You Dirty Rotten ^%@$#@^$

14Dec11

Every novelist worth his Mont Blanc has to know something about libel law.

In fact, anyone with a mouth, an opinion and an inclination to express it should, because there are a lot of thin-skinned people out there, and even more hungry lawyers. So today I’m going to talk a little about insults.

[NOTE: The law of defamation[1] is rooted in the common law. Consequently, the principles that guide it are somewhat uniform in the United States. I am going to use generalities, but as you will see, the case law comes from all corners. Disclaimer: the following is not legal advice, you are not my client, and you are to take none of this as an invitation to say nasty things about others.]

There is a widespread misconception that defamation law protects the individual from the ridicules and insults of his detractors. Quite the opposite is true. As a general rule, “epithets, rhetorical hyperbole, or pure statements of opinion” are not actionable.  Lyons v. Globe Newspaper Co., 415 Mass. 258 (1993).

It is true that a statement is defamatory if holds one “up to contempt, hatred, scorn, or ridicule or tend to impair his standing in the community, at least to his discredit in the minds of a considerable and respectable class in the community.” Tartaglia v. Townsend, 19 Mass. App. Ct. 693 (1985).  You’d think that included insults and mockery. It does not.  An epithet that constitutes “a lusty and imaginative expression of the contempt” does not entitle the victim to relief. National Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974). To be defamatory, the statement has to assert facts, not opinion, no matter how vicious it is.

Here are some colorful examples:

In Fleming v. Benzaquin, 390 Mass. 175, 180 (1983), radio host Paul Benzaquin referred to the hapless Fleming as “arrogant,” a “little monkey,” “tough guy,” “absolute barbarian,” “lunkhead,” “meathead,” and “nut.” These insults were deemed “no more than either Benzaquin’s ‘harsh judgment,’ ‘mere vituperation and abuse.’”

Benzaquin’s insults aren’t the most opprobrious examples of protected hyperbole, either. In Travers v. Shane, 4 Mass. L. Rep. 141, 142-143 (1995), “fat, f***ing, disgusting bitch” didn’t make the grade. In Puccia v. Edwards, 10 Mass. L. Rep. 185 at 11(1999), the defendant’s accusation that Puccia was a “racist” and a “harasser” was found to be protected opinion. In, Tech Plus Inc. v. Ansel, 9 Mass. L. Rep. 671 (1999), accusing someone of anti-Semitism and mental instability was not actionable.

In Lane v. Bump, 1995 Mass. Super LEXIS 117, the defendant’s characterization of Lane as incompetent and fraudulent was likewise protected opinion. In Hyatt v. Lucas, 1995 Mass. Super LEXIS 35, an editorial opinion’s reference to Hyatt as a “flasher” was protected opinion.

But my favorite is the California case of Ferlauto v. Hamsher, 74 Cal. App. 4th 1394 (1999), where the plaintiff (a lawyer no less) was called “a whore’s son,” “full of shit,'” “Kmart Johnnie Cochran,” “loser wannabe lawyer,” “creepazoid attorney,” and “meanest, greediest, low-blowing motherfucker.” Toughen up, counselor, you’re out.

In Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 14 (1970), the use of word “blackmail” to describe a developer’s tactics was not libelous as matter of Constitutional law. In National Ass’n of Letter Carriers, supra at 284-286 (1974), the use of the word “traitor” in literary definition of a union “scab” was not actionable defamation. In Woodcock v. Journal Pub. Co., 230 Conn. 525, 540 (1994), accusations that a planning board member was engaged in “back room deals” did not support a verdict of libel. In Lizotte v. Welker, 45 Conn. Supp. 217(1996), newspaper’s reference to Plaintiff’s settlement with the zoning board as an “illegal deal” and “illegal out-of-court settlement” was not libelous. In Pullum v. Johnson, 647 So. 2d 254 (1994), calling the Plaintiff as a “drug pusher” was deemed incapable of defamatory meaning in the context of a hotly contested political debate. And last but not least, in Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986) the use of language to refer to a union scab as “fat, ugly, backstabbing, lacking in talent or ambition” was not actionable, in context of labor dispute.

So there you have it. Namecalling is a popular American sport, and we play it with gusto.

To be in danger of a libel suit, you must assert facts that are defamatory, and those must be proven false. If the facts asserted cannot be proven false, they cannot be libelous.

Not that this would stop the next Kmart Johnny Cochran.


[1] Defamation can be made by oral statement (slander) or written statement (libel).

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19 Responses to “You Dirty Rotten ^%@$#@^$”

  1. So Pete, saying you are a nice guy would be considered what?

  2. That’s all accurate, but one would do well to remember that (in the US, at least) anyone can sue anyone for just about anything.

    Lawsuits are expensive to fight, and while you *might* be able to collect legal costs if you win, you might not (either because you’re not awarded legal fees or because the plaintiff just doesn’t have the money to pay actually them), and you’re still going to have to pay to defend yourself up front.

  3. Pete, you slimy wretch of an ambulance-chaser and illiterate hack of a writer, once again you’ve provided us with an amusing and informative piece. Stop it, you filthy piece of cowpie.

    • You can expect a big f@#$%@$ federal marshal (with a badge the size of a pastrami sandwich) at your door.

      Poof.

  4. Phew. I should be OK, then. Well, he IS a dickhead.

  5. 9 Tony Barker

    Nice one Pete, and an efficient way to get some extra value from all that legal research you did to defend yourself.

  6. That’s a relief, since it’s all true and they were total lying SOBs in a court of law which is how they are described. What would you charge to read my MS for possible lible, since attorneys are included althouh names have been changed to protect the guilty? Seriously.

  7. Tony, not myself, a client who couldn’t pay. But yeah, the research has to pay off somehow, right?

    CJ – your inquiry suggests that the narrator may lack sufficient distance from the subject matter. Feel free to contact me offline.

  8. Interesting and Paul Benzaquin, wow, did my dad hate that guy, almost as much as Jerry Williams. Found you blog via your excellent story in the Fall issue of Needle. I live in Pepperell, but grew up in Billerica. Cool to find out about another Mass writer, Best of luck and I look forward to following your blog / writing. My brothers also an attorney.

  9. What an informative post. You’ve got some great examples in there and the “K-mart Johnny Cochran” insult made me giggle, actually. I always try to remain respectful when expressing my opinion, especially if it’s negative. Not just to keep from getting sued, but because civility is the adult thing to do.

    Thank you for sharing!

  10. I’m always conscious of how the things I write could be challenged. The way it comes out, I’ve dropped half of the Library of Congress on somebody’s shoes, by the time I’m done. I’ve been called nasty names and had my character assassinated, but it all works out. They can get back to me in 100 years and let me know how it worked out for them.

    http://georgesblogforum.wordpress.com/

  11. This one I love! Informative, well-written, and easy on the eyes and brain. I just finished a book on the first amendment by award winning and best selling author Anthony Lewis called: FREEDOM For the Thought That We Hate: A Biography of the First Amendment. I would recommend this book for anyone and everyone regardless of their education level.

    jps


  1. 1 The Daily Climb-Wednesday, Feb. 8th, 2012 | The Daily Climb-Daily Posting Of Relevant Content
  2. 2 Prostitution and Slander « Pete Morin

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