Court To Racist Douchebags: It's Not Defamatory For A Newspaper To Call You 'Racist Douchebags'

from the how's-all-that-racism-and-douchebaggery-working-out-for-you dept

When is it defamatory to call people "racist douchebags?" Well, let's start with the "douchebag" part. This is always a statement of opinion and never actionable. Calling someone (in this case, several someones) a "douchebag" is like calling them an "asshole." It's not something that is possible of defaming anyone since it's always, without exception, a statement of opinion.

Calling someone a racist is almost always a statement of opinion. Unlike calling someone a felon or a child molester, claims of racism are based on perception. This makes them closer to a statement of opinion than an actionable fact.

So, calling people "racist douchebags" isn't defamatory. And it certainly isn't defamatory in a situation like this, where the group of people being called "racist douchebags" acted like racist douchebags. In this case, six members of a South Carolina high school football team sued the Charleston City Paper for calling them "racist douchebags." The events leading to the Charleston paper's column were filled with douchebaggery of the racist variety. (h/t Adam Steinbaugh)

Here's the super-dry take on the events from the South Carolina Appeal Court's decision [PDF] -- a take made even drier by the school's press conference statements.

Superintendent McGinley asked the School District's diversity consultant, Kevin Clayton and Associate Superintendent Louis Martin to conduct the investigation. Mr. Clayton and Mr. Martin interviewed the students on the football team and the coaches. The investigation revealed that "players would gather in a circle and smash the watermelon while others were either standing in a group or locking arms and making chanting sounds that were described as 'Ooo ooo ooo,' and several players demonstrated the motion." Superintendent McGinley stated the AMHS team named the watermelons "Bonds Wilson" and drew a face on each watermelon "that could be considered a caricature."

Some football players had created their own post-game ritual of demolishing a watermelon bearing the name of the defeated school while making monkey noises. Most of the schools this predominantly-white school faced during the football season were predominantly black. The "Bonds Wilson" referenced on this particular watermelon was the name of a segregated school that used to be located on the campus where Academic Magnet High School is located. It was named after two African-American educators. The students demolishing the "Bonds Wilson" watermelon were AMHS students.

The paper's op-ed opened with this paragraph, which triggered the football players. (And the lawsuit.)

Today, Charleston was consumed by one story and one story only: the removal of Academic Magnet football coach Bud Walpole amid allegations that his players more or less behaved like racist douchebags. And if there's one lesson to be learned from all of this[,] it's this: big toothy grins, watermelons, and monkey noises don't mix. Any sensible person can see that.

It went on to point out any of the adults overseeing AMHS's students and football team could have stopped this. But no one did until the ritual became public knowledge.

The point is that an entire team of players thought it was OK to draw a grinning face on a watermelon, smash it on the ground each time they beat a largely black team, and make monkey noises—and no one apparently told them to stop.

No one said, "Hey guys, I know not a single one of you has a racist bone in your body, you know, because that's a bad thing, and well, you're an Academic Magnet kid, and you come from a good middle-class white family and you're going to college, and there's no way in hell you'd, you know, draw a racist caricature on a watermelon and make monkey noises and do it fully aware of, like, what all that stuff means, because if you did, knowing all that stuff, then yikes, people might start thinking you're racists. Hell, I'd think you're a racist, and, well, I just don't know if I can deal with the fact that Charleston's best and brightest students are racist douchebags. I mean, it's just a joke right? Right?"

The paper's publisher argued these statements were protected speech. It noted the columnist had formed his opinions based on the students' actions as depicted in statements made by the school during its press conference. Those facts led the columnist to the conclusion the students acted like "racist douchebags" and the football coach at least implicitly condoned racist douchebaggery.

The students hilariously argued this was actual malice, engaged in by the paper "without any investigation, without any evidence, without anything to come to that conclusion." Perhaps the plaintiffs failed to attend the press conference in which the school said football players were demolishing watermelons painted with the names of predominantly-black schools while making monkey noises.

