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Free Speech

False Accusation of Having Used a Slur Lead to Damages Award and Possible Punitives


From Cody v. Dirir, decided last Friday by Connecticut Superior Court Judge Donna Wilkerson Brillant, the court's findings of fact:

On October 12, 2022 [likely should say 2019 -EV], the plaintiff and the defendant were students at the University of Connecticut in Storrs, Connecticut (University). They did not know each other until October 12, 2022 [likely should say 2019 -EV], when the defendant attended a party at a home of a fraternity that the plaintiff was a member of and where he resided. During the party, the defendant believed that she was called a nigger (N-word) by another member of the fraternity, Frank V., a black male. When the defendant told the plaintiff, a white male, that Frank called her the N-word, the plaintiff tried to convince her that Frank would never say that and if he did, he did not intend it in a negative way as he used the N-word with an "a" at the end of the word and not with an "er" at the end of the word. Frank used the N-word in the defendant's presence, and she believed the word was directed to her.

The defendant was upset by this exchange at the party, and after the defendant left the party, she reported this encounter to her cousin, … Ellie …. With the defendant's assistance of providing a picture of the plaintiff and Frank, Ellie posted on her Twitter page the picture of Frank and the plaintiff with the following statement: "These two called my little cousin a nigga and continued to belittle her infront of their white friends at a UConn frat party. If anyone knows their names, please let me know. And tell them keep that energy." The statement with the picture (also referred to as "post" or "tweet") was seen initially by approximately 700 to 1000 people who are the cousin's Twitter followers. Those followers then forwarded the post/tweet to their Twitter followers, resulting in approximately 5000 or more people viewing the post.

The next day, a meeting was held with the plaintiff and the defendant and their respective friends at the defendant's dormitory hall, at which the defendant admitted to the students in attendance that the plaintiff did not call her the N-word. The defendant invited approximately ten people to the meeting, of whom some were vulgar and did not allow the plaintiff to speak, telling him to "shut up, white boy." The plaintiff, Frank, and two other members of the plaintiff's fraternity, Nihar and Akrash, attended the meeting. Frank apologized to the defendant at the meeting as he explained that his statement was not directed at her but at his fraternity brother.

Also at the meeting, the plaintiff stated that he did not use the N-word and his fraternity brothers stated that the plaintiff was receiving threats of physical violence on Twitter. The defendant was made aware of the threats of violence against the plaintiff. The defendant stated at the meeting that the plaintiff did not use the N-word and that she would remove the post if the plaintiff apologized, as she still wanted an apology from him and from the fraternity and after receiving the apologies, she would then report the incident to the University's community standards office, which governs the code of conduct for students. Only after those events occurred would she tell her cousin to remove the tweet.

The plaintiff was not willing to agree to the defendant's request for an apology in order to have the tweet removed and, therefore, due to the threats of physical violence against him, he reported the threats to the state police. The state police spoke to the defendant about the threatening posts and told the defendant to remove the tweet from Twitter. At that time, the defendant spoke to Ellie about removing the tweet by informing Ellie that the state police visited her and told her to remove the tweet. Ellie then removed the tweet from Twitter.

Ellie realized later that the plaintiff had not used the N-word and she was not aware of that when she posted the tweet. Ellie believes her tweet could have been worded "better" and admitted in a signed affidavit that she was "misinformed" about the situation because the plaintiff did not say the N-word and "[did not] do anything wrong." Ellie did not know who used the N-word at the time she posted the tweet, but she grouped the plaintiff and Frank together in the tweet by using the words "these two called my little cousin a [N-word] …." She believed one used the N-word and the other student belittled the defendant.

The plaintiff eventually provided the defendant with a written request to retract the statement that was posted on Twitter. The defendant did not issue a written retraction of the statement, although she knew the plaintiff asked for one and that he did not call her the N-word and knew that he was being threatened by people who thought he called her the N-word. Instead of providing the plaintiff with a written retraction, she reported the plaintiff to the University's community standards office and obtained a letter of protection providing that the plaintiff must stay away from her. The defendant also never told her cousin to post a statement to Twitter retracting the earlier statement/tweet and Ellie never posted a retraction of the tweet.

The defendant saw the tweet and knew the tweet was not an accurate version of what transpired with her at the party and did nothing to correct the statement other than to verbally tell a small number of people (ten to twelve) at the dormitory meeting that the plaintiff did not call her the N-word. Thousands of people saw the tweet, which caused the plaintiff to receive threats of physical violence to his person, however, the defendant did not provide a written retraction in the same manner as the tweet.

As a result of Ellie's tweet and the related threats of physical violence, the plaintiff was not able to focus on his schoolwork. His grades declined and he still has not completed his bachelor studies due to the stress he felt from the threats of violence.

He was fearful of his life on the University campus. Other students thought that he was a racist, which resulted in tweets about hurting the plaintiff. The plaintiff suffered from lack of motivation and lack of focus as well as temporomandibular joint dysfunction from clenching his jaw while sleeping due, to stress. He has been nervous, unfocused, unable to sleep, and he sought therapy. As a result of all of this he was prescribed medication. The medication, however, causes erectile dysfunction, which is a concern for him as it affects his social life, particularly his desire to date someone.

The plaintiff had begun mental health therapy prior to the incident with the defendant to help him deal with the stress from the University and the military as the plaintiff is also in the Army National Guard. He was obligated to explain to his commanding officer about the tweet and what had transpired at the University regarding the fraternity party. The Army National Guard informed him to keep it apprised but no consequences occurred.

