the article about the Unionville Lawsuit that Goodier shared with Bayard. Thus, it was abundantly clear to the members of the Bayard firm who read and acted in response to Goodier's email and the included news report that the objective of the lawsuit about which she complained was the preservation of the Unionville Indian mascot, a cause that Cousins had apparently pursued in a prominent fashion for years. And it is this cause that Cousins concedes is the target of Goodier's charge of racism.

To put the point in a nutshell, … the essential fact upon which Goodier based her accusations was disclosed to the readers of her email at the Bayard firm. Those readers, moreover, were sophisticated lawyers who knew how to find the Unionville Lawsuit, even if the record does not show at this stage whether they in fact reviewed it. Indeed, Cousins admits that Bayard's president told him that none of Cousins' partners at the firm agreed with the Unionville Lawsuit. Taken together, these facts indicate to us that the recipients of Goodier's email did not have to speculate or wonder about the facts underpinning Goodier's statements. This reality is sufficient to defeat Cousins' claim that Goodier's email implies defamatory facts about Cousins that are provably false….

And the court also rejected plaintiff's tortious interference with business relations claim, because "when a tortious interference claim rests on statements that are protected by the First Amendment and no additional improper conduct is alleged, the tortious interference claim must fail." And it took much the same view as to plaintiff's tortious interference with contract claim. It closed:

Throughout these proceedings, both in the Superior Court and in this Court, Cousins has passionately insisted that the positions he took in the Unionville Lawsuit were well-intentioned and tolerant. He also points up that his participation in the lawsuit was a protected exercise of his First Amendment rights—a fact that no one, least of all this Court, contests. But Cousins' choice to lead the charge on one side of a controversial and sensitive public debate carried with it the predictable consequence that others of a different mind would exercise their own First Amendment rights in opposition.

We offer no opinion on the merits of the controversy underlying the Unionville Lawsuit. Nor do we pass judgment on the civility of the means Goodier chose to air her grievance about the lawsuit. Our concern here is limited to whether her response gives rise to actionable state tort claims in light of the Free Speech Clause of the First Amendment. We hold that it does not ….

Generally seems quite correct to me, for reasons I've mentioned before, such as in this post. Congratulations to Rodney Smolla (now the President of the Vermont Law and Graduate School, and former Dean of the Widener University Delaware Law School) and to Douglas Herrmann of Troutman Pepper Hamilton Saunders LLP, who represented defendant.