Calling Someone "White Supremacist" in Online Debate Is Opinion …

and thus not actionable defamation, unless defendant "implies undisclosed facts by insinuating that the plaintiff" engaged in specific racist acts or made (undisclosed) racist statements.

This is the standard view under American defamation law; it had in the past been applied to allegations of Communism, Socialism, etc., but more recently has often been applied to allegations of racism, sexism, white supremacy, etc. Here's an excerpt from Murphy v. Rosen, released yesterday by the Connecticut Supreme Court, in an opinion by Justice Andrew McDonald:

The use of derogatory remarks on social media and elsewhere has become commonplace in political discourse, with words and phrases taking on different meanings depending on the context in which the expression is made, the intentions of the speaker, and the viewpoint of the audience…. The primary issue on appeal is whether the characterization of the plaintiff as a "white supremacist" is, standing alone, an actionable fact constituting defamation per se.

We conclude that, although calling someone a "white supremacist" or a "racist" is a serious accusation, the meanings of these terms are inherently subjective. As a result, we join numerous other jurisdictions that have concluded that these terms are not objectively verifiable and do not, without more, imply the existence of undisclosed defamatory facts….

The record, viewed in the light most favorable to the plaintiff, reveals the following relevant facts and procedural history. In 2020, Jeff Manville, the first selectman of the town of Southbury, Edward B. St. John, the first selectman of the town of Middlebury, and Joshua Smith, the superintendent of the Southbury and Middlebury school system, posted a joint statement on Southbury's Facebook page. The statement was written in response to the killing of George Floyd. Several community members, who are not parties to this litigation, expressed disappointment with the content of the statement via comments on the post.

Certain community members claimed that the message in the statement was that "All Lives Matter" instead of that "Black Lives Matter." This led to a heated debate among community members in the comments section of the post. Many of the comments were stridently political and emotionally charged. Throughout the ensuing dialogue, the plaintiff and the defendant separately responded to other community members' comments. Eventually, another member of the public, who is not a party to this litigation, posted that the member's "daughters have had people call them the [N-word]" and advocated for community change.

The plaintiff responded to that member, stating: "Provide names, dates, and location of the behavior please." The member replied: "[A]nd you are?" When the member refused to provide details, the plaintiff posted: "Again, names, times, and location of racial slurs. You went into a PUBLIC FORUM and made accusations of racism. I asked for you to name people who are doing it. You deflect and refuse to answer the question. You then call this harassment. You have no understanding of the word. Since you refuse to document your accusations, I am calling your comment BS." In response to the "and you are" question directed to the plaintiff, the defendant commented, "[the plaintiff is] a troll and a [w]hite [s]upremacist."

The plaintiff responded: "So now I am a [w]hite [s]upremacist? How is that? I want specifics. This is exactly what I mean by the behavior of you nasty hate filled Democrats. You make up whatever you have to. PS, I am half Jewish. Wikipedia definition. White supremacy or white supremacism is the racist belief that white people are superior to people of other races and therefore should be dominant over them. I can say for sure that I have many friends who are [B]lack and Latino (including my adopted mother and brother) who are better human beings than you ever will be." The defendant replied to the plaintiff's post, stating: "[T]he burden of proof that you are not a [w]hite [s]upremacist is on you. I've seen many examples, especially during the election season. Feel free to prove otherwise." …

In the present case, whether the trial court properly granted the defendant's special motion to dismiss turns on whether the term "white supremacist" conveys an objective fact or whether it is a nonactionable opinion. An understanding of a recent decision from this court is helpful to that analysis. In NetScout, the plaintiff, a technology company, alleged that the defendant's published vendor ratings and other statements about it in a market research report were false and defamatory statements…. We clarified that, although an ambiguous statement can sometimes be reasonably understood to convey an implied actionable fact[,] other times, vague and ambiguous statements cannot be "understood by a reasonable juror to imply a factual statement; their ambiguity does not invite the listener to infer a latent factual assertion but, rather, suggests an imprecise and irreducibly subjective meaning that cannot be understood to convey a statement of fact. Thus, the statements are expressions of opinion as a matter of law."

