Eugene Volokh's Blog, page 224

[Sasha Volokh] Last chance to vote for "Mesaĝo en botelo" on YouTube!

Last week, I posted about a new Esperanto film I made, which I submitted to an Esperanto film festival (the 6th American Good Film Festival). (It's really short: under five minutes long. And don't worry: it has English subtitles.) It's called "Mesaĝo en botelo," or "Message in a bottle." My kids (and a couple of others) have acting or voice roles in it, and my twelve-year-old son Mark did the video and sound editing. You might remember my Esperanto film from last year, "Honesta homo" ("An honest person"), which was about Diogenes.

Voting closes today (Monday)—the film with the most "likes"/"thumbs-up" on YouTube gets the "audience choice" award in the film festival. So please click through to YouTube and like the video there. And spread the word!

(I don't think you can "like" a YouTube video when you watch it on this blog: click on the title at the top of the video to open it in YouTube.)

The post Last chance to vote for "Mesaĝo en botelo" on YouTube! appeared first on Reason.com.

[Eugene Volokh] College Baseball Coach's Defamation Case, Alleging School Said He Was Fired Because He Acted in Racist Ways, Allowed to Go Forward

From Judge David Alan Ezra's decision in Penders v. St. Edward's Univ. (W.D. Tex.), decided in March but just recently posted to Westlaw; the case has since settled, for an amount that to my knowledge has not been made public:

Penders is a white male who formerly worked as the head baseball coach of SEU from the fall of 2006, until his termination on December 3, 2021. According to Penders, he is the winningest coach in SEU history and was a model employee of SEU.

Prior to the 2020 baseball season, Penders alleges that he recruited Jacques Palmer, a black male, to play baseball at SEU, but the 2020 season was abruptly cancelled due to the COVID-19 pandemic. During the 2021 season, according to Penders, Palmer went 0 for 8, but had limited playing time, and his eligibility expired at the end of that season. Palmer asked SEU to petition the NCAA for an additional year of eligibility. SEU apparently made the decision not to do so; Penders alleges that although the decision whether to petition the NCAA for the extra year of eligibility was not up to him, Palmer learned he would not be eligible and decided to make a complaint to SEU accusing Penders of racism and discrimination against Palmer as a black male.

Thereafter, SEU hired an external investigator to investigate Palmer's allegations. According to Penders, the investigator determined that Penders did not engage in any racist or discriminatory acts and that he had not violated any SEU rule or policy. Despite knowing the outcome of the independent investigation, Penders alleges that SEU and SEU President Montserratt Fuentes ("Fuentes") worked to conceal the outcome of the investigation and intentionally misled the community in an effort "to falsely portray herself [Fuentes] as fighting … for 'social justice.'" Penders contends that SEU and Fuentes "deliberately led students, faculty and the community to conclude that Penders had engaged in racist and discriminatory acts even though an external investigator and Fuentes herself concluded precisely the opposite."

According to Penders, SEU had a communication plan to conceal from the community the outcome of the investigation and to deploy "optics" which would mislead students into believing Penders had been found guilty of discrimination, and that certain "consequences," including watching training videos on communicating with players and cultural awareness, had been imposed on Penders for discriminatory conduct. Penders suggests SEU intentionally and dishonestly portrayed Fuentes as fighting against Penders for "social justice" to display SEU in a good light following the events of the May 25, 2020 murder of George Floyd by a police officer in Minneapolis, Minnesota, which triggered national conversations about racial violence and inequality, including in university settings such as SEU.

Subsequent to the investigation, Penders alleges that after SEU notified Palmer of the outcome of the investigation exonerating Penders, Palmer took to social media in an effort to put pressure on Fuentes to fire Penders. On October 4, 2021, Penders asserts that Palmer and his friend posted an online petition with the headline "Remove Coach Penders of St. Edward's University for Racist Comments and Discrimination." Penders contends that the petition inaccurately states that he was "found guilty" of several claims, including saying the "N-word" in front of the team before a practice, telling black student athletes to remove their head coverings, and telling black players about his family's racist history and being insensitive to the experiences of black people." The petition goes on to read that "[d]espite the University finding [Penders] guilty, they have chosen not to suspend or remove him from his position" and that the petition seeks to remove Penders from his position to make SEU "understand the severity of [Penders'] actions and the consequences his discrimination has on Black players."

