No Libel or Emotional Distress Discovery for Being Called a "Nazi"

From Magistrate Judge Robert Norway's report and recommendation in Frank v. Fine (M.D. Fla. Jan. 5), adopted by Judge Paul Byron on Jan. 19:

Plaintiff [Colby Alexander Frank] {a self-proclaimed "white civil rights advocate" and member of the "Goyim Defense League"} here alleges that Defendant [Randy Fine, a Florida legislator] defamed him by publishing certain statements on a social media platform. Those statements include:

• "I just got jumped by a Nazi with a camera walking into a widely publicized speaking event just now. I'm fine; not sure today will go down as one of his better days."
• "Clearly, he couldn't take it one on one, because as I left, four of his friends were hooting and hollering on the street corner. I got pictures, though being the cowards they are, most were masked."
• "Here's a pic of the Nazi who jumped me."
• "Here's the Nazi's background! Already being prosecuted for one violent felony. Such losers. Mom must not have hugged him enough."
• "The Nazis have released a two second clip from my ambush earlier this week, thinking it makes them look good. I don't think I've ever sounded more eloquent."

… [These statements cannot form the basis for a libel lawsuit] because they are opinions. Statements indicating a political opponent is a Nazi or coward are "odious and repugnant" and far too common in today's political discourse. But they are not actionable defamation "because of the tremendous imprecision of the meaning and usage of such terms in the realm of political debate." In other words, being called a Nazi or coward are not verifiable statements of fact that would support a defamation claim….

Plaintiff alleges Defendant's statements constitute threats [and are therefore actionable as intentional infliction of emotional distress] and that Defendant "has a long history of conspiring with other political agents … against protected free speech activities as well as abusing his position as a legislative representative." Plaintiff states that he "now has genuine fear for his safety" because Defendant has called Plaintiff's protected speech, among other things, "hate litter." …

Florida courts are "reluctant to find claims for intentional infliction of emotional distress based solely on allegations of verbal abuse." Indeed, Florida courts have found no liability when a defendant called a member of the clergy "Satan," and claimed that the clergyman had purchased a luxury vehicle using stolen funds. Other Florida courts have found no liability where the speaker made "vicious verbal attacks" that included the use of humiliating language and racial epithets. Another Florida court found no liability when the deputy director of a port wrote an "ode" about a candidate for port commissioner, including the references "hooker" and "bimbo."

The statements alleged in Amended Complaint are no more outrageous than the statements from these prior cases. That a self-proclaimed "white civil rights advocate" and member of the "Goyim Defense League" was called a Nazi is no more offensive than referring to a clergyman as Satan in front of his flock, subjecting someone to vicious and humiliating racial epithets, or calling a candidate for public office a bimbo or hooker. Like those statements, the ones here are not so outrageous that they support a claim for intentional infliction of emotional distress in Florida.

To be sure, Defendant's social media statements are unflattering, untoward, and base. Some may even say that such statements are beneath the dignity of someone who holds a political office. But insults, indignities, unflattering opinions, and similar rough language do not sustain a claim for intentional infliction of emotional distress in Florida….

The court dismissed the case on its own initiative; plaintiff hadn't served defendant, nor paid the required filing fee, so defendant hadn't yet appeared. For cases applying a similar rule as to allegations of racism, Communism, and the like, see here. The general rule is indeed that simply calling someone a "Nazi" is just seen as an expression of opinion (the person is evil, or morally tantamount to a Nazi), though specific allegations that a person is, say, a member of a Nazi party or committed some crime stemming from his Nazi ideology might indeed be actionable (if false).

Comments

[louctiel]

Representative Randy Fine happens to be my Florida State representative.

He calls everyone with whom he disagrees a "Nazi."