The plaintiff believes that the people he lives near and encounters around campus believe that he is racist because after the incident, in addition to the threatening Twitter posts, his fraternity hosted another party at which the plaintiff's bathroom was vandalized and "racist" was written in shaving cream across the wall/mirror. He is extremely uncomfortable meeting new people for fear that they know about what happened and will view him in a negative light. His relationships with his friends suffered. At the same time of this incident, there were racial tensions on the University campus due to another racially charged incident. He knew that other students involved with that racially charged event on campus were arrested and he was concerned that could happen to him. The media, Newsweek, had written a story about the incident, which further casted the plaintiff in a negative way. The plaintiff's reputation to his character suffered, and he was not able to socialize the way he would normally due to feelings that people thought he was a racist.

The court concluded that, under Connecticut law, this wouldn't be actionable libel, because it didn't qualify as "defamation per se," so that plaintiff would have to prove economic loss, which plaintiff couldn't. (Many other states don't impose such requirements.) An excerpt:

"Damages for defamatory statements divide into the categories of general and special damages." General damages include injury to one's reputation and feelings, and mental suffering. "Anything else [besides general damages] is special damage." In defamation cases, "[any] special damage … must be of a material and, generally, of a pecuniary nature. It must result from the conduct of a person other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander…. For example, if a third person, because he believes the slander or because of an unwillingness to employ one whose reputation has been impaired by it, withdraws his previous offer to hire that person, the latter's loss of reasonable expectation of gainful employment would amount to special damage."

"[T]he law presumes general damages where the defamatory statements are actionable per se." … "Statements deemed defamatory per se are ones in which the defamatory meaning of the speech is apparent on the face of the statement…. Our state has generally recognized two classes of defamation per se: (1) statements that accuse a party of a crime involving moral turpitude or to which an infamous penalty is attached, and (2) statements that accuse a party of improper conduct or lack of skill or integrity in his or her profession or business and the statement is calculated to cause injury to that party in such profession or business…. Once the plaintiff has established that the words are false and actionable per se, barring any statutory provision to the contrary, [he] is entitled under Connecticut law to recover general damages without proof of special damages." "On the other hand, if the words are defamatory, but not actionable per se, the plaintiff may recover general damages for harm to [his] reputation only upon proof of special damages for actual pecuniary loss suffered." …

[T]he defendant told individuals about Frank saying the N-word and about the plaintiff's conversation with the defendant regarding that incident. Ellie's tweet stated that Frank and the plaintiff called the plaintiff the N-word and belittled the plaintiff. Even if the defendant is responsible for the tweet, none of these statements accused the plaintiff of any crime involving moral turpitude or punishable by imprisonment or of any deficiency in his profession. Thus, the statements do not constitute defamation per se, and no general damages are presumed on that ground….

[T]he plaintiff's general reputation or character has suffered, and he has received threats from third parties, but he has not submitted proof of any material or pecuniary damages. As such, the court cannot award special damages, as they have not been sufficiently proven, or general damages, as any defamation here is defamation per quod and not defamation per se. Accordingly, the plaintiff has not met his burden by a fair preponderance of the evidence on his defamation claim for libel.

But the court did award plaintiff $10,000 in damages on an intentional infliction of emotional distress theory, and allowed for the possibility of punitive damages (the amount to be determined at a later hearing); an excerpt:

"In order for the plaintiff to prevail in a case for liability under … [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe…. Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society …. Liability has been found 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! … Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." …

In the present case, as to the first element, the defendant should have known that emotional distress was the likely result of her conduct because she knew that the statement that was posted by Ellie with her cooperation stated that the plaintiff called her the N-word and she knew that he did not say that. She also knew that he was receiving threatening posts as a result of her conduct, as she was informed of such during the meeting at her dormitory.

Regarding the second element, her conduct was extreme and outrageous because she knew that the plaintiff did not call her the N-word and that he was receiving threatening messages, but she refused to write a retraction. The defendant testified that before the state police visited her, she had asked Ellie to remove the statement from Twitter because she did not want anyone to identify her as Ellie's cousin as "[she] did not want to be known as the victim." Sadly, the defendant's anonymity was at the high expense of the plaintiff's mental stability. Ellie only took the post down when the defendant told Ellie that the state police told her to take it down because of the plaintiff's complaint that he was receiving threats of violence. The defendant knew that the plaintiff was receiving much hostility on campus because of what she and Ellie posted. The defendant should have had the post removed promptly, and if not, she should have at least written and posted to Twitter the retraction.

As to the third element, the defendant's conduct was clearly the cause of the plaintiff's distress because if it had not been for the defendant's actions of having the plaintiff's picture posted with the caption that he called the defendant the N-word, he would not have suffered the harm or threats he received….

[As to the fourth element], the plaintiff has suffered more than mere embarrassment or temporary trouble sleeping and eating. The plaintiff has sought therapy for the distress he suffered because of the tweet and the related threats of physical violence, and he was prescribed medication. The plaintiff has been unable to focus and still has not completed his bachelor studies due to the stress he feels. He was fearful of his life on the University campus and his social life has suffered. The plaintiff also suffered from temporomandibular joint disfunction from clenching his jaw due to the stress he endured…. [T]he plaintiff was affected long term, sought treatment, suffered physical symptoms, and struggled professionally. Therefore, the plaintiff's distress constitutes severe emotional distress, and he has met his burden of proof as to all the elements of intentional infliction of emotional distress.

Plaintiff is represented by George E. Bourguignon, Jr.