According to Penders, Fuentes quickly learned of the petition and the students' reactions to it and instead of telling the truth about the outcome of the investigation, Fuentes instead "chose to mislead students and faculty to further perpetuate the false narrative of a racist White employee whose racism Fuentes was pretending to have stood up to." On October 5, 2021, Fuentes sent an email to every member of the university community in direct response to the petition which states that "[a] recent and confidential athletics personnel matter necessitated a thorough and comprehensive investigation conducted by an independent firm," and that "[f]ollowing the investigation, the university has taken actions, and there have been consequences which are consistent with the university's mission and policies."

Penders contends that Fuentes's statement failed to include that the independent investigation had actually exonerated Penders. Penders asserts that Fuentes intentionally declined to include this information "to leave the community with the false sense that [she] was battling against racism." According to Penders, given that Fuentes had just started her tenure as the SEU president on July 21, 2021, or just over two months prior to the petition, Fuentes sought "to bolster her 'social justice' credentials at this early hour of her presidency" because she was the "first Hispanic president to lead St. Edward's."

Penders alleges that Fuentes's email to the university community triggered the petition to gain over 600 signatures calling for Penders's termination, including some signatures by SEU faculty members who had no knowledge the investigation had exonerated Penders. Additionally, Penders states that the university newspaper reported on the email Fuentes had sent out and stated that the investigation involved Penders. Despite the article being published in the school newspaper, Penders argues that Fuentes and SEU again declined to set the record straight that he had been cleared of any wrongdoing. On October 13, 2021, subsequent to the article, a student-led protest and demonstration occurred on the SEU campus which called for Pender's resignation.

Thereafter, Penders states that Melinda Terry, Associate Director of Athletics for Compliance, informed him that she had requested that Lisa Kirkpatrick, Vice President for Student Affairs, set the record straight about the outcome of the investigation, but that SEU never did. On October 22, 2021, Penders alleges that a faculty senate meeting turned heated with questions concerning why Penders had not yet been terminated and again Fuentes and SEU refused to tell the truth of the investigation. According to Penders, during this whole time, Fuentes had instructed him to say nothing about the allegations or the investigation.

Subsequently, Dom Thornton, a different, former SEU baseball player came forward to accuse Penders of race discrimination for events that had happened more than three years' prior in 2018. Penders alleges that Thornton played only one season at SEU and that, during a game, Penders and Thornton got into a disagreement about Thornton's swing on a pitch which ultimately resulted in Thornton quitting the team during the middle of the game. After he failed to show up for a double header scheduled that weekend, Thornton texted Penders, asking him if he could get back on the team. Penders met with Thornton the following week to discuss it, along with SEU assistant baseball coaches Bryan Faulds and David Wood, informing Thornton that he would not be allowed to return to the team. Penders, however, allowed Thornton to keep his athletic scholarship. According to Penders, there was nothing about the interaction with Thornton that had to do with his race.

Penders alleges that, in October 2021, over three years later, Thornton "sought to capitalize" on "the controversy" created by Palmer and demanded a monetary settlement from SEU. Penders states that Thornton's lawyer notified SEU that Thornton had secretly recorded his conversation with Penders from 2018 when Thornton had asked Penders to be reinstated to the team, giving a copy of the tape to SEU. Thereafter, on October 18, 2021, Penders was notified by SEU that another complaint had been filed against him for race discrimination, and that the same external investigator would be handling the investigation of the complaint.

According to Penders, following a thorough investigation, the external investigator once again found that Penders had not engaged in racism, discrimination, or any other violation of a university policy or rule in his dealings with Thornton. Penders alleges that SEU leadership, including Fuentes, agreed with the investigator's findings exonerating Penders. The results of the investigation were communicated to Penders by SEU on November 16, 2021, and he received written confirmation on December 2, 2021, that the "investigation did not find any support for the allegations of racial discrimination or any violation of the University's discrimination policies."

