Is it defamatory to call someone “racist”?

In today’s political climate, the term “racist” gets used in seemingly every discussion. I get at least one call a week from a potential client wanting to sue someone for defamation because they were called a racist.

But is it defamatory to call someone “racist”? Would such an action be viable? To answer that question, let’s first set the legal scene, beginning with the elements of defamation.

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) The elements for libel and slander differ slightly, but both require a false and unprivileged statement.

Laying out the elements as such, the caller will quickly respond, “I’m not a racist, so the statement is false.” And therein lies the rub. It may well be false, but is it provably false? What evidence could we offer to show that the caller is not a racist?

The sine qua non of recovery for defamation … is the existence of falsehood. Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18–19.) The critical question is not whether a statement is fact or opinion, but whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.

Wong v. Jing, 189 Cal. App. 4th 1354, 1370, 117 Cal. Rptr. 3d 747, 762 (2010).

A hypothetical tale of racism.

Let’s use an example from a recent caller (changing the facts slightly to protect privacy) to illustrate the conundrum.

The caller was checking out at a grocery store, and got into an argument with the cashier over something minor. The cashier immediately responded by calling the customer a racist, in front of other customers. When the customer asked to talk to the manager, the cashier again repeated the claim of racism to the manager.

This exchange appears to satisfy all the elements of a defamation claim, if it is true that the customer is not a racist. There was (1) a publication (just legalese meaning that the statement was communicated to a third party) that was (2) false, (3) defamatory, (4) unprivileged, and (5) had a natural tendency to injure (the fact that it damaged his reputation is enough).

But how do we prove that second element; that it was false? Who gets to decide when behavior is based in racism? The customer may be 100% confident that he is not racist, and may be able to offer as proof that his wife is a minority as are most of his friends. Heck, the customer might even be a minority. But the cashier may be equally confident that the customer would not have argued over the minor point but for a bias against minorities. What meter can we hold up to the people involved to determine which is correct?

This precise issue was addressed in the case of Overhill Farms, Inc. v. Lopez, and even there the three Justices could not agree on the law.

In Overhill Farms, the IRS informed the company that 231 of its employees were using bogus social security numbers, and that the company would face criminal prosecution if it permitted the situation to continue. Overhill investigated and determined that such was the case, and it terminated all those employees.

Some of the terminated employees participated in protests outside Overhill’s two plants and outside of one of Overhill’s customers’ place of business. Defendants’ protest efforts included issuing a press release, carrying signs, and handing out leaflets, flyers, and handbills which stated, among other things, that Overhill had used a “supposed discrepancy” in Social Security numbers as a pretext for employment terminations which were both racist and a targeted attack on older and more senior employees.

On its face, the claims were ridiculous. Overhill had hired all these same employees, and obviously had no issue with their race, nationality, age or gender, and only fired them because its hand was forced. As to the “supposed discrepancy,” the bulk of the employees had admitted that they were using false social security numbers.

Overhill sued defendants for defamation, intentional interference with prospective economic advantage, intentional interference with contractual relations, extortion, and unfair competition; all of Overhill’s claims were based on alleged defamatory statements made by defendants in the course of the protests. Although Overhill sought damages, it alleged that defendants are “virtually judgment proof,” and made clear that injunctive relief to prohibit future misconduct was its primary goal.

Defendants filed an anti-SLAPP motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. The trial court granted the anti-SLAPP motion as to the unfair competition claim, but otherwise denied the motion. The court concluded that although Overhill’s claims arose out of protected conduct, Overhill had carried its burden of proving a probability of prevailing on the merits of all its claims except its unfair competition claim. Defendants appealed, claiming that none of their alleged statements were actionable, because none declared or implied a provably false assertion of fact under the totality of the circumstances.

What is necessary to show a provably false assertion of fact?

In determining whether a statement declares or implies a provably false assertion of fact, courts apply the totality of the circumstances test.

Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense…. Next, the context in which the statement was made must be considered.’ (see Nygard, Inc. v. Uusi–Kerttula, 159 Cal.App.4th at p. 1049 [Court considers the totality of the circumstances “[t]o ascertain whether the statements in question are provably false factual assertions”].) Whether a challenged statement ‘declares or implies a provable false assertion of fact is a question of law for the court to decide, unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.’ (Franklin, supra, 116 Cal.App.4th at p. 385.)

