Libel law has generally not been simply about assuring people that they aren't
associated with causes with which they don't believe -- it has always required injury
(actual or presumed) to reputation. To my knowledge, it has never been actionable to
falsely allege that a Democrat is a Republican, or vice versa (at least in the absence
of other facts that might make this defamatory). It might falsely associate the
person with an expressive association in the public eye. But it isn't defamatory.
How does this jibe with the rights of expressive non-association? Very simply. The
right of expressive non-association (see, e.g., Abood) is a right to be free from
*government action* that forces expressive association. It has never been understood
as a positive constitutional right to enlist the government in suppressing
nongovernmental actors' speech that falsely associates you with some group. This is,
it seems to me, a pretty basic application of state action doctrine. The only case
that even comes close to departing from this understanding is Harper & Row v. Nation
Enterprises, which has some makeweight language that suggests that freedom from
privately "compelled" speech is itself a First Amendment interest (see
http://www1.law.ucla.edu/~volokh/speechip.pdf , Part III.E.2, pp. 727-732) -- but even
that language doesn't go as far as to say that the government is *mandated* to
suppress certain speech.
Louise, do you have any cases you can cite that suggest that the government is
constitutionally mandated to provide libel recoveries in such cases? I'm unaware of
any that so hold or even suggest.
As to the misidentification as a "fascist," I think there might be a misunderstanding
here. It might well be defamatory to call someone a member of the American Nazi Party
or of the Ku Klux Klan, because that is a (1) factual allegation that (2) would expose
the person to obloquy, contempt, and derision. The reason it's not defamatory to call
someone a fascist is that the term "fascist" (like the term "racist") has become a
relatively general term of opprobrium, meaning roughly "someone to the Right of me
whom I don't like"; it's therefore more a statement of opinion ("his views are
reprehensible") rather than much of a factual allegation. The reason it's not
defamatory to call someone a Democrat is that the claim, while likely a factual
allegation, doesn't expose the person to obloquy, contempt, and derision.
The reason that it's probably not defamatory to call someone a Christian is likewise
probably that it doesn't expose the person to obloquy, contempt, and derision, one
could argue that the claim should be rejected because of a factor like that mentioned
in Polygram Records v. Superior Court, 216 Cal. Rptr. 252, 261-62 (1985); Thomason v.
Times-Journal, Inc., 379 S.E.2d 551 (Ga. Ct. App. 1989): (3) to the extent that the
obloquy, contempt, and derision flows from racial (or, by extension to this case,
religious) prejudice, courts cannot take that into account in defamation cases. I'm
not sure whether this factor 3 is sound, but some courts have indeed recently taken
this view.
Eugene
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Subject: Re: not defamatory to call Jew a believer in Jesus
That's fascinating, about not being able to sue these days for being
mis-identified as a "fascist." If a newspaper story appeared about Jane Doe falsely
describing her as a card-carrying member of the American Nazi Party, and a retraction
could not be obtained, it is disturbing to think no action would lie. Political
correctness seems to have run amok. How do dismissals in such cases jibe with rights
of expressive non-association?
Louise
At 08:02 PM 5/17/04, Stuart BUCK wrote:
Eugene rightly asks whether current defamation law allows for claims
that a person was defamed by being called "black." My tentative answer is No.
Here's a passage from a recent student note on a similar issue:
Journal of Law and Policy
2002
10 J.L. & Pol'y 635
LENGTH: 17375 words
NOTES AND COMMENTS: GRAY CLOUD OBSCURES THE RAINBOW: WHY HOMOSEXUALITY
AS DEFAMATION CONTRADICTS NEW JERSEY PUBLIC POLICY TO COMBAT HOMOPHOBIA AND PROMOTE
EQUAL PROTECTION
Rachel M. Wrightson*
* * *
In certain instances, statements that may have been actionable as
defamatory per se in one generation or context are no longer regarded as defamatory at
all. 11 For example, statements suggesting that an individual is a fascist, 12
Communist, 13 or a racist 14 were once actionable but are now properly dismissed as
non-defamatory. The notion that religious, 15 racial, or ethnic labels are susceptible
of a defamatory [*639] meaning has also been largely rejected. 16 For example, in
the early 1900s false statements that a white person was African-American were
regularly deemed defamatory. 17 Although there is no caselaw expressly overruling
these cases, such suits have largely ceased. 18 Modern opinions assume that such an
allegation is not defamatory at all. 19
n11. Michael Mayer, The Libel Revolution: A New Look at Defamation and
Privacy xvi (1987) (noting that "the categories [of defamation] change as yesterday's
derogatory phrase becomes today's innocuous aside or even compliment").