Penders alleges that Fuentes was once again given an opportunity to clear Penders's name to the SEU community, especially given that a march on the SEU Main Building was soon planned as part of a #RobPendersResign movement. However, Penders contends that Fuentes and SEU still refused to communicate to anyone the results of the investigation. Instead, Penders alleges that Fuentes made the decision to terminate his employment. According to Penders, Fuentes made this decision "amid escalating pressure to fire Penders for discrimination," and her misleading the community into believing he had engaged in discrimination….

Penders was eventually fired; he sued for race discrimination (a claim that the court concluded lacked sufficient evidence), retaliation for complaints of discrimination (a claim the court allowed to go forward to trial), and for defamation, which the court also allowed to go forward to trial. Here's the heart of the defamation analysis:

Plaintiff alleges defamation claims against SEU for "publishing libelous and slanderous statements about Penders throughout 2021 by falsely and maliciously conveying the message that Rob Penders had discriminated against Jacques Palmer and Dom Thornton and that Rob Penders engaged in acts of racism and bias." … [Among other things,] Plaintiff asserts that SEU's statements in its October 5, 2021 email that it had "taken action" against Penders and imposed "consequences" for behavior that was "not alignment with its values," are all textbook examples of defamation by implication. Plaintiff argues that the key fact—that Penders was exonerated of race discrimination by SEU's own investigator—was omitted….

Plaintiff offers the following statements made by SEU that he contends constitutes defamation. First, Plaintiff offers SEU's email to the SEU community on October 5, 2021, after Palmer's online petition posted the day before, in which Palmer claimed that Penders used the "N word" in front of players, told Black players to remove their head coverings, told Black players about his family's racist history, was insensitive to Black people, and states that Penders had been found guilty of race discrimination and should be terminated. After the online petition was posted, SEU issued an email to the school community the next day which stated among others, that "[a] recent and confidential athletics personnel matter necessitated a thorough and comprehensive investigation conducted by an independent firm," and "[f]ollowing the investigation, the university has taken actions, and there have been consequences which are consistent with the university's mission and policies." Plaintiff contends this email, made without any context, infers that the allegations made by Palmer in the petition were true.

Second, Plaintiff includes evidence of an October 12, 2021 SEU school newspaper article which Plaintiff asserts led much of the student body to conclude that he had been found guilty of racism and discrimination following SEU's October 5 email.

Third, Plaintiff provides evidence of an October 14, 2021 statement by the SEU Student Government Association which SEU administrators helped draft, that states "[w]e do not condone racism." Plaintiff contends this statement is in clear reference to him as the first line in the statement discusses Palmer's petition.

Fourth, Plaintiff includes a copy of an October 20, 2021 speech co-written by SEU administration which was read at a student rally. The speech includes a statement that "[i]in light of what was shared on the [Palmer] petition, it is incredibly disappointing and concerning that a student experienced racism and anti-blackness on our campus," and that "[t]he way the university has handled this situation of bias and racism has been incredibly frustrating." Plaintiff argues this evidence demonstrates that the SEU community and the public believed Penders was guilty of discrimination and that SEU knew that its communications had led the public to that conclusion, but that it was not true and SEU knew that but still conveyed that message to the public.

Finally, Plaintiff cites evidence that on December 3, 2021, SEU issued a public statement announcing Penders's termination which referenced SEU's prior statements regarding Palmer's petition, and referred to "new concerning information and allegations … regarding the head baseball coach that are not in alignment with our values," and which Plaintiff argues clearly communicated to the public that he had been fired because he was found guilty of discrimination. As additional support for his claims, Plaintiff includes a December 16, 2021 KVUE, the Austin ABC television affiliate station, story which reports that Penders was terminated "over allegations of racism and discrimination." Plaintiff contends that "the public predictability concluded what KVUE reported based on SEU's statements: that Penders was in fact guilty of discrimination." …

Even if some of SEU's statements in isolation may not be actionable, viewing the posts in their entirety, the gist of the statements in—(1) SEU's October 5 email published only one day after Palmer's petition was posted online; (2) SEU's Student Government's statement on October 14, which Plaintiff provides evidence was in part drafted by SEU's administration; (3) the October 12 SEU newspaper article; (4) the October 14 SEU Student Government statement; (4) the October 20 speech co-written by SEU administrators; and (5) the December 3 public statement—is that Plaintiff was guilty of each of the things that Palmer accused him of in his petition, including race discrimination….

