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Thursday, August 16, 2007
Kia Vaughn's Slander Lawsuit against Don Imus

Earlier today I was interviewed by Nina Mandell of Sports Illustrated on Rutgers women's basketball player Kia Vaughn's slander lawsuit against Don Imus. I hope you have a chance to read the transcript of my SI interview. In summary, I believe that Vaughn will have a difficult time succeeding in her claim, but that the claim itself is damaging to Imus, and that makes a settlement likely.

As a related writing from back in April, Jon Hanson and I wrote about Imus in a Situationist piece that generated quite a few reactions, "Hoyas, Hos, and Gangstas." That piece relates to our book project on Situationist Sports and in it, we argue that the underlying prejudice found in Don Imus' comments about the Rutgers' womens basketball team can be found in other sports contexts, including in how we talk about male African-American basketball players, such as Georgetown University basketball players, and in how we regulate the behavior of basketball players, such as the NBA's recent attempts to make its players seem more "likeable" to mainstream America. However, unlike with the universal outrage we all expressed at Imus for his comments, these instances occurr in ways that we take for granted, find unoffensive, or even support. Jon and I try to examine why that might be the case.


Congratulations on hitting the big-time media :)

I agree with you that the slander claim is weak, although I am not so sure that Imus/CBS will settle, given just how weak the case is. I think CBS might be able to make it go away fairly quickly.

Two problems with the claim, in addition to some of the ones you mentioned in the interview:

1) Can these statements reasonably be taken as making a factual assertion about Vaughn or any of the other Rutgers players? Can they seriously be understood as an assertion by Imus that Vaughn is a "ho," literally meaning either a) a woman who exchanges money for sex or, b) to broaden the definition, a promiscuous woman? He was calling them (an admittedly derogatory) name; he was not saying anything factual about them. I think the claim fails right there.

2) Did Imus say anything about Vaughn specifically or was he talking about the players generally and as a group? One element of defamation is that the false statement (assuming this was a verifiable statement of fact) be "of and concerning" the plaintiff. In general, a member of a group of people (even a small group of people) cannot recover for false statements made about the group of which she is a part. So if you say "The County Commission is corrupt," no individual member can sue for that.

Did Vaughn bring a claim for intentional infliction of emotional distress? If not, I wonder why not. It seems to me that would be a much stronger claim, because it allows recovery simply for extreme offensive acts.

Blogger Howard Wasserman -- 8/16/2007 9:45 PM  


Thanks for your kind words, I appreciate them.

I also appreciate your thoughts, as you raise some excellent additional reasons as to why Imus will likely win.

Also, from what I understand, Vaughn has not brought a claim for intentional infliction of emotional distress, although I agree that it would seem like a better vehicle for recovery.

Blogger Michael McCann -- 8/17/2007 12:35 AM  

Will the Rutgers women be deemed public figures?

Anyway, Imus will need to get this thrown out before it gets to a jury, otherwise, I don't like his chances, regardless of the law.

Anonymous john -- 8/17/2007 1:11 PM  

Any judge who would allow this to go to trial should be immediately disbarred. There's so many issues with this that it makes my head spin. My legal background is limited, but is fortunately rooted in defamation, so it just aggravates me that this case will inevitably be settled.

There was no personal identification, so a reasonable person who heard the comment would not immediately think "Vaughn is a ho." I'm not familiar with any defamation case in which a blanket statement about a group makes this test.

I think the most intriguing question regards the public figure test, as I'm again not familiar with any cases in which the individual was made into a public figure on the basis of the comment itself. I don't think that matters, though, because of the lack of a claim element to begin with, right?

The definitional basis of "ho" was covered by Mr. Wasserman above, and I think it would be very difficult to prove that Imus was making a statement as fact that a given person was by any broad definition of the word "a ho."

Anonymous tim -- 8/17/2007 1:23 PM  

Whether Vaughn is a public figure or not is a really close question. She is one of the stars of a Cinderella team going to the Final Four. And the initial conversation on the broadcast was about the basketball team and its trip to the Final Four. So that seems to suggest she is a public figure (compare Joachim Noah or the quarterback for Ohio State). On the other hand, this is a sport that is not extremely popular nationally, at least beyond Tennessee and Connecticut. Diana Taurasi would have been a public figure while at U Conn; does Rutgers (at least this year) have the same high profile? Not sure.

Blogger Howard Wasserman -- 8/17/2007 9:45 PM  

3 points, explained in detail below: 1) despite their offensiveness, the statements are mere opinion which do not create liability for defamation; 2) Imus has been sued for insulting a woman on the air before, but the case was dismissed & the dismissal was upheld on appeal; and 3) members of a group can sue for defamation even though they weren't named individually, if the group is small enough.

In all likelihood, the case won't survive a motion to dismiss; certainly not one for summary judgment.