We further explained that, when evaluating whether an ambiguous statement implies defamatory facts or, rather, is merely a statement of opinion, the context in which the statement is made is critical…. To analyze the context of a statement, courts generally consider "(1) whether the circumstances in which the statement is made should cause the audience to expect an evaluative or objective meaning; (2) whether the nature and tenor of the actual language used by the declarant suggest a statement of evaluative opinion or objective fact; and (3) whether the statement is subject to objective verification."

Although we have not had occasion to consider whether the characterization of someone as a "white supremacist" is an actionable fact, other jurisdictions have determined that terms like "white supremacist" or "racist," standing alone, are nonactionable opinions because they lack a precise meaning in our society. [Citing many cases. -EV]

{A small number of courts around the country have declined to dismiss defamation claims involving racial epithets, but those cases involved special considerations not present in this case. See, e.g., Zimmerman v. Buttigieg (M.D. Fla. 2021) (opining that it was inappropriate to dismiss defamation action prior to discovery "because it [was] not clear whether all the facts on which the statements [were] based [were] known to the public"); Brimelow v. New York Times Co. (S.D.N.Y. 2020) (characterizing someone as "an 'open white nationalist'" implies self-identification, which is verifiable fact about that person), aff'd (2d Cir. 2021); see also, e.g., Gibson Bros., Inc. v. Oberlin College (Ohio App. 2022) (observing that statements that refer to history or pattern of discrimination and racial profiling "can be verified as true or false by determining whether there is, in fact, a history or account of racial profiling or discriminatory events")….

Illustrating this lack of specificity are the differing definitions of "white supremacist" that the parties endorse. Prior to characterizing the plaintiff as a "white supremacist," the defendant posted her definition of the term as the "fear … that by including … others you will lose your privilege as a white Christian conservative male. That's what [w]hite [s]upremacy is all about. In reality, there can be room for all of us to be equal, but since we live in a patriarchal, misogynist society it's better for you not to have everyone included for fear that equality for all will take away your power." In her brief to this court, the defendant does not rely on a specific definition of "white supremacist," instead asserting that her definition is "malleable …." Similarly, at the hearing before the trial court, the defendant rejected a dictionary definition of "white supremacist" that was proposed by the plaintiff's attorney "[b]ecause white supremacy and white privilege are … ever-changing in their definition[s], especially … [in light of] how our society is changing and … how marginalized people have [been] oppressed. And it happens because of inequality, not just for race reasons."

The plaintiff, on the other hand, relies on a dictionary and asserts that the definition of "white supremacist" is: (1) "One who believes that white people are racially superior to others and should therefore dominate society"; (2) "[a]n advocate of white supremacy, a person who believes that the white race is inherently superior to other races and that white people should have control over people of other races"; or (3) "a person who believes that the white race is or should be supreme." Given the differing, subjective definitions, and the persuasive precedent from other jurisdictions, we conclude that the defendant's statements were nonactionable opinions because characterizing someone as a "white supremacist" in this context cannot be objectively verified.

The context in which the defendant called the plaintiff a "white supremacist" in the present case further demonstrates the point. The epithet was used during a heated episode of back-and-forth name-calling between the parties, in the midst of a skirmish involving sometimes derogatory language used by other community members commenting on the Facebook post. Each side accused the other of being racist. Indeed, prior to being called a "white supremacist," the plaintiff himself attacked the defendant's viewpoint, labeling one of her comments as "racist and bigoted …." {The plaintiff also accused the defendant of supporting child abuse on the basis of the defendant's work with the gender nonconforming equality movement.} The defendant has not filed a counterclaim alleging that the plaintiff's own statement was defamatory, but the resort to allegations of racism by both parties reveals a scenario in which some angry adults resort to an all too familiar vocabulary of personal invective and rude insults that are unaccompanied by facts. Under these circumstances, a reasonable reader would not have expected the defendant to be stating a fact about the plaintiff….

Nevertheless, the plaintiff contends … that he would prevail on the merits of his complaint because the term "white supremacist" implies that the defendant had knowledge of certain undisclosed facts. Specifically, he asserts that the term "white supremacist," in and of itself, always implies undisclosed facts by insinuating that the plaintiff is someone who advocates for racial superiority and racially motivated criminal acts.