The term ‘racist’ is of course an exceptionally negative, insulting, and highly charged word—it is hard to imagine being called much worse. It is, however, also a word that lacks precise meaning, so its application to a particular situation or individual is problematic; indeed, defendants contend no court has ever found the use of the term ‘racist’ to be actionable defamation in a context similar to this one.

In Stevens v. Tillman, for example, the Seventh Circuit Court held that use of the term racist was not actionable under Illinois defamation law, observing (over 20 years ago) that the term lacked a precise meaning, can imply many different kinds of fact, and is no more than meaningless name calling. The appellate court further observed, ‘[t]he word has been watered down by overuse, becoming common coin in political discourse.’ We agree that general statements charging a person with being racist, unfair, or unjust – without more – such as contained in the signs carried by protestors, constitute mere name calling and do not contain a provably false assertion of fact. Similarly, references to general discriminatory treatment, such as that contained in the handbill and flyer here, without more, do not constitute provably false assertions of fact. (See, e.g., Beverly Hills Foodland v. United Food & Commercial Workers Union, Local 655 (8th Cir.1994) 39 F.3d 191, 196 [‘To use loose language or undefined slogans that are part of the conventional give and take in our economic political controversies – like ‘unfair’ and ‘fascist’ – is not to falsify facts.’)

Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1262.

So no defamation in our hypothetical? Well, in the Overhill case, two of the three Justices found what they considered to be a distinction from the general rule that calling someone a racist is just meaningless name calling.

In Overhill, the defendants did not merely accuse Overhill of being “racist” in some abstract sense. The press release contains language which expressly accused it of engaging in racist firings and decried the disparate impact the firings have had on “immigrant women.” Similarly, after discussing Overhill’s termination of one-fourth of Overhill’s work force, the leaflets explicitly asserted that the discrepancy in social security numbers was merely a “pretext” to eliminate certain workers, and referred to Overhill’s conduct as “racist and discriminatory abuse against Latina women immigrants.” Moreover, in almost every instance, defendants’ characterization of Overhill as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of Overhill’s black corporate heart – it represents an accusation of concrete, wrongful conduct.

The gist of the press statement, leaflets and flyers was that while Overhill was claiming the employment terminations were based strictly on the disparities in social security numbers, that claim was false, as the Social Security Administration had decreed that such discrepancies were not grounds for termination. Thus, defendants were clearly portraying the “supposed” discrepancies as merely convenient cover for Overhill’s true, racist, intent. Indeed, the leaflet explicitly characterizes the social security number discrepancies as a mere “pretext” for the firings. And a claim of racially motivated employment termination is a provably false fact. Indeed, that very fact is subject to proof in wrongful termination claims on a regular basis. If we were to conclude that an employer’s racist motivation for terminating an employee’s job were not “provable,” it would come as a great shock to the Fair Employment and Housing Commission.

Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1263.

For all these reasons, the Court of Appeal reversed the holding of the trial court, and found that the anti-SLAPP motion should have been denied entirely.

But one of the three justices was not persuaded, and dissented to the opinion. Justice Fybel stated:

The First Amendment to the United States Constitution guarantees a cherished freedom—the right to speak openly and freely. (U.S. Const., 1st Amend. [“Congress shall make no law … abridging the freedom of speech…”].) Within the past few years, the United States Supreme Court has broadly protected speech in a public forum in the analysis of permissible speech by candidates for judicial office (Republican Party of Minnesota v. White (2002) 536 U.S. 765), and of corporations in elections (Citizens United v. Federal Election Commission (2010) 558 U.S. 310). The anti-SLAPP (strategic lawsuit against public participation) statute provides that it should be construed broadly to protect against “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).)

Defendants’ anti-SLAPP motion should have been granted because none of defendants’ statements contains actionable defamation. The statements describe Overhill Farms, Inc.’s (Overhill), firing of a large number of Hispanic and female employees as “racist” and “discriminatory” in the context of vigorous public protests. Overhill failed to produce evidence showing defendants declared or implied a provably false assertion of fact within the meaning of the First Amendment and defamation law jurisprudence (see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19); thus, Overhill’s defamation claim fails as a matter of law. The majority opinion is an unprecedented and unwarranted extension of defamation law and is contrary to the First Amendment.