The Court finds that some of the statements that contribute to the defamatory gist of SEU's text are verifiable statements of fact. For instance, SEU's statements in the October 5 email that it had "taken action" against Penders, and imposed "consequences" for behavior that was "not in alignment with its values" are verifiable statements of fact. Additionally, although SEU argues that any statements that allegedly conveyed the message that Penders "engaged in acts of racism and bias" are not actionable because they are expressions of opinion that cannot be proven as verifiably true or false, the Court disagrees. The Court must consider this "legal question from the perspective of a reasonable person's perception of the entirety of the communication, not from isolated statements."

As discussed, Plaintiff has presented additional evidence to support his allegations that SEU conveyed the message that he had done each of the things that Palmer accused him of in his online post, including saying the "N word" in front of players, telling only Black players to remove their head coverings, explaining his family's racist history, and being insensitive to Black people. Given this, the Court finds that—from the perspective of a reasonable person's perception of the communication—SEU's discrete statements created an actionable impression that Plaintiff was guilty of racism and bias, and that these statements were not simply a statement of opinion. Accordingly, the Court concludes that Plaintiff has demonstrated that SEU's statements are "reasonably capable of a defamatory meaning." …

In support of its assertion that it made true statements, SEU cites a chart which it contends demonstrates that its true statements match the record evidence in this case. SEU also argues that its statements were substantially true and that it did not publish other true statements that would have been more damaging to Penders's reputation than the defamatory gist of its statements. These statements include that: (1) the investigator found that Penders read the term "nigga" out loud in front of baseball players, some of whom were African American; (2) the investigator found that Penders exhibited cultural insensitivity when he told baseball players, some of whom were African American that he had a history of racism in his family and that he said African American players only wore du-rags or other hair coverings because they saw athletes wear them on television rather than to protect their hair; and (3) SEU concluded that Penders treated Thornton in a disrespectful, belittling, and disparaging manner during the February 2018 meeting.

SEU also includes as evidence statements of potential employers of Penders after he was terminated who ultimately declined to hire him after SEU terminated him. SEU cites portions of these individuals' depositions which stand for the proposition that had SEU included the above statements, they would not have hired Penders.

Plaintiff, however, disputes these facts and argues that SEU's claims that it published the truth is inaccurate because the statements omit other key facts. For instance, Plaintiff cites evidence that he did not use the word "nigga" in front of baseball players and that others were present in the room when it was allegedly said and do not recall hearing it. Plaintiff also cites evidence that he was not culturally insensitive when discussing on a zoom meeting with the baseball team—which Palmer did not even attend—his family's past racial insensitiveness after SEU had encouraged its coaches to be open with their teams about racial injustice in light of the May 2020 murder of George Floyd. Plaintiff further cites SEU's letters to both Penders and Palmer subsequent to the internal investigation, and which do not conclude that Penders was racially insensitive.

Plaintiff further maintains that SEU has not met its burden with the substantial truth defense because the additional "facts" it relies on, even if they are true, are not the "substantial truth" because they omit other key facts, including that: (1) SEU's own investigator concluded that Penders did not act in a discriminatory manner or violate a university policy in regard to either Palmer or Thornton; and (2) SEU agreed with these findings. Plaintiff also argues that SEU's unpublished statements discussed above are not more damaging to Penders than the published statements, especially where they only tell half of the story.

The Court agrees with Plaintiff. Given the disputing evidence presented by the parties, the Court finds that SEU has not established as a matter of law that the gists of its statements upon which Plaintiff complains is substantially true and not more damaging than the absolute truth would be, especially where Plaintiff has presented competing evidence that SEU omitted other key facts. Instead, the Court finds a dispute of fact exists on this issue….

