Allegations That Particular Conduct Stemmed from a Racist Motivation Generally Aren't Defamatory

(though false allegations  about the details of the conduct may be).

From Cooper v. Franklin Templetion Investments, decided Thursday by the Second Circuit (Judges Rosemary S. Pooler, Barrington D. Parker and Alison J. Nathan):

On May 25, 2020, Plaintiff, a white woman, encountered Christian Cooper (no relation), a black man in Central Park, while she was walking her dog and he was birdwatching. Plaintiff alleges that Mr. Cooper confronted her, and his "intentionally aggressive actions" caused her to "fear for her safety and the safety of her dog." She alleges this fear caused her to warn Mr. Cooper that she would tell the police there was "an African-American man threatening [her] life," and then to place a 911 call to that effect. The confrontation, which was recorded on a video that went viral, "became international news as a racial flashpoint." Plaintiff alleges that she was "characterized as a privileged white female 'Karen' caught on video verbally abusing an African American male with no possible reason other than the color of his skin."

Later that same day, Franklin Templeton published the following statement on Twitter regarding the incident: "We take these matters very seriously, and we do not condone racism of any kind. While we are in the process of investigating the situation, the employee involved has been put on administrative leave." Plaintiff alleges that while Franklin Templeton did contact her that day, it did not seek to interview Mr. Cooper about the incident, did not obtain a recording of Plaintiff's 911 call from the police, and did not take various other potential investigative steps. The following afternoon, Franklin Templeton put out another statement on Twitter (the May 26 Statement): "Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton." As relevant here, Johnson, Franklin Templeton's president and CEO, made two further public statements about the incident. In a June 2, 2020 interview with Bloomberg, in response to questions about Plaintiff's termination, Johnson stated:

I just have to commend [ ] our crisis management team, it was a holiday. Everybody got together. We needed to spend time getting the facts. Sometimes videos can get manipulated and so you have to make sure that you've reviewed all the facts. I think the facts were undisputed in this case, and we were able to make a quick decision.

And in a July 6, 2020 interview with Fortune, Johnson stated: "[Defendants] espouse zero tolerance for racism."

Ms. Cooper sued, claiming that she was fired based on race and sex, and that Franklin Templeton's statements were defamatory. The court concluded that

Plaintiff fails to allege facts giving rise to even a minimal inference of discriminatory motivation with respect to her termination. To the extent that Plaintiff contends that Defendants "implicated the race of their employee with each of [their] communications to the public, by repeatedly connecting [their] stated stance against racism with their termination of the Plaintiff," that argument fails as a matter of law. Defendants' statements made no mention of Plaintiff's race, and even to the extent they could be read as accusing Plaintiff of being a racist, "a statement that someone is a 'racist,' while potentially indicating unfair dislike, does not indicate that the object of the statement is being rejected because of h[er] race. 'Racism' is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race."

Plaintiff's effort to raise an inference of discrimination based on Defendants' treatment of other individuals is equally unavailing…. [But] the three proffered comparators each "occupied roles that were vastly different on their face" and allegedly engaged in misconduct that "is simply too different in kind to be comparable to [Plaintiff's] conduct in this case."

And the court rejected the defamation claim:

To the extent that Defendants' statements are read as accusing Plaintiff of being a racist, the reasonable reader would have understood this to be an expression of opinion based on the widely circulated video of Plaintiff's encounter with Christian Cooper. See, e.g., Silverman v. Daily News, L.P. (App. Div. 2d Dep't 2015) (statements characterizing plaintiff's written matter as "racist writings" are non-actionable opinion); Russell v. Davies (App. Div. 2d Dep't 2012) (statements characterizing plaintiff's essay as "racist and anti-Semitic" are non-actionable opinion); cf. Buckley v. Littell (2d Cir. 1976) ("[T]he use of 'fascist,' 'fellow traveler' and 'radical right' as political labels … cannot be regarded as having been proved to be statements of fact, among other reasons, because of the tremendous imprecision of the meaning and usage of these terms in the realm of political debate ….").

Plaintiff attempts to salvage her claim by arguing that Defendants' statements implied the existence of undisclosed facts upon which their opinion was based. However, we agree with the district court that the May 26 Statement—which did not on its face indicate that Defendants relied on any non-public information, and to the contrary specified that it was "following [Defendants'] internal review of the incident in Central Park yesterday"; was made less than 24 hours after video of the Central Park incident was circulated widely and "became international news as a racial flashpoint"; and "took place in the midst of an ongoing national reckoning about systemic racism"—would be understood by the reasonable reader as being based on the publicly available video of the incident. The same is true of the June 2 and July 6 Statements.

This is indeed the general legal rule (see more on that in this post). A statement that in effect communicates, "Based on these publicly disclosed facts about what Jane Smith did, we infer that she is a racist / sexist / anti-Semite / Communist / etc.," is treated as a statement of opinion, and thus can't be actionable defamation. On the other hand, a statement that in effect communicates, "We have evidence that Jane Smith did X or said Y," when it turns out that she didn't do X or say Y, is treated as a factual assertion, which can indeed be actionable defamation. The court concluded that, on the facts as alleged, a reasonable person would interpret Franklin Templeton's statements as a comment on the publicly available facts, not a statement about supposed facts that Franklin Templeton had uncovered.

