Attorney Steve® Defamation and Media Law Essentials - Does calling someone a racist put you at risk of a defamation lawsuit?

Introduction

This week's legal research comes from the case of a Covington Catholic Nick Sandmann suing CNN for defamation.  Here are excerpts from CNN's brief opposing the claim (which sources say the case has now been settled) and arguing that you can call someone a racist and that is not against the law:

3. Characterizing someone as racist is a nonactionable opinion as a matter of law Courts treat statements characterizing people as “racist” as nonactionable opinion because they cannot be proved true or false.

This principle was reaffirmed just months ago in another defamation case where a minor plaintiff sued the press over alleged implications of racism arising out of his perceived support for President Trump. In McCafferty v. Newsweek Media Group, Ltd., plaintiff and his parents sued Newsweek over a report titled “Trump's MiniMes,” alleging in part that the report implied plaintiff “supported or defended racism.” 2019 WL 1078355, at *4 (E.D. Pa. Mar. 7, 2019), appeal filed, No. 19-1545 (3d Cir. Mar. 12, 2019).

The court dismissed the complaint, holding that the report did not reasonably convey any implication of racism – and that even if it did, “labeling someone a racist without more, though undoubtedly uncomplimentary, is non-actionable opinion.”

Here, Sandmann frames a portion of his defamation claim, Statement 42, around a guest column posted on CNN's website and clearly labeled “commentary” and “opinion,” about “the racist disrespect of Nathan Phillips, a Native American elder, by Nick Sandmann and his MAGA-hat clad classmates of Covington Catholic High School.” Compl. ¶ 207(c).

As the precedent reflects, Sandmann cannot as a matter of law base a defamation claim on this statement as it offers an expression of opinion so subjective as to be unprovable. 

Footnotes:

See also Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (“In daily life ‘racist' is hurled about so indiscriminately that it is no more than a verbal slap in the face,” and thus falls “comfortably within the immunity for name-calling.”); Squitieri v. Piedmont Airlines, Inc., 2018 WL 934829, at *4 (W.D.N.C. Feb. 16, 2018)

(“Statements indicating that Plaintiff is racist are clearly expressions of opinion that cannot be proven as verifiably true or false.” (collecting cases)); Forte v. Jones, 2013 WL 1164929, at *6 (E.D. Cal. Mar. 20, 2013)

(“the allegation that a person is a ‘racist' . . . is not actionable because the term ‘racist' has no factually-verifiable meaning”); Edelman v. Croonquist, 2010 WL 1816180, at *6 (D.N.J. May 4, 2010)

(“characterization of [plaintiffs] as racists is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation”).

The unpublished decision in Armstrong v. Shirvell, 596 F. App'x 433 (6th Cir. 2015), is readily distinguishable. In that case, the court held that the “general tenor” of the plaintiff's unfounded accusation of racism was an actionable statement of fact. Id. at 441-42. In the clearly labeled opinion piece at issue here, the phrase “racist disrespect” was explicitly based on the Native American author's perception of the viral video showing the students' conduct in the presence of Phillips, including “tomahawk chopping.” See Sandmann Video at 4:14-28.

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