This was not the students' stupidest argument. This one is:

Appellants asserted the players' motives were not racially based but more akin to the movie Castaway where Tom Hanks drew a face on a volleyball and named it "Wilson;" here, the football players drew a face on the watermelon and named it "BondsWilson."

Oh, OK. [Recalls classic scene in "Castway" where Hanks' character beats the hell out of "Wilson" while conjuring Jim Crow imagery.]

The court could not disagree more. It upholds the lower court's decision by pointing out obvious things about defamation law that the plaintiffs' lawyer should have used to dissuade them from suing.

First, the circuit court found that all of the factual statements in the articles were "accurate reproductions of comments made publicly by School District officials, and thus [were] protected by the fair report privilege." Next, the circuit court found the remaining statements in the articles were "merely expressions of the writer's opinions and ideas on a matter of public concern. Under established First Amendment jurisprudence, Jones Street [Publishers] cannot be held liable for such statements."

[...]

The court indicated that it was "settled law that expressions of opinion on matters of public concern are immune from liability for defamation." The court noted that once the factual statements in the articles that summarized the statements made by the School District are removed, none of the remaining statements "assert[] any verifiable, objectively provable fact. They are expressions of the editorial writer's ideas and opinions, using rhetorical hyperbole to emphasize his views."

More simply put:

We do not find that the term "racist douchebag" can "reasonably [be] interpreted as stating actual facts" about Appellants.

Especially when, as the court notes, even the plaintiffs agreed that declaring something or someone to be "racist" is a matter of opinion. A footnote contains statements made by the players and coach in court that attest to the Appeals Court's stated fact:

Appellant Adam Ackerman was asked, "Do you believe that whether or not something is racist is a matter of opinion?" Appellant replied, "It is a matter of opinion."

Appellant R.M. was asked, "[D]o you think that people can have different opinions as to what is racist?" Appellant responded, "Absolutely."

Appellant C.F. was asked, "Do you think whether or not the watermelon ritual, the perception of the watermelon ritual, whether or not that's racist is a matter of opinion?" Appellant responded, "[I]t is a matter of opinion, but it's also—it's an opinion generated on what you've heard."

Appellant Coach Walpole was asked, "Who determines whether or not something is racist?" Appellant responded, "It's up to the—it depends on what it is, up to the individual interpretation, I don't know."

More inadvertent hilarity. In their effort to prove they weren't "racist douchebags" by claiming they didn't believe beating watermelons bearing black school names while hooting like monkeys was racist, the appellants made it clear the labeling of something or someone as "racist" is a matter of opinion, not a statement of fact. Trying to rid themselves of the "racist douchebag" label only made it easier to apply and even less likely to result in a victory.

There's nothing here for the "racist douchebags." They will continue to be "racist douchebags" upon their return to the lower court where their lawsuit will be dismissed. Maybe they'll continue to be "racist douchebags" long after the last check to their representation has cleared. Who knows. But for at least one awful night in South Carolina, they were racist douchebags.

This douchebaggery might have faded into the background months ago, but the plaintiffs desire to be proven right apparently outweighed their desire to put this racist activity behind them. Welcome back to the news cycle, douchebags.

Filed Under: 1st amendment, charleston, defamation, free speech, opinion, racist douchebag, south carolina
Companies: charleston city paper

Federal Court Says Man Arrested For 'Criminally Defaming' Cops Can Continue Suing To Block The Law From Being Enforced

from the thugs-gonna-thug dept

As we've noted multiple times here at Techdirt, criminal defamation laws are unconstitutional, outdated, and almost exclusively used by law enforcement agencies to punish their critics. The ACLU -- along with a victim of New Hampshire's terrible criminal defamation law -- is hoping to have this law struck down as unconstitutional.

Despite the law being clearly unconstitutional and its history of use in the state showing it has mainly been used by cops to go after critics, the state's Attorney General is spending taxpayers' money to defend a law that provides zero benefit to taxpayers.