Although the plaintiff correctly notes that a statement that implies undisclosed facts may amount to a defamatory statement, we disagree with the notion that the term "white supremacist" necessarily implies knowledge of undisclosed facts. The term's inherent lack of specificity and factual content is largely what makes it an opinion. Simply calling someone a "white supremacist," without more, can convey a broad array of meanings in our society depending on the context in which the words are expressed and, therefore, does not always imply the existence of undisclosed facts.

{Before the trial court, the plaintiff asserted that the defendant's entire second statement—"[T]he burden of proof that you are not a white supremacist is on you. I've seen many examples, especially during the election season. Feel free to prove otherwise."—implied to the reader that the defendant knew additional defamatory facts that would validate her claim that the plaintiff is a white supremacist. The plaintiff did not advance this argument in his appellate brief or during oral argument before this court. Instead, before this court, the plaintiff abandoned this more nuanced argument in favor of the broad contention that the term "white supremacist," by itself, always implies the existence of certain undisclosed facts. Accordingly, we consider any argument related to the rest of the statement abandoned and decline to address it.}

Moreover, we are not persuaded that, in this case, a reasonable fact finder would believe that the defendant had private, firsthand knowledge supporting her characterization of the plaintiff. Indeed, in the present case, the plaintiff points to no evidence by which a reasonable fact finder could conclude that the defendant knew the plaintiff personally, let alone that the defendant had inside knowledge about the plaintiff. The defendant explained in her affidavit and hearing testimony that she accused the plaintiff of being a "white supremacist" because of his comments on the Facebook post. Any member of the Southbury Facebook group was free to view the publicly available comments that the plaintiff posted, in the context of the roughly forty-six pages of comments that included numerous instances of name-calling, and form his or her own opinion as to whether he or she agreed or disagreed with the defendant's characterization of the plaintiff.

Further, … [t]he defendant did not accuse the plaintiff of any specific instances of wrongful conduct that are commonly associated with hate groups. See, e.g., La Liberte v. Reid (2d Cir. 2020) ("accusation[s] of concrete, wrongful conduct are actionable [whereas] general statements charging a person with being racist, unfair, or unjust are not")…. {If the defendant had connected the plaintiff to a specific hate group instead of a general sociopolitical viewpoint, that statement may have been actionable under certain circumstances. See, e.g., Lega Siciliana Social Club, Inc. v. St. Germaine (Conn. App. 2003) (statement connecting plaintiff to Mafia was libel per se because Mafia is generally known to participate in criminal activities); see also, e.g., Forte v. Jones (E.D. Cal. 2013) (concluding that, although "the allegation of membership in the Ku Klux Klan" would be actionable, "the allegation that a person is a 'racist,' on the other hand," would not be actionable "because the term 'racist' has no [factually verifiable] meaning").} …

We again emphasize that this determination is context- and fact-specific. If the term was connected to the plaintiff's professional occupation or to specifically alleged activities, it might have been actionable under Connecticut defamation law. See, e.g., Benvenuto v. Brookman (Conn. 2024) (referencing trial court's determination that statements about plaintiff being racist in context of his professional capacity as police officer were defamatory per se); see also, e.g., Garrard ex rel. R.C.G. v. Charleston County School District (S.C. 2023) (noting that, although general accusations of racism are nonactionable, term "racist" can be actionable when connected to specific instances)….

For an illustration of how this principle had been applied to allegations of Communism back in the day, see, e.g., McAndrew v. Scranton Republican Pub. Co. (Pa. 1950); Clark v. Allen (Pa. 1964):

It is a matter of widespread common knowledge that countless patriotic Americans sincerely and sharply disagree as to what actions and/or words and/or policies aid the Communist cause, or what show Communist tendencies, or what amounts to an "appeasement" of Communism, or what is a "pro-Communist," or exactly what is meant by the term "soft on Communism."

While these words and expressions have a different meaning or meanings for very many Americans and often are undoubtedly intended to be derogatory, they are not libelous…. To hold these words or any of said expressions libelous would realistically and practically put an effective stop to searching and illuminating discussion and debate with likely dire results.

Anthony R. Minchella represents defendant.