n12. Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976) (finding a
written statement asserting that a periodical and a newspaper column frequently print
news items and interpretations picked up from openly fascist journals was not
libelous, since issue of what constitutes an "openly fascist" journal is matter of
opinion).
n13. Grant v. Reader's Digest Ass'n, 151 F.2d 733 (2d Cir. 1945)
(calling a lawyer a communist sympathizer was defamatory); Toomey v. Farley, 156
N.Y.S.2d 840, 845 (1956) (finding that to charge one with being a communist or with
having communist affiliations and sympathies is defamatory, justifying an action for
libel); but see Peter F. Carter-Ruck & Richard Walker, Carter-Ruck on Libel and
Slander 37 (3d ed. 1985) (hereinafter Carter-Ruck) (noting that "it is probable now
that such a statement [of communism] would be held to be defamatory... . It is
essential to consider the attitude of the country, as a whole and at the time, to the
particular political party of which it is alleged the plaintiff is a member."); see
also Mark A. Franklin et. al., Mass Media Law 302 (6th ed. 2000) (stating that
""Communist' seems to have gone from being nondefamatory before World War II to being
defamatory during the McCarthy era and the Cold War, and perhaps now to being
nondefamatory again").
n14. See, e.g., Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988)
("Accusations of racism no longer are "obviously and naturally harmful.' The word has
been watered down by overuse, becoming common coin in political discourse."). For a
general examination of categories, see Mayer, supra note 11, at 33-38.
n15. See Carter-Ruck, supra note 13, at 37 (noting that calling
someone Roman Catholic during the reign of Charles II was actionable for defamation,
but was not actionable under the reign of James I, and it would not be actionable
today).
n16. See, e.g., Bradshaw v. Swagerty, 563 P.2d 511, 514 (Kan. Ct. App.
1977) ("The term "nigger' is one of insult, abuse and belittlement harking back to
slavery days. Its use is resented, and rightly so. It nevertheless is not within any
category recognized as slanderous per se."); Arturi v. Tiebie, 179 A.2d 539, 543 (N.J.
Super. Ct. App. Div. 1962) (Sullivan, J.A.D., concurring) (determining that reference
to plaintiff as a "dirty guinea," a slang expression for an Italian immigrant, though
crude and objectionable, was not defamatory).
n17. See, e.g., Stulz v. Ga. Ry. & Elec. Co., 242 F. 794 (6th Cir.
1917); Morris v. State, 160 S.W. 387 (Ark. 1913); Jones v. R.L. Polk & Co., 67 So. 577
(Ala. 1915); May v. Shreveport Traction Co., 53 So. 671 (La. 1910); Mopsikov v. Cook,
95 S.E. 426 (Va. 1918); Spencer v. Looney, 82 S.E. 745 (Va. 1914).
n18. For further discussion of this phenomenon, see Lidksy, supra note
8, at 29-33.
n19. See Thomason v. Times-Journal, Inc., 379 S.E.2d 551 (Ga. Ct. App.
1989) (refusing to concede that plaintiff may have suffered from social prejudice of
others where plaintiff sued over the publication of a false obituary that gave a
funeral home listing that catered to a primarily "black clientel [sic]"); see also
Bradshaw, 563 P.2d at 514 (finding that the term "nigger" was not defamatory per se
and dismissing claims where plaintiff had not pled special damages in accordance with
state law); Lidsky, supra note 8, at 9.
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