He is currently involved in another lawsuit filed by Brevard County School Board member Jennifer Jenkins for fine making false claims about her, an alleged boyfriend, doxxing Jenkins, and encouraging supporters to confront and harass Jenkins. Fine was also a supported of the infamous case in Brevard County where a parent sued the school, school board, and Jenkins specifically for the claim that the school had tied a mask onto the parent's child who has Down syndrome. The evidence did not support the claim.

https://news.yahoo.com/look-ongoing-feud-between-state-152244037.html

It is good to know that the judge in this case dismissed it in part because statements that are ""odious and repugnant" are not actionable as Fine threatens to sue anyone who says negative things about him - including us.

[ReaderY]

In his essay “Politics and the English Language,” George Orwell noted the associatikn between a tendency to strip words of substantive or factual content and regard them as pure meaningless negative epithets, on the one hand, and totalitarian thinking, on the other. Totalitarians don’t think in terms of facts. They think in terms of how the content of what they say expresses their loyalty to the leadership and their dissapproval of its enemies.

It is remarkable that one of the consequences of Supreme Court caselaw is for American law to encourage totalitarian thinking as Orwell described it. When a word is declared stripped of content and simply a meaningless epithet, this is considered a win for free speech, and hence freedom generally.

Not so, Orwell suggests. Freedom of speech is simply not the same thing as freedom of thought. The freedom to spout and be surrounded by nonsense does not make one more self-empowered as a human being. Rather, freedom of thought requires a lanuage that maintains attachments between words and factual meaning. When these are cut loose too often, when parties and governmental authorities deliberately work to cut them loose, what follows is not freedom.

“Fascist” was one of the words Orwell used as examples in his essay. Orwell said that a society where terms have like this have no specific meaning, where such terms are merely contentless epithets for things the speaker wants to express disapproval of, is not a society where people have any real freedom to make their own political choices.

[jdgalt1]

This ruling (and others like it, eg. Candace Owens) makes zero sense to me.

Calling someone a Nazi is not an expression of opinion, but a specific, testable accusation of the very worst kind. Damn this judge for being such an idiot and coward.

[Ed Grinberg]

I think the decision makes sense. When X calls Y a "Nazi" what he probably means is that Y thinks like Nazi. In that sense, it's like calling someone a communist, a leftist, a totalitarian, a racist, etc., etc. A classic "statement of opinion" (as opposed to a "false statement of fact").

[Rossami]

During WW2, yes that was a testable accusation. Now? The word has been thrown about so freely for decades that it's barely a generalized pejorative.

[David Nieporent]

Calling someone a Nazi is not an expression of opinion, but a specific, testable accusation of the very worst kind. Damn this judge for being such an idiot and coward.

If the target of the speech is a 90+ year old immigrant from Germany, it is possible to construe the epithet 'nazi' as a factual allegation that the person is guilty of certain specific things. But when you call a random middle-aged American a 'nazi', what's the "testable accusation"? Everyone understands that it doesn't mean, "Member of the NSDAP during WW2."

[Rev. Arthur L. Kirkland]

.

Everyone understands that it doesn’t mean, “Member of the NSDAP during WW2.”

You may overestimate the ability of some people to handle nuance, social rules, nonliteral language, societal norms, etc. Especially some people drawn to a faux libertarian website popular among awkward misfits and disaffected .

[minnix]

BTW for those so quick to defend the plaintiff, a link to the Goyim Defense League mentioned in the article https://goyimdefenseleague.com/index.php

[Ed Grinberg]

Nice people...

[comex]

For anyone who doesn’t want to click, the page (which is the group’s homepage) is all about praising and defending Adolf Hitler. The plaintiff is literally a Neo-Nazi. Perhaps the judge should have looked this up before opining that the defendant’s statements were “unflattering, untoward, and base”!

[ravenshrike]

Well, the judge is certainly an idiot. Not only is a Nazi a specific political party, of which there is an American branch and thus a determination of fact and not opinion, but Nazis tend to have various paraphernalia and in the case of the neo-Nazi non-politcal party sub branch tattoos celebrating their Nazihood(ness?). Now, had he called the dude a crypto-Nazi, THAT would have been merely an opinion and not testable. Of course, by and large anyone who calls someone a crypto anything is a moron.