The court also noted that plaintiff didn't have to prove specific damages, because the accusations were "defamation per se":

"Defamation per se occurs when a statement is so obviously detrimental to one's good name that a jury may presume general damages, such as for loss of reputation or for mental anguish." "Statements that injure a person in [his] office, profession, or occupation are typically classified as defamatory per se." …

The Texas Supreme Court has determined that "'[d]isparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff's business or profession.'" Here, the Court finds statements that portray a baseball coach has engaged in racism or discrimination go directly to one's professional ability to lead, manage, and relate to and connect with players, including minority players on a team. Plaintiff has presented evidence that employers hiring baseball coaches consider these qualities in the decision-making process. Therefore, the Court finds that a character trait that someone is not racist, insensitive, or bias is "peculiarly valuable" in Plaintiff's profession as a baseball coach. The Court thus concludes that, contrary to SEU's arguments, Plaintiff has adequately alleged defamation per se in this case….

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[Eugene Volokh] Why Suing LLCs in Federal Court Under Diversity Jurisdiction Can Be So Complicated

From Wednesday's decision by District Judge Cogan (E.D.N.Y.) in Coward v. Nat'l Railroad Passenger Corp.:

The lack of knowledge of the membership of a limited liability company or limited partnership has at times caused an enormous waste of judicial and party resources when a party purports to invoke diversity jurisdiction and it turns out later that there wasn't any. As the Seventh Circuit held in Belleville Catering Co. v. Champaign Market Place, LLC (7th Cir. 2003):

Once again litigants' insouciance toward the requirements of federal jurisdiction has caused a waste of time and money…. Counsel tells us that, because the lease between Belleville Catering and Champaign Market Place refers to Belleville Catering as "a Missouri corporation," he assumed that it must be one. That confesses a violation of Fed. R. Civ. P. 11…. [C]ounsel must secure jurisdictional details from original sources before making formal allegations.

The Court sees no reason to take that risk here….

Plaintiff brought this purported diversity case alleging he is a "resident" of Sicklerville, New Jersey {an inadequate jurisdictional allegation[ because jurisdiction turns on citizenship and not mere residence]} and that defendant Second Street Leasing, LLC is a "limited liability company formed and existing under the laws of the [s]tate of Connecticut."

As plaintiff subsequently recognized, this was an inadequate allegation of defendant's citizenship because the citizenship of an LLC has nothing to do with its state of formation or principal place of business; rather, the citizenship of an LLC consists of the imputed citizenship of each one of its members. This Court therefore issued an Order requiring plaintiff to show cause why the cause of action should not be dismissed for failing to adequately plead subject matter jurisdiction.

Plaintiff responded to the Order to Show Cause, in part, with a proposed amended complaint. It repeats the irrelevant allegation (because Second Street is an LLC) that Second Street is formed and existing under Connecticut law, and the equally irrelevant allegation (again, because Second Street is an LLC) that its principal place of business is in Connecticut. The proposed amended complaint then alleges that "upon information and belief, Mr. Mathew Zaloumis was and is a citizen of the State of Connecticut" and, most importantly, that "upon information and belief, Mr. Matthew Zaloumis, was the sole member of defendant Second Street." Plaintiff has also submitted Second Street's certificate of organization, which shows Zaloumis is the "managing member" of Second Street and that his residence address is in Connecticut….

If there were an adequate basis for the "upon information and belief" allegation that Zaloumis is the sole member of Second Street, plaintiff would have properly invoked diversity jurisdiction. But there isn't. The only basis plaintiff has identified is that Second Street's certificate of organization is signed by its managing member, who happens to be Zaloumis. The certificate, consistent with limited liability company law in almost all 50 states, does not state that he is the only member; for all plaintiff's lawyer knows, there could be two, three, or dozens of other members in addition to Zaloumis, of whose citizenship he has no idea. Positing that Zaloumis is the "sole member" is just wishful thinking on his part so he can get into federal court.

The pleading standard set forth by the Supreme Court … requires courts to remove conclusory assertions and legal conclusions in assessing the sufficiency of a complaint. There seems little doubt that the same standard governing substantive allegations in a complaint also applies to jurisdictional allegations. Subject matter jurisdiction, after all, is the keystone upon which every event that occurs in the case depends.

