The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ninth Circuit Rejects Claim that University Libeled Students and Coaches by Falsely Accusing Them of Blackface Skit
From Day v. California Lutheran Univ., decided yesterday by Ninth Circuit Judges Gabriel Sanchez and Salvador Mendoza, Jr., and District Court Judge Brian Jackson (M.D. La.) (reversing a decision I blogged about last Fall):
In January 2020, a group of students from the California Lutheran University ("CLU") women's softball team performed a lip-sync routine to the theme song from The Fresh Prince of Bel-Air, allegedly wearing "hip-hop clothing," dark makeup to portray facial hair, and curly wigs. After the team posted the performance on social media, CLU's leadership received a complaint that the performance was "blackface."
In the following weeks, CLU's leadership addressed the performance in emails to the CLU students, campus-wide community forums, and a meeting with the softball team and their parents. These communications characterized the performance as a "racist incident," remarked that "blackface" "evoke[s] white supremacy" and "anti‑blackness," and expressed the view that "students were recorded doing performances in which there were exaggerated characterizations of black people and culture" and that "[m]any viewers in [the] campus community took offense and identified" the images as "blackface." Plaintiffs sued CLU and certain officers for defamation, false light, and other state law claims arising from these assertedly false statements.
The court held that defendants' speech wasn't legally actionable:
[T]he common-interest privilege … [protects] "… a communication, without malice, to a person interested therein, by one who is also interested" …. The privilege applies "where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest."
The common-interest privilege applies here because the statements by CLU's leadership were made to the campus community, who share an interest in addressing matters of racism and racial justice as it pertains to student groups and campus activities. Plaintiffs' assertion that defendants "call[ed] attention" to the performance in various news outlets does not defeat the privilege. California courts have recognized that the privilege can apply even when challenged statements are later disseminated to the news media…. Here, in contrast, CLU's statements were directed not to the world at large but "mainly towards those involved" with the same "narrow private interests," the campus community. In any event, … plaintiffs here do not allege that any statement made to a news outlet was itself defamatory….
Plaintiffs have not plausibly alleged actual malice by any defendant sufficient to defeat the common-interest privilege, i.e., that the defendants were "motivated by hatred or ill will" towards the plaintiffs or "lacked reasonable ground for belief in the truth of the publication." The district court concluded in error that some of the statements "were offered in bad faith and with some awareness that they were not truthful" because then-CLU President Chris Kimball allegedly acknowledged in a meeting with the softball team that he believed the students "did not intend to do anything racist," even as he later characterized the performance as "blackface." This acknowledgement does not establish that Kimball lacked reasonable grounds to believe in the truth of his emailed statements. Kimball also stated in that meeting that "there is a distinction between intent and impact" and others perceived the performance to be hurtful. Kimball added that in his view, the performance was "blackface" given how the group was dressed and differing definitions of the term. These statements to the team are consistent with Kimball's campus-wide email defending the use of the term "blackface" to describe performances that involve "exaggerated characterizations of black people and culture." In short, plaintiffs have not plausibly alleged any bad faith or knowledge of the falsity of the challenged statements.
For the same reasons, plaintiffs fail to sufficiently plead their false light claims, which are based on the same allegations as their defamation claims.
