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Free Speech

When Are Slurs and Vulgarities Defamation?

The Mississippi Court of Appeals splits 5-4 on the subject.


From Fagan v. Faulkner, decided Tuesday by the Court of Appeals of Mississippi, in an opinion by Chief Justice Donna Barnes, joined by Judges Jim Greenlee, Anthony Lawrence, Joel Smith, and John Emfinger (expurgations in original):

Judy Faulkner sued Dr. Bryan Fagan for defamation of character and intentional infliction of emotional distress in the County Court of Lee County. At the time of the incident at issue, Faulkner was a surgical scheduler at the center where Dr. Fagan, an orthopaedic surgeon, worked in Tupelo, Mississippi. The suit arose from a one-time outburst Dr. Fagan had in the operating room where he called Faulkner a "f––king c-nt" ("FC") in front of approximately four other individuals after the parties had an argument over surgical scheduling.

After a bench trial, the county court entered a judgment in favor of Faulkner for $30,000 on the defamation claim of slander. Dr. Fagan appealed, and the Lee County Circuit Court affirmed the county court's judgment. Now, on appeal before this Court, we find the elements of slander were not met; therefore, we reverse and render the circuit court's judgment….

The trial court's ruling that the elements of falsity (unprivileged due to malice) and actionability were met was based on the finding that Dr. Fagan used the words as commentary on Faulkner's job performance. We do not find that to be the case.

"The common law has always differentiated sharply between genuinely defamatory communications as opposed to obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse." "Such statements may be hurtful to the listener and are to be discouraged, but … are not actionable" "no matter how obnoxious, insulting, or tasteless." … The Mississippi Supreme Court has recognized that "name calling and verbal abuse are to be taken as statements of opinion, not fact, and therefore will not give rise to an action for libel." …

No evidence showed that Dr. Fagan called Faulkner this expletive because he was disparaging her professional capabilities. Dr. Fagan testified that he did "[n]ot necessarily" use the words because he did not like how she performed her job; instead, he "was upset about the situation that happened, and that was just what I said." He testified that he "was not happy that the cases didn't get switched. That was the whole point of the argument." He later testified, "I don't think I was making a generalized statement at that point about how she overall does her job…. I think it was more … about that situation…. That I don't think it was handled correctly." He also testified that he was upset and embarrassed by what he said, that he should not have said it, and that he has not used that language since then….

[An] analogous case is Tipping v. Martin, No. 3:15-cv-2951-BN, 2016 WL 397088 (N.D. Tex. Feb. 2, 2016). In Tipping, an off-duty journalist had an altercation with a sculptor at an art festival.. The female journalist took photographs of artwork without the permission of the sculptor, who became upset. He told her the sculpture was protected by copyright and demanded she delete the photographs from her digital camera. She refused and showed him her press badge. The sculptor became irate and "shouted that 'if' [she] was a journalist, she was a 'whore, cunt journalist slut.'" He continued to repeatedly shout this statement, "whereupon [the journalist] displayed her middle finger to Defendant, who took a picture of same." Ultimately, the journalist lost her job due to the photograph of her middle finger.. The journalist sued the sculptor for numerous claims including defamation, but the district court granted the defendant-sculptor's motion to dismiss. The defendant argued that the insulting statement was one of opinion, not fact, and did not rise to the level of defamation. The district court looked at the context of the statement and reasoned that although "cunt" may impute an unchaste female, under the circumstances the insult was not "intended to be taken literally as statements of fact." The district court noted the sculptor had no knowledge of "her personal life or the quality of her work as a journalist." The district court concluded that "[p]urely subjective assertions or opinions that do not imply the existence of undisclosed facts and do not misconstrue the facts are not actionable as defamation. … '[T]he law provides no redress for harsh name-calling.'" {In our case, Faulkner has made no claim that Dr. Fagan was attempting to impute an unchaste character to her.} …

Judge David Neil McCarty, joined by Presiding Judge Virginia Carlton, Judge Latrice Westbrooks, and Judge Deborah McDonald, dissented:

[Q.] Okay. In an operating room, you made an offensive comment about Judy Faulkner, correct?

[A.] I made the statement that we were talking about.

[Q.] You called her a fucking cunt?

[A.] Yes.

[Q.] That's because you couldn't flip your surgeries around, correct?

[A.] I was upset about not being able to change the order of the cases.

Dr. Bryan Fagan (during trial of this matter on July 21, 2021).

Nearly a century of law allows a Mississippian to file a lawsuit against another when there is "any attack on the capabilities of a plaintiff in [her] trade or profession." … This does not mean that all words are actionable; our court system does not exist to safeguard hurt feelings or to shield delicate ears. But when the words used can damage another's ability to do business, or their reputation for business, we have allowed a lawsuit to go forward….

[T]he background here is largely uncontested. Dr. Bryan Fagan wanted to swap patients one day so he could use a preferred machine for shoulder surgery. But he had a knee reconstruction scheduled first. The doctor wanted to do the operations in the order he wanted, not how they were scheduled by the nurse at the clinic.

The nurse in charge of scheduling, Judy Faulkner, flatly told him the surgeries would not be rearranged at his whim. Dr. Fagan later testified:

I was upset at the situation of not being able to switch my cases. And in that discussion with Ms. Faulkner, when I was made aware I would not be able to switch them, I asked her to go tell the family that they would have to wait. And I was told no.

The doctor further told the trial court he sometimes had a problem with the way Faulkner scheduled his surgeries. "It's all up to Judy," he lamented.

So after the blunder with the surgeries—and after the nurse told him that she would not tell the patients they would have to wait—the doctor pitched a fit. Dr. Fagan testified "the 'C' word was being talked about in surgery, and that's when I made the comment about Judy."

[Q.] So you said it – –

[A.] It was my opinion. Just – –

[Q.] So you stated that Ms. Judy was a cunt to many other people?

[A.] There were four or five people in the room.

[Q.] And you specifically said Ms. Judy Faulkner whenever you were using the word cunt?

[A.] I used her first name, yes.

[Q.] Because you didn't like how she performed her job; is that correct?

[A.] Not necessarily. I was upset about the situation that had happened, and that was just what I said….

[A.] I was not happy that the cases didn't get switched. That was the whole point of the argument….

This wasn't someone just screaming vulgarities at someone online, or a firefighter saying another was a thief. These were work colleagues, in the workplace, and it was about work, and reasonable minds could believe that the doctor was commenting adversely on the professional conduct of the nurse. As counsel for the nurse argued in closing before the county court, "This isn't about the use of the 'C' word and the F'ing 'C' word so much as it is about her being able to do her job." … [I]t was reasonable [given the evidence at trial] for the trial court to infer the intent of Fagan's statement as referencing Faulkner's abilities within her profession. Upon that finding rested the circuit court's conclusion that "there existed sufficient evidence for the trial court to find that Fagan's statements were not simply vulgarities, or profanities, but were actionable under the law for slander, irrespective of special harm." …

Congratulations to Mark Nolan Halbert and Brandi Elizabeth Soper, who represent appellant.