Bryan Killian and Grace E. Speights (Morgan, Lewis & Bockius LLP) represent Franklin Templeton.

Comments

[Michael P]

That makes it sound like the company is admitting that it fired her for legally impermissible reasons.

[CJColucci]

What is the "legally impermissible" reason?

[Rossami]

No, the company fired her for morally questionable reason but they were legally permissible.

[Rev. Arthur L. Kirkland]

What was morally questionable?

[John F. Carr]

I don't see any claim that the company called her a "Karen".

[Frank Drackman]

At least she didn't say the "N-word" like Barry Hussein did, in his Best Selling Tome, "Wet Dreams of my Father"
"You ain't my Bitch, Nigger, buy yo own damn Fries!"

https://www.youtube.com/watch?v=92baDJVZcCo

Frank

[CJColucci]

Based on the Cooper decision, I can safely call you a racist. It's an opinion based on publicly-available facts.

[Frank Drackman]

Pre-Judge much? It was Barry Hussein who used the "N-word", not Moi' (and as a 1/2 N-word shouldn't he only say "Nig"??"

Frank "Never uses the N-word in pubic, only in private"

[Martinned]

Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.

I will refrain from commenting on how you might apply this definition to racism in America...

[ReaderY]

I am in general uncomfortable with the idea that extremely inflammatory accusations highly likely to get someone fired and ruin their careers can be lightly dismissed as mere opinion, as it leaves people naked of any protection against defamation. It’s like an armed robbery statute that only protects against the use of flintlock muskets and not against the sort of weapons contemporary robbers actually use when they rob. Legislatures can modify an archaic statute. But if it’s claimed that the constitution says the state can only punish armed robbery if it’s done with a flintlock musket, it leaves the populace unprotected. I find this all too analogous. I am inclined to think accusing someone of racism is potentially actionable fact.

The problem for the plaintiff, however, is that in this case I think there was enough evidence the accusation was true – whether one regards it as factual or a reasonable opinion, it has some basis – that I think the plaintiff couldn’t prevail even if the accusation was considered actionable fact rather than mere opinion. So in this case, since the plaintiff would lose either way, there would be no need to decide the question.

[The Margrave of Azilia]

Concur as to the first paragraph, no opinion as to paragraph 2.

Justice Kagan has not expressed a view on my concurrence.

[Roger S]

The bird-watcher did approach her very aggressively, and threatened her with something like "you are not going to like what I am going to do." And he tried to feed something to her dog. It is plausible that she would have called 911, regardless of his race.

[Rev. Arthur L. Kirkland]

In the reality-based world, however, the woman clarified the situation with her statements.

[The Margrave of Azilia]

Also, under the Bostock opinion, unless they’d have treated a similarly-situated Black employee the same way for identical behavior, wouldn’t this be racial discrimination against the White employee?

[jdgalt1]

Another outrageous ruling.

If labeling someone a racist is enough to get her fired, then courts have no business finding that it's not enough of a statement of (alleged) fact to be actionable as defamation.

[CJColucci]

Only if you want to upend some other parts of defamation law. What, under existing law, did the court get wrong? If your point, instead, is that existing law is wrong, please tell us what you think it ought to be and what, specifically, would have to be changed.

[Roger S]

The employer could have fired her for walking her dog without a leash, or getting into argument with a bird-watcher. Maybe. I don't know what either has to do with her job. But it said that it did an investigation and found racism, and that is completely false.

[CJColucci]

From the opinion:

"To the extent that Defendants' statements are read as accusing Plaintiff of being a racist, the reasonable reader would have understood this to be an expression of opinion based on the widely circulated video of Plaintiff's encounter with Christian Cooper." p. 9

"Plaintiff attempts to savage her claim by arguing that Defendants' statements implied the existence of undisclosed facts upon which their opinion was based," but rejected it because the statements came too close to the event to have led a reasonable reader to think they had been based on non-public information from some investigation beyond looking at the video. p. 10

[Roger S]

I disagree with the judge. If a reasonable man reads that the company said it is doing an investigation, it is reasonable to infer that the company did an investigation.

[CJColucci]

You disagree with four judges, not one.
By the way, what would a quick investigation -- and given the time between her suspension and the statements, there couldn't have been more -- look like? What would it reasonably be expected to add beyond what the video shows?

[Roger S]

The publicity was only based on his side of the story. The investigation could have asked her side. In particular, it could ask her why she said that she was threatened, as many have misinterpreted that remark.

[Lee Moore]

We needed to spend time getting the facts. Sometimes videos can get manipulated and so you have to make sure that you've reviewed all the facts. I think the facts were undisputed in this case, and we were able to make a quick decision.

Thus spake the President and CEO of Franklin Templeton on June 2 2020. And yet :

Plaintiff alleges that while Franklin Templeton did contact her that day, it did not seek to interview Mr. Cooper about the incident, did not obtain a recording of Plaintiff's 911 call from the police, and did not take various other potential investigative steps.