The problems inherent in an abusable law like this are only made worse in New Hampshire, where law enforcement officers are not only allowed to arrest people, but also initiate prosecution for misdemeanor charges like this one. The state also does not respect the right to counsel in misdemeanor cases, leaving it up to defendants without the means to hire a lawyer to defend themselves against charges brought by cops who are now acting as prosecutors.

The state claims the law is perfectly fine and that Bob Frese -- the man arrested and prosecuted by Exeter police officers for saying Exeter cops were "dirty" and were being covered up for by their "corrupt" chief -- has no grounds to sue the law out of existence. The court disagrees, finding plenty that's disagreeable about the law itself and its use by police officers to punish critics. (via NHPR)

As the court notes in its denial [PDF] of the state's motion to dismiss, Frese has already twice been subjected to arrest and prosecution under this law.

In 2012, the Hudson Police Department interviewed Frese after a local life coach complained about comments Frese posted on the online platform Craigslist. In those posts, Frese repeatedly called the coaching business a scam and claimed the coach had been charged with distributing heroin. The Hudson Police Department ultimately charged Frese with harassment and criminal defamation and obtained an arrest warrant signed by a justice of the peace. Frese, without counsel, pleaded guilty to the charges and was fined $1,488, with $1,116 suspended on the condition he stay in good behavior for two years.

More recently, in 2018, the Exeter Police Department arrested and charged Frese with criminal defamation after he pseudonymously posted comments on the Exeter News-Letter’s Facebook page concerning a retiring Exeter police officer. In his first comment, Frese, under the pseudonym “Bob William,” stated that the retiring officer was “the dirtiest most corrupt cop that I have ever had the displeasure of knowing . . . and the coward Chief Shupe did nothing about it.” The Exeter News-Letter removed this comment at the police department’s request. After the comment was deleted, Frese submitted a second comment under the pseudonym “Bob Exeter” stating: “The coward Chief Shupe did nothing about it and covered up for this dirty cop. This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people . . . .”

The second prosecution of Frese was terminated after the state's Civil Rights Division determined the officers had no probable cause to arrest him due to a lack of "actual malice" in Frese's online comments. It's this second arrest that forms the basis for Frese's lawsuit, which seeks a permanent injunction against enforcement of the law.

The state argued Frese had no standing to sue, because he did not state he intends to… um… keep violating the law, I guess. In other words, the AG says Frese has nothing to fear from the state since he hasn't said he's just going to keep making defamatory statements. The court says Frese's intent isn't the issue here. It's that Frese has already been baselessly arrested and charged for criticizing law enforcement. Since he intends to keep criticizing law enforcement, he has established a credible fear that he'll be arrested and prosecuted again for future criticism.

[T]he criminal defamation statute “arguably . . . proscribe[s]” Frese’s intended future conduct… The criminal defamation statute sweeps broadly, carving out no exceptions for speech concerning law enforcement or other public officials. [...] The Exeter Police Department already commenced a criminal defamation action against Frese in 2018 when he commented that “Officer Shupe did nothing” and covered up “the dirtiest most corrupt cop that [Frese] ever had the displeasure of knowing.” Although the department eventually followed the advice of the State’s Civil Rights Division in terminating the prosecution, Frese was nonetheless arrested and, for a time, prosecuted.

Defamatory statements, by definition, must be false. The AG says all Frese has to do is not lie. Again, this is beside the point. Law enforcement officers have the power to decide what's true or false under the law, which allows them to arrest and prosecute people who officers only believe are lying. Since there's almost no adversarial process involved, cops acting as judges and juries make the call on the truthfulness of people's statements. Not intending to violate the law doesn't matter since cops get to assume intent whenever they find criticism they don't like.

Even if Frese does not plan in the future “to lie or recklessly disregard the veracity of his speech,” see id. at 156, his complaint sufficiently alleges that the State’s prosecutorial arms, which include non-attorney police officers, retain overly broad discretion to determine whether an individual knew his speech to be true or false. Like the SBA List plaintiff, Frese’s insistence that his 2018 comments were true did not prevent Exeter police officials from filing a criminal complaint against him or prevent a Circuit Court judge from finding probable cause to arrest Frese based on the police’s filings. Accordingly, Frese has demonstrated that his intended future conduct is “arguably . . . proscribed by the statute.”

