Court Dismisses Defamation Suit Filed by Jussie Smollett's Hoax Attackers

The Osundairo brothers sued Smollett's lawyer for suggesting that they might have put on white makeup for the hoax.

From Osundairo v. Glandian, decided Friday by Judge Mary Rowland (N.D. Ill.):

Plaintiffs Olabinjo and Abimbola Osundairo … attacked actor Jussie Smollett in Chicago on January 29, 2019. Plaintiffs describe the attack as being "fake," "staged," and a "social media hoax" that was orchestrated my Mr. Smollett to create public attention. To that end, the Osundairo brothers claim Smollett directed that the attack occur in the view of a surveillance camera and that the brothers dressed and acted like "white supremacists" and "MAGA Trump supporters."

Plaintiff Abimbola attempted to look like a "southern country white person" during the attack. Immediately before the attack, Plaintiffs shouted racist and homophobic slurs at Smollett, who is black and openly gay. Abimbola struck Smollett during the attack and tried to bruise him, although Plaintiffs contend that the punches were "pulled" so as to not harm Mr. Smollett.

The attack generated significant public interest, and the Osundairo brothers enlisted a public relations agency to handle the volume of media inquiries that they received. Within a month of the attack, Plaintiffs and their representatives began negotiating their participation in a documentary in which the brothers planned to tell their story. Since the attack, the Osundairo brothers starred in both a documentary and in a series of podcasts related to the attack, and the brothers have made several other related media appearances. At the time of briefing, Plaintiffs were working with a publisher on a book related to their involvement.

Smollett was charged with filing a false police report related to the attack, although those charges were dropped. Defendant [Tina] Glandian represented Smollett in those proceedings. Glandian appeared on the Today Show on March 27, 2019, to discuss the charges. The Today Show interviewer, Savannah Guthrie, … stated that Smollett had reported to the police that his attackers were white, and, noting that the Osundairo brothers are black, asked Glandian if Smollett was lying. Glandian replied:

Ms. Guthrie: But the Osundairo brothers, what are the chances that that's the case, that he saw someone with light skin?

Ms. Glandian: Well, you know, I mean, I think there's—obviously, you can disguise that. You could put makeup on. There is, actually, interestingly enough, a video…It took me all of five minutes to Google—you know, I was looking up the brothers, and one of the first videos that showed up, actually, was one of the brothers in white face doing a Joker monologue with white makeup on. And so it's not—it's not implausible.

This exchange (the "Whiteface Statement") is the only allegedly defamatory statement at issue in this litigation.

At the time of the Today Show interview, Glandian. Glandian did not intend to accuse Plaintiffs of committing a crime, and she did not view her statements as an accusation of committing a crime.

The court concluded that the Osundairo brothers were limited purpose public figures, and that Glandian "was not aware of any information that would have led her to believe that her statements regarding the white makeup were false or were likely to be false" (and thus lacked "actual malice"). And the court that "Glandian is entitled to summary judgment for another reason—the Whiteface Statement is substantially true."

A plaintiff cannot recover in a defamation action "where the statements are substantially true." … "To establish the defense of substantial truth, the defendant need only show the truth of the 'gist' or 'sting' of the defamatory material." An "error in detail" is not actionable. Determining whether a statement is substantially true is normally a question for the jury, but it can be decided on summary judgment "where no reasonable jury could find that substantial truth had not been established."

The Osundairo brothers contest the "substantial truth" of the Whiteface Statement by arguing that the "gist" or "sting" of the Whiteface Statement is that it accused the brothers of committing a hate crime…. The Court previously denied Glandian's motion to dismiss Plaintiffs' claims based on [the Whiteface S]tatement because it could plausibly be interpreted to mean "the Osundairos attacked Smollett," and it "implies that the attack was a hate crime." The Court denied a second motion to dismiss because, "taken in context, Glandian was asserting [in the Whiteface Statement] Plaintiffs' involvement in a racially motivated attack."

With the benefit of discovery, it is clear to the Court that regardless of what Glandian meant to assert, Plaintiffs were involved in a racially motivated attack. Plaintiffs admit that … they attacked Smollett, that they dressed and acted like white supremacists during the attack, and that they shouted racist and homophobic slurs. Plaintiff Abimbola testified that he and his brother committed this attack, and did so for the purpose of getting media attention:

[A.] My understanding was that [Smollett] wanted us or wanted me to fake beat him up and call him racial slurs, racial, homophobic, and, yeah, and then say MAGA Country. [Court reporter interruption].

[Q.] You understood that [Smollett] was going to—that this was for his social media; is that right?

[A.] No. What I thought it to be, because we didn't really discuss it, was that was going to be for media. He was going to put it—get it out there somehow to the media.

[Q.] I'll put it another way. Your understanding was that this was going to be publicized?

[A.] Yes, sir.

Plaintiffs are essentially attempting to hold Glandian liable for discussing their own admitted conduct. These accusations cannot withstand summary judgment.

To the extent that the Osundairos believe that the specific suggestion they may have used white makeup was defamatory, this also fails for two reasons. First, Abimbola specifically testified that during the attack, he tried to look like a white person. Regardless of the precise mechanism through which the brothers attempted to appear white, Glandian's statement that the brothers "could [have] put makeup on" captured the gist of the truth and contains, at most, an unactionable error in detail.

Second, Plaintiffs specifically concede in their briefing that whether the brothers wore white makeup is a "secondary detail." This kind of "error in detail" is not actionable.

Brendan J. Healey, Natalie Anne Harris, and Sharon Renae Albrecht (Baron Harris Healey) represent Glandian.