Plaintiff has direct evidence from Second Street's certificate of organization that Zaloumis is a member of Second Street and a Connecticut resident because the certificate so states. From that, plaintiff has inferred that Zaloumis is a Connecticut citizen, although citizenship requires a much more detailed inquiry than residency. He has further inferred that Zaloumis is the sole member of Second Street. But even allowing that Zaloumis's citizenship based on his residence might be a "plausible" inference rather than a merely "possible" one under Twombly and Iqbal, it is a step too far to infer that Zaloumis is the only member of Second Street.

The certificate does not support an inference as to that question one way or the other. Under Connecticut law, there is no requirement to publicly identify even a single member of the LLC. It may designate either a manager or a member. And as noted above, the certificate of organization has nothing to do with addressing how many members the LLC has.

If the inference as to sole membership could be drawn from the mere identification of one member, it would be all too easy to assert jurisdiction over any foreign LLC based on its certificate of organization. In almost all jurisdictions, an LLC certificate identifies the member or a manager upon whom service may be made – and that's it.

As the use of LLCs in lieu of the corporate form has greatly expanded, the Supreme Court has acknowledged that from a business perspective, it may not make sense for diversity of citizenship purposes to distinguish between LLCs, limited partnerships, and other unincorporated business entities, on the one hand, and corporations, on the other hand: "The resolutions we have reached [regarding this distinction] can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization." Nevertheless, the Supreme Court has concluded that any change is "'properly a matter for legislative consideration which cannot adequately or appropriately be dealt with by this Court.' … In other words, … we have left further adjustments to be made by Congress." Moreover, there have been proposals to amend the Judicial Code to treat LLCs the same as incorporated entities for purposes of diversity jurisdiction, but none have ever been adopted.

Congress must, of course, be aware of the promulgation of LLCs as a desirable business entity form. It must also be aware that few, if any, states require under their limited liability company statutes that organizers publicly file a list of their members, making it more difficult to allege their citizenship in federal court. Although one cannot read too much intent into a congressional failure to act, Congress has in fact considered, and rejected, whether to bring the definition of LLC citizenship in line with that of a corporation. Indeed, in the Class Action Fairness Act, it has redefined the citizenship of an LLC for purposes of diversity, thus making cases involving LLCs more amenable to federal jurisdiction. But it has not done so generally, and courts should not liberalize the requirements where Congress has not.

No doubt, this can make it hard for a plaintiff to sue an LLC in federal court, as one of the purposes of forming an LLC may be to deter public identification of its members…. "While various state legislatures have decided to permit the members of LLCs to remain anonymous to the public at large, Congress has not created an exception to the requirements of diversity jurisdiction which would allow the members of LLCs to remain anonymous in federal court." … As the Eleventh Circuit has noted, this means there is "difficulty [in] applying established diversity jurisdiction principles to 21st-century business organizations." But that is the way Congress has left it. The Court is not going to circumvent the statute by finding that it has diversity jurisdiction based on a conclusory allegation than an interest holder is the sole interest holder….

Plaintiff's second cause of action is dismissed for lack of diversity jurisdiction.

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[Josh Blackman] Part XI: Freedom of Speech

Sedition and Prior Restraint

"Clear and Present Danger" Schenck v. United States (1919)
Debs v. United States (1919)
Abrams v. United States (1919)
Gitlow v. People of the State of New York (1925)
Stromberg v. California (1931)

When Is Conduct Speech?
United States v. O'Brien (1968)
Texas v. Johnson (1989)
R.A.V. v. City of St. Paul (1992)

Does Money Equal Speech? Buckley v. Valeo (1976) McConnell v. Federal Election Commission (2003) Citizens United v. Federal Election Commission (2010)

Does the First Amendment Protect Tortious Speech? New York Times Co. v. Sullivan (1964) Snyder v. Phelps (2011)

Does the First Amendment Protect "Offensive" Speech? U.S. v. Stevens (2010) Brown v. Entertainment Merchants Association (2011