The court also says the law itself may be unconstitutionally vague. First, the definition of the forbidden act is little more than a recitation of the definition of the term "defamation" with "any statement that would hold another up to public hatred, contempt or ridicule" attached to the end of it. There isn't enough detail in the law to provide guidance to citizens on how they can avoid violating it. Worse, since cops are also prosecutors in misdemeanor cases -- acting without guidance from actual prosecutors -- they get to decide what violates the vague law, which obviously leads to the type of thing seen here: the punishment of law enforcement critics by the law enforcement agency being criticized.

Frese alleges that, “[o]n information and belief, individuals throughout New Hampshire routinely violate the criminal defamation statute, but [he] was arrested and prosecuted because he criticized law enforcement officials.” As clarified by his objection, Frese urges this court infer that because the statute “gives law enforcement far too much discretion in deciding whom to prosecute,” the motivation to prosecute criminal defamation is often political.

The court isn't willing yet to decide whether or not the law is unconstitutional. But it will allow Frese's lawsuit to proceed. And the court's closing statement suggests the law isn't going to make the constitutional cut.

Although some criminal defamation prosecutions may collapse on close scrutiny, as was the case with Frese in 2018, this fact does not negate the risk of an excessively discretionary scenario created by the statutory language challenged here. Frese’s encounters with prosecutions under the statute highlight several of these risks. As such, the discretion afforded to police departments to prosecute misdemeanors, taken together with the criminal defamation statute’s sweeping language, may produce more unpredictability and arbitrariness than the Fourteenth Amendment’s Due Process Clause permits.

The state will continue fighting Frese in court, even though there's really no compelling reason the law should remain on the books. It's the sunk cost fallacy in action, but with other people's money. This law doesn't need defending. This law needs to die. Defamation should be handled in civil courts, not by cops who are also judges and juries.

Filed Under: 1st amendment, bob frese, criminal defamation, defamation, exeter police, free speech, law enforcement, new hampshire
Companies: aclu

New Gear By Techdirt: The Fourth Emojiment (And The First One Too!)

from the the-right-of-the-people... dept

Get your Fourth Emojiment gear from
our store on Teespring »

You asked for it, so here it is! When we launched our original line of First Emojiment gear, plenty of people asked when we'd get to some other amendments. Well, the next choice was obvious, so today we're launching Fourth Emojiment t-shirts, hoodies, mugs, stickers, and — for the first time — posters and pillows!

And the First Emojiment is still available, with new products! In addition to the t-shirts, hoodies, mugs and stickers that were previously available, you can now get posters and pillows from the First Emojiment line on Teespring.

Both designs are based on the Twemoji icon set, licensed under CC-BY 4.0.

Over the next little while we're going to be expanding more of our existing designs to include new products, so keep an eye on the Techdirt Gear store on Teespring and let us know what you'd like to see next.

Get your First Emojiment gear from our store on Teespring »

Filed Under: 1st amendment, 4th amendment, gear, techdirt

DOJ, Apparently Unaware Of 1st Amendment, Threaten Anonymous White House Official About To Release A Book

from the that's-not-how-this-works dept

In the past, when unflattering books about the Trump White House have been about to come out, the President has had one of his personal lawyers (such as the one famous for sending questionable threat letters to various media organizations) send dubious threat letters warning that the book not be published. However, since Trump often seems to think of the DOJ as his personal lawyers, perhaps it's no surprise that the DOJ has now sent a similar threat letter in an attempt to (1) block the publication of an allegedly anonymous White House official, and (2) identify who the individual is.