Racist, gender-based, and profanity-laden insults may be offensive and upsetting, but they're not the basis for viable lawsuits. While they certainly violate social norms & may subject the speaker to other repercussions, there's a vast difference between that & legal liability.

See, e.g., Dowlen v. Mathews, 2003 WL 1129558 (Tenn. App. Ct. Mar. 14, 2003) (upholding trial court's dismissal of defamation claim based on tirade of inexcusable, offensive, racist language); also, Covino v. Hagemann, 627 N.Y.S.2d 894 (N.Y. Sup. 1995); Bradshaw v. Swagerty, 563 P.2d 511, 514 (Kan. App. 1977) ("nigger," "bastard," and "knot-headed boy," however insulting and abusive, not slander per se ); Stepien v. Franklin, 528 N.E.2d 1324, 1329 (Ohio App. 1988) (description of a sports figure as "scum," "a cancer," "an obscenity," and a "pathological liar," among other things, held to be statements of opinion and thus not actionable); Ledsinger v. Burmeister, 318 N.W.2d 558 (Mich. App. 1982) (although racial epithet "nigger" may be offensive, its natural and ordinary import is as a slang term referring to members of Negro race, a meaning that is not defamatory, and such use did not constitute actual defamation sufficient to state cause of action for slander.); Irving v. J.L. Marsh, Inc., 360 N.E.2d 983, 985 (Ill. App. 1977) ("In arguing that the racial slur 'nigger' implies that an individual is generally lacking in the virtues of honesty, intelligence or creativity, we believe plaintiff attributes a definition to the word that is far in excess of its meaning.").

And, Polonsky v. Cousins, 2001 WL 95703 (Mass. Super. Feb. 4, 2001):

"As a general rule, a cause of action for defamation may be supported by a claim that the defendant used words that hold the plaintiff up to contempt, hatred, scorn or ridicule, or tend to impair his standing in the community. However, an evolving body of cases based on both constitutional and common law considerations constrains the ambit of this tort by prohibiting redress for racial, ethnic, religious or gender-based epithets, pejorative rhetoric, and 'pure' statements of opinion. Lyons v. Globe Newspaper Co., 415 Mass. 258, 266-67 (1993); Pritsker v. Brudnoy, 389 Mass. 776, 778 (1983). See generally Nolan and Sartorio, Tort Law § 130 (2d ed.1989)."

In 1999, a woman sued Imus for the same thing – making derogatory, insulting comments about her on the air. The NY Supreme Court's appellate division upheld the trial court's dismissal in a short, 1-page ruling that’s strikingly on-point here as well:

"When considered in the context of the ribald radio 'shock talk' show in which they were made, it is clear that the complained of statements would not have been taken by reasonable listeners as factual pronouncements but simply as instances in which the defendant radio hosts had expressed their views over the air in the crude and hyperbolic manner that has, over the years, become their verbal stock in trade. Gratuitously tasteless and disparaging as defendants' remarks about plaintiff were, they were nonetheless properly deemed by the motion court to have been nonfactual, and hence nonactionable, statements of opinion (see, Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986))."

Hobbs v. Imus, 266 A.D.2d. 36, 698 N.Y.S.2d 25 (N.Y. App. 1999).

See also, Roth v. United Federation of Teachers, 787 N.Y.S.2d 603, 611 (N.Y.Sup. 2004):

"Statements of opinion are absolutely privileged and shielded from claims of defamation under Article 1, Section 8 of the New York State Constitution, no matter how vituperative or unreasonable the opinions may be (see Brian v. Richardson, 87 N.Y.2d 46, 637 N.Y.S.2d 347, 660 N.E.2d 1126 (1995); Steinhilber v. Alphonse, 68 N.Y.2d 283, 286, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986) citing Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977) ("It is a settled rule that expressions of an opinion false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions."); see also Held v. Pokorny, 583 F.Supp. 1038, 1040 (S.D.N.Y. 1984). And, although the boundary line between fact and opinion is not a precise one (Held, 583 F.Supp. at 1040; Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974)), in general, 'rhetorical hyperbole' and 'vigorous epithets' are expressions of opinion (see Letter Carriers, 418 U.S. at 284, 286), as are 'concepts whose content is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity.' (Buckley v. Littell, 539 F.2d 882, 894 (2d Cir.1976)). The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion (Steinhilber, 68 N.Y.2d at 290, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986); see also Gross, 82 N.Y.2d at 155, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993)."

Dillon v. City of New York, 261 A.D.2d. 34, 38, 704 N.Y.S.2d 1, 5 (N.Y. App. 1999):

"In evaluating whether a cause of action for defamation is successfully pleaded, the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716 (1983). Courts will not strain to find defamation where none exists. (Cohn v. National Broadcasting Co., 50 N.Y.2d 885, 887, 430 N.Y.S.2d 265, 408 N.E.2d 672 (1980). Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable (Gross v. New York Times, 82 N.Y.2d 146, 152-153, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993); Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 244, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991))."