By this lawsuit, Overhill seeks to curb and chill employee protests. As acknowledged by the majority opinion, Overhill has “made clear that injunctive relief to prohibit future misconduct was its primary goal.” (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [“If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”].) To illustrate this point, would it be actionable if the Los Angeles Times, the Orange County Register, Fox News, or MSNBC complained that actions by anyone were “racist” or “discriminatory”? Of course not. Employees complaining about their employer enjoy the same protection.

Considering defendants’ speech under the totality of the circumstances in this case, their speech too is constitutionally protected from a civil suit. In my view, Overhill is perfectly capable of ably presenting its side of the story in the public forum and has done so. Justice Brandeis’s statement in Whitney v. California is apt: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Defendants’ assertions might not be persuasive, but they are not actionable.

Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1272–73.

Interestingly, this precise fact pattern also arose in a case involving “Transformers” actor Shia LaBeouf. LaBeouf, who admits to having a drinking problem, was refused service by bartender David Bernstein at Jerry’s Famous Deli. Bernstein felt that LaBeouf was intoxicated, and under California law it is a violation to serve alcohol to someone who is intoxicated.

LaBeouf was having none of that, and as is common practice in today’s world, regardless of the absurdity of the claim, immediately screamed that Bernstein was a “fucking racist bitch.” Very classy. LaBeouf was removed from the premises.

Bernstein sued for defamation and assault (LaBeouf had allegedly threatened Bernstein with a bottle at some point).

Here’s where it gets fun (with a perfect anti-SLAPP tie-in).

I hate to see something like this turn into a lawsuit, and if I were Bernstein I would have simply written it off as a fun story to tell the grandkids. “See that wimpy guy fighting the Transformers, kids? I threw him out of my bar after he called paw-paw a fucking racist bitch.” It would soon become a tradition at family gatherings. “Paw-paw, please tell us that story about how Shia LaBeouf called you a fucking racist bitch, pleeeese!”

But I can also understand the desire to say enough is enough. LaBeouf (allegedly) has a string of inappropriate behaviors, and at some point someone needs to take him to the woodshed. Being called a “FRB” might be the time for a line in the sand.

So Bernstein sued, and LaBeouf’s attorneys come up with the brilliant idea to try and dispose of the case with an anti-SLAPP motion. While it is true that a situation involving a celebrity can turn the facts into a matter of public interest, and bring it under the anti-SLAPP statute, it is important to keep in mind who is making the statement. So, if Bernstein had been the one to call LaBeouf an FRB, and LaBeouf had sued for defamation, the public interest analysis might apply. The public might be interested in whether LaBeouf is an FRB.

But LaBeouf does not enjoy protection for every word coming out of his mouth, just because he is a celebrity. Quite properly, the Court found that LaBeouf’s statements did not even satisfy the first prong of the anti-SLAPP analysis. Nonethess, LaBeouf’s attorneys have appealed.

So what is the answer to our opening question? Is it defamatory to state someone is racist?

The answer 99% of the time will be no. In most every conceivable circumstance, the claim that someone is a racist will be considered nonactionable opinion.

The fact that Bernstein’s action against LaBeouf survived the anti-SLAPP motion does not mean that it has any merit; only that it did not satisfy the statute. At trial, if the law is followed, the defamation action should be decided in favor of LaBeouf. Stating that Bernstein is an FRB is simply not a verifiably false statement. (He could, however, still prevail on the assualt claim which has nothing to do with the speech.)

“But what about Overhill Farms?,” you ask. Thank you for engaging.

At best, Overhill Farms provides a very narrow clarification. If the statement is offered in the context of provably false statements, it might be actionable. In Overhill Farms, the claim was that the problem with the Social Security numbers was a “pretext” for the discriminatory terminations, and that added assertion was provably false. Perhaps if LaBeouf had shouted, “you know I’m not drunk and the only reason you are refusing to serve me is because you are an FRB,” then Bernstein could establish that the “not drunk” is a verifiably false statement.

Shia LaBeouf walks the red carpet.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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