The book, called "A Warning" is apparently written by the person who last year wrote an anonymous NY Times op-ed revealing how staff in the administration worked to "thwart" parts of Trunmp's agenda to protect the country from his "worst inclinations." From all that's been revealed about the book so far, it sounds as though it won't be difficult for the administration to figure out who the author is based on what's included in the book, but they're still going for broke with this dumb strategy:

The Justice Department is going on the offensive against the anonymous author of "A Warning," telling them in a letter obtained by CNN Business that he or she may be violating "one or more nondisclosure agreements" by writing the anti-Trump book.

[.....]

"If the author is, in fact, a current or former 'senior official' in the Trump Administration, publication of the book may violate that official's legal obligations under one or more nondisclosure agreements, including nondisclosure agreements that are routinely required with respect to information obtained in the course of one's official responsibilities or as a condition for access to classified information," assistant attorney general Joseph H. Hunt wrote in the letter.

"Such agreements typically require that any written work potentially containing protected information be submitted for pre-publication review," Hunt added.

First off, this isn't how the 1st Amendment works (nor is it how the DOJ is supposed to act). Hell, even with the Snowden book, the worst the government did was seek to seize his profits. And that was because he actually had signed a lifetime pre-publication review contract, which is common for those in the intelligence community (though, there's an ongoing lawsuit challenging the Constitutionality of such things). Here, they're literally trying to block the publication, which is clearly not allowed under the 1st Amendment -- and they don't seem to have any evidence that this person is in the intelligence community or signed such a contract. In other words, this is bluster on the level that Trump normally employs with his personal lawyers, and not something the DOJ should be engaged in at all.

The DOJ letter does ask the publisher, Hachette, to at least let the DOJ know if the individual had signed a pre-publication review:

"We request that you immediately provide us with your representations that the author did not sign any nondisclosure agreement and that the author did not have access to any classified information in connection with government service," Hunt's letter concluded. "If you cannot make those representations, we ask that you immediately provide either the nondisclosure agreements the author signed or the dates of the author's service and the agencies where the author was employed, so that we may determine the terms of the author's nondisclosure agreements and ensure that they have been followed."

Obviously, asking for the NDA or the dates of service are fairly obvious attempts to figure out who the author is. Again, this is beneath the DOJ.

Indeed, the group PEN America, which works on free expression for writers around the globe, has come out with a dead on, but harsh statement, calling this move "a new low" from this particular administration.

“While we’ve gotten used to seeing President Trump’s private attorneys send letters aimed to intimidate authors and book publishers, for the Justice Department to stoop to such tactics represents a new low. The administration doesn’t know who wrote the book nor what it says. Its claim that a non-disclosure agreement may have been violated is pure speculation.

“Instead, this letter is part of the Trump administration’s ongoing campaign to turn the tables on those who expose and call out its wrongdoing. If it turns out upon publication that the author has violated a legal obligation, the Justice Department can pursue remedies at that point. To try to deter publication or bully the author and publisher are an effort at censorship through the heavy hand of government. Hachette is right to deny this spurious request.”

The DOJ should not be acting as the President's personal censor, and it's shameful that it has agreed to do so.

Filed Under: 1st amendment, anonymous, contracts, doj, donald trump, free speech, nda
Companies: hachette

Man Sues Twitter For $1 Billion Claiming His Account's Suspension Violated His Right To Worship President Trump As A Demigod

from the suing-Twitter-to-own-the-liberal-construing-of-his-complaint dept

Several stupid lawsuits have been brought against social media companies. Some feature actual lawyers (but mostly from the same law firms) helping clients throw money away on allegations that Twitter and Facebook are at least indirectly responsible for terrorist attacks.

Others also use real lawyers, but lawyers willing to misread precedent to declare large social media platforms "public squares" and advance some very questionable arguments about First Amendment violations.

Then there's everyone else: the kind of people who think being temporarily suspended from a platform is a billion dollar Constitutional violation. (h/t Eric Goldman)

In this lawsuit, Adrian Rangel alleges his brief suspension violated the Constitution harder than it's ever been violated before. Rangel's Twitter account is no longer suspended and it's not because he emerged victorious from this lawsuit. It has already been tossed by the federal court.

