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Young Kansas City Chiefs Fan's (and Family's) Defamation Lawsuit Against Deadspin Based on Blackface Allegations Can Go Forward
To support the Chiefs, the young fan "wore Native American headdress, painted his face black and red, and donned a Chiefs jersey"; Deadspin said this was "black face" and showed "hate" towards "Black people and the Native Americans."
From yesterday's by Delaware trial court Judge Sean Lugg in Armenta v. G/O Media, Inc.:
Deadspin published an image of a child displaying his passionate fandom as a backdrop for its critique of the NFL's diversity efforts and, in its description of the child, crossed the fine line protecting its speech from defamation claims.
On November 26, 2023, the Armenta family, a mother, father, and their minor son, traveled from California to Las Vegas, Nevada to attend an NFL game between the Las Vegas Raiders and the Kansas City Chiefs. To support his favorite team, H.A., the Armentas' minor son, wore Native American headdress, painted his face black and red, and donned a Chiefs jersey. During the game, a television broadcast focused briefly on H.A. Soon afterwards, still images, or "screenshots," of the television broadcast circulated online.
The following day, Deadspin published an article, with an accompanying screenshot, describing the boy as wearing "Black face" in a display of racial animus toward African Americans and "Native headdress" to display his hatred toward the Native American. The article further surmised that Raul and Shannon Armenta, H.A.'s parents, taught H.A. that hatred.
The court allowed the Armentas' defamation claim against Deadspin to go forward:
Generally, statements labeling a person as racist are not actionable. "A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact." In Cousins, the Delaware Supreme Court explained that the defendant's "personal view of what is racist" was not provably false and upheld the trial court's dismissal of the defamation claim:
It cannot be denied America is in the midst of an ongoing national debate about what it means to be racist. To be sure, there is nearly universal agreement that some behaviors are racist: these include the use of racial slurs, the practicing of overt racial discrimination, and the commission of racially motivated violence…. But when a wider net is cast, this consensus quickly vanishes: it is clear to us that Americans disagree about a long and growing list of things that to some are racist and to others are not. It is not our role here to enter into this debate and decide who is right and who is wrong. In fact, we think that the First Amendment is clear that doing so would be the opposite of our role.
Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {"Blackface is used to mock or ridicule Black people; it is considered deeply offensive." Deadspin, in recasting Black face as "culturally insensitive face paint" in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an assertion of an objective, defamatory fact. Two recent decisions applying California law, Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010) and La Liberte v. Reid (2d Cir. 2020), assist in clarifying this distinction.
The Court in Overhill Farms held that "a claim of racially motivated employment termination is a provably false fact." In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse against Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees' motion, reasoning:
[D]efendants did not merely accuse [their employer] of being "racist" in some abstract sense …. [I]n almost every instance, defendants' characterization of [their employer] as "racist" is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer's] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants' written press release, leaflets and flyers accused Overhill of more than harboring racist attitudes; they accused Overhill of engaging in a mass employment termination based upon racist and ageist motivations. Such a contention is clearly a "provable fact;" indeed an employer's motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.
In La Liberte v. Reid, a community activist brought suit after a television host republished two photographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming "You are going to be first deported … dirty Mexican!" at a 14-year-old boy. The second caption compared a photograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television host moved to dismiss the activist's defamation claims, arguing that her statements were "nonactionable statements of opinion." The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:
A reader could interpret the juxtaposition of the Photograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant's] comment that "[h]istory sometimes repeats." That interpretation is bolstered by [defendant's] description of the white woman in the Little Rock photograph as a "person screaming at a child, with [her] face twisted in rage" and [her] comment that it was "inevitable" that the photos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 who verbally assaulted a minority child. Like the defendants in Overhill Farms, [defendant] "did not merely accuse [plaintiff] of being 'racist' in some abstract sense." Rather, her July 1 Post could be understood as an "accusation of concrete, wrongful conduct," which can be proved to be either true or false. That makes it potentially defamatory.
The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court should be guided by Overhill Farms and La Liberte. These statements include:
(1) H.A. was wearing "Black face;"
(2) H.A.'s conduct in wearing "Black face" was motivated by his hatred of Black people;
(3) H.A.'s wearing of a Native headdress resulted from his hatred of Native Americans;
(4) H.A. is part of a "future generation[ ]" of racists who had "recreate[d] racism better than before"; and
(5) Raul and Shannon Armenta "taught" their son, H.A., "racism and hate" in their home.
Deadspin's audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.'s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.'s motivation for appearing as he did.
Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the thrust of these representations is resolved in the opening line of the article, where the author unequivocally asserts, "It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time."
While arguably couched as opinion, the author devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating those who may have taught him—his parents. A reader might not, as Deadspin contends, interpret this assertion as a reflection of the author's opinion. To say one is a racist may be considered opinion, but to plainly state that one's attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article's assertion that H.A. was wearing Black face as fact….
The CBS broadcast showed H.A. for approximately three seconds. In those three seconds, viewers could see that H.A.'s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.'s face painted black and presented it as a factual assertion that there was a "Chiefs fan in Black face" at the game. The complaint asserts facts that, reasonably interpreted, establish Deadspin's Original Article and its Updates as provably false assertions of fact….
Deadspin contends that La Liberte and Overhill Farms stand as outliers from decisions recognizing that accusations of racist behavior are "inherently subjective and therefore non-actionable[.]" Not so. They reflect reasoned assessments of the lines between protected and actionable speech and offer a paradigm for identifying and assessing provably false allegations of racial animus. This Court may grant Deadspin's motion under Rule 12(b)(6) only if "under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted." Applying the analytical framework of La Liberte and Overhill Farms to the facts here, the Armentas maintain a "possibility of recovery." …
Libby Locke, David Sillers, and Jonathan Kaiman of Clare Locke LLP represent plaintiffs.