DeAngelis v. Hill, 847 A.2d 1261, 1268 (N.J. 2004):

"The 'content' analysis requires courts to consider the 'fair and natural meaning that will be given to the statement by reasonable persons of ordinary intelligence.' (quoting Romaine v. Kallinger, 109 N.J. 282, 290, 537 A.2d 284, 288 (1988)). The use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are to be discouraged, but such comments are not actionable. Id. at 529-30, 643 A.2d at 978-79. Courts are required to differentiate between defamatory statements and 'obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse.' Id. at 530, 643 A.2d at 979 (quoting Rodney A. Smolla, Law of Defamation, § 4.03, at 4-10 (1986))."

Lowinger v. Jacques, 204 A.2d 175, 612 N.Y.S.2d 18 (N.Y. App. 1994):

"We find that the offending statements are nonactionable because they were merely expressions of opinion (see, Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550), and also because, while offensive, they amounted to nothing more than mere insult, not to be taken literally and not deemed injurious to reputation (DePuy v. St. John Fisher College, 129 A.D.2d 972, 514 N.Y.S.2d 286 (1987))."

Dworkin v. L.F.P., Inc., 839 P.2d 903, 915 (Wyo. 1992) (citing to Greenbelt Coop. Publishing Ass’n., Inc. v. Bresler, 398 U.S. 6 (1970) and Hustler Magazine v. Falwell, 485 U.S. 46 (1988)):

"Abusive epithets, vulgarities and profanities are nonactionable. Rodney Smolla, Law of Defamation § 4.03, at 4- 09 to -10 and § 6.12[10], at 6-52 (1991); see cases cited therein. The ad hominem nature of such language easily identifies it as rhetorical hyperbole which, as a matter of law, cannot reasonably be understood as statement of fact. Clearly falling into this category are Hustler's statements characterizing Dworkin as: 'little guy, militant lesbian feminist,' a 'shit-squeezing sphincter in her own right,' 'one of the most foul-mouthed, abrasive manhaters on Earth,' a 'repulsive presence,' 'a cry-baby who can dish out criticism but clearly can't take it,' 'Spence's foaming-at-the-mouth client,' and 'a censor.' Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim."

Dillon v. City of New York, 261 A.D.2d. 34, 38, 704 N.Y.S.2d 1, 5 (N.Y. App. 1999) (former supervisor's use of term "fucking asshole" to describe terminated assistant district attorney could not reasonably have been construed to communicate actual facts, and thus was not actionable as defamation).

Wanamaker v. VHA, Inc., 19 A.D.3d 1011, 797 N.Y.S.2d 672 (N.Y. App. 2005) (reference to nurse as "surgery Nazi" was non-actionable rhetorical hyperbole and expression of opinion); Moriarty v. Lippe, 294 A.2d 326, 329-34 (Conn. 1972) ("big fat ape" and "stupid son of a bitch," while vulgar and abusive, not slander per se).

Lee v. Kim, 2007 WL 2241493 at *5 (N.Y. Sup. Aug. 2, 1007) (statements calling plaintiff a "great prostitute"; referring to her by a Korean term meaning a "woman who serves men liquor in a strip joint or Korean club"; as insane; a "psychotic bitch"; "doing the dance of Satan"; and as having an affair with a named individual; are statements of opinion and otherwise not defamation per se).

New York law allows an individual to sue for defamatory comments about a group which they are a member of, if the group is relatively small.

Brady v. Ottaway Newspapers Inc., 84 A.D.2d 226, 445 N.Y.S.2d 786 (1981):

"In contrast to the treatment of an individual in a large group which has been defamed, an individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about a group by showing that he is member of the group.

"The intensity of suspicion test is applicable in group libel cases and holds that, in order to obtain personal application, there be a factual inquiry to determine the degree that the defamatory comments or accusation of the group focuses on each of the individual members of the group.

"In order for members of a defamed group to have individual causes of action for defamation, the group must be isolated by standards set forth or implied in the comment, the plaintiff must be within that group, and imputation to the plaintiff will be evaluated in relation to the group as defined by the comment and not by the plaintiff's relationship to a smaller subset of the group defined."

Also, Sovik v. Healing Network, 244 A.D.2d 985, 665 N.Y.S.2d 997 (N.Y. App. 1997) (plaintiff who is not named in allegedly defamatory communication may nevertheless maintain action for libel if he can establish that he is member of group that has been defamed, and that group is small enough that reader would understand that defamatory statement refers to him).

In Brady, the targeted group consisted of 53 police officers. In Sovik, the plaintiff was one of only 3 Hindu priests in the United States, and one of 15 "senior teachers" (of the traditional Hindu spiritual philosophy at issue) in the U.S.

According to the Rutgers Women’s Basketball website, their team roster has 10 members:

Blogger David W. -- 8/18/2007 11:27 PM  

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