Rangel's short-lived lawsuit [PDF] asked for $1 billion in damages for his brief suspension, which he alleges violated his First Amendment right to yell "HANG THEM ALL" in a crowded platform. While we can agree Rangel's heated response to "topics from the mundane to the comical" probably should not have resulted in a suspension, we can also agree Twitter's moderation call did none of the following:

Plaintiff contends that by suspending Plaintiff's account religiouserpico Defendants Twitter Foundation and Vijaya Gadde violated Adrian Rangel's constitutional rights to ( (1) freedom of speech, (2) freedom of expression, (3) freedom of religion, (4) freedom of assembly, (5) freedom against unlawful seizure, (6) due process, (7) substantive due process and (8) equal protection of the United States Constitution.

This despite Rangel's claim on his own Twitter feed that he is a "CONSTITUTIONALIST."

Rangel logically points out his "HANG THEM ALL" tweet was not a threat. It targeted no one and was a hyperbolic expression of Rangel's general exasperation with the status quo. (I'm construing his complaint liberally. Rangel doesn't actually reference the tweet his responded to, but judging the rest of the complaint, it probably had something to do with liberal politicians.)

Now, while you might be familiar with misguided assertions that moderation by private platforms violates First Amendment rights (including freedom of assembly), you're probably unaware that account suspensions also violate religious rights.

Before the Defendants suspended Plaintiff's account, Plaintiff used Twitter to proclaim his religious beliefs to the public of being a Born Again King James Bible Only Christian. Plaintiff included the being Born Again King James Bible Only Christian in his Twitter profile. ln addition, Plaintiff followed and was followed by a number of people on Twitter - one group being people of like-minded religious beliefs.

Tangentially, Plaintiff contends that President Donald J Trump was nothing short of miraculously elected by God into the Presidency; most specifically because of Donald Trump's victory in light of the tremendous media, political and social resistance to his election to the Presidency of the United States. Plaintiff used Twitter to support what Plaintiff contends is Donald J Trump's nothing short of miraculous election to the Presidency. As such, Plaintiff's religious beliefs are intertwined with Plaintiff's support of Donald J Trump as President of the United States of America.

Recourse options are limited for those who feel their cult-like admiration of elected leaders has been harmed by moderation efforts. "Limited" as in "zero." There are no options available to someone who has managed to "intertwine" their belief in God with their worship of a president.

Going from that surprising tangent, Rangel alleges the appeals process provided by Twitter doesn't approach the standards of due process provided by the Constitution. Of course they don't. They never will. Only the government has this obligation, much like the government's monopoly on First Amendment rights violations. The same goes for the Equal Protection clause, which is invoked in Rangel's lawsuit to make a perfectly valid point.

Plaintiff further contends that Defendants Twitter Foundation and Vijaya Gadde have illegally embarked upon an illegal circumvention of the United States Constitution in attempting to impose on United States citizens the legal cultures of foreign countries i.e. India, China, Russia, Germany, United Kingdom etc. Many of these foreign countries were once or still are considered third world countries because of their former or present totalitarian subjugation or colonizing regimes.

Unfortunately, valid points aren't the same thing as cognizable claims and the court has no jurisdiction or duty to prevent Twitter from aligning moderation efforts with foreign laws. I agree with Rangel that Twitter should not be humoring authoritarian regimes by complying with removal notices and/or suspending accounts, but a billion dollar lawsuit claiming a private company violated Constitutional rights isn't the place to make this argument.

Since there's no moving forward with the case, there will be no discussion of Section 230 immunity, which would have seen this case dismissed if Twitter (a "California nonprofit," according to the plaintiff) had needed to file a response. Love it or hate it, social media platforms can moderate as they please without violating Constitutional rights. Understanding this simple concept would save a lot of people time and money.

Filed Under: 1st amendment, account suspension, adrian rangel, content moderation, freedom of religion, freedom of speech, lawsuits, pro se, section 230
Companies: twitter