That doesn't sound like "the facts were undisputed in this case" - it sounds like the plaintiff vigorously disputed the alleged facts. Moreover the plaintiff alleges that the defendant did not attempt to discover any facts beyond what was immediately presented in the video. Notwithstanding the President and CEO's claim that "we needed to spend time getting the facts." Obviously his team must have spent many forensic hours and dollars checking that there had been no manipulation of the video, too, since that is apparently standard operating procedure at Franklin Templeton. So it's not obvious to me how we fit into :

"Based on these publicly disclosed facts about what Jane Smith did, we infer that she is a racist / sexist / anti-Semite / Communist / etc.," is treated as a statement of opinion, and thus can't be actionable defamation.

The President and CEO does not suggest that his company rushed to its opinion on the basis of whatever immediately available facts it could string together. He suggests that his company is not the sort of company that rushes to judgement, no siree Bob, it's the sort of company which does and in this case did need to :

...spend time getting the facts. Sometimes videos can get manipulated and so you have to make sure that you've reviewed all the facts.

The characterisation of the plaintiff as a racist is expressly arrived at after a sober consideration of all the facts. Including, the fact that no one disputes them. Despite the plaintiff expressly disputing them.

It seems to me, and this is a most definitely a statement of opinion, your Honor, that the President and CEO of Franklin Templeton is something of a loathsome worm, upon whose honesty and plain dealing it would take a braver man than I to entrust his fortune.

[Rev. Arthur L. Kirkland]

Congratulations to Bryan Killian and Grace E. Speights (Morgan, Lewis & Bockius LLP), who represent Franklin Templeton.

(I have no problem congratulating lawyers who represent people who say they don't condone racism. Other people are, of course, welcome to take a differing position.)

[Frank Drackman]

Coach Sandusky, experienced in forcing his victims to take "Differing Positions"

[The Margrave of Azilia]

“I have no problem congratulating lawyers who represent people who *say* they don’t condone racism.”[emphasis added]

You love people who *say* they’re committed to racial justice. You aren’t interested in whether they actually *are* committed to racial justice, so long as they mouth the right pieties.

[Darth Buckeye]

Legal protections only apply to the appropriate people. Inappropriate people are beneath contempt and deserve no legal protection. So it was in the early 19th century; so it is in the early 21st century.

[David Nieporent]

I listened to the oral argument on this one. It did not go well for the plaintiff, so this decision was very foreseeable.

[Tall Paul]

New York has some strict employment laws. Do they allow summarily firing someone based solely on an opinion or are employees statutorily entitled to some form of "due process"?

[CJColucci]

The default answers are "Yes, they can" and "No, they aren't," with exceptions not relevant here.

[Bored Lawyer]

Right. A private employer who fires you by mistake has no liability.

[Bored Lawyer]

This is one more example of the bastardization of language and the turning of every statement into "opinion" for defamation law.

Racist has a definition: a person who is prejudiced against or antagonistic toward people on the basis of their membership in a particular racial or ethnic group, typically one that is a minority or marginalized. Whether or not one is racist can easily be a statement of fact.

[Bored Lawyer]

In fact, courts are routinely required to make such an assessment in employment discrimination cases. A typical case is the Employer fires Employee, which is certainly an adverse employment action. If the motivation is because he or she was doing a poor job, that's perfectly legal. If it's for one of the forbidden reasons, e.g., race or sex, it's actionable. Often, the very issue to be tried is why the person was fired. So motivation is very much a factual issue that courts and juries are called upon to determine.

[David Nieporent]

They are required to determine whether a particular adverse employment action was taken because of race, not to decide whether a company or supervisor is racist.

[CLTLWY]

I read the opinion. While I can't speak to the defamation part of things, the discrimination dismissal is BS. Imagine the situation were reversed and Templeton fired Cooper (the bird-watcher/potential dog murderer) and issued a statement saying "After carefully reviewing the incident, we have terminated Mr. Cooper as we cannot tolerate our employees treating white women so poorly." They would have made no mention of plaintiff's race and just like here, "a statement that someone is a 'racist,' while potentially indicating unfair dislike, does not indicate that the object of the statement is being rejected because of h[is] race. 'Racism' is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race." There would be no indication our dog-murdering (potentially) bird-watcher was fired for anything other than their dislike of him. Yet I somehow thing the odds of this panel dismissing that case are so unlikely as to not being measurable. Results driven jurisprudence (hey everyone does it) but at least call it what it is.

[bevis the lumberjack]

Lol. We can call someone a racist or a criminal and the government can’t touch us or our speech.

But dare to say something like “closing schools during because of Covid is harming children” and they can smush your speech like a cockroach.

[Roger S]

That gay Black bird-watcher creep was interviewed on NPR Fresh Air today.
https://www.npr.org/2023/06/12/1181314626/central-park-birder-christian-cooper-on-being-a-black-man-in-the-natural-world

[Rev. Arthur L. Kirkland]

Would you be happier if NPR interviewed the authoritarian, law-flouting racist, too?

[Roger S]

Yes, it would be nice if NPR gave a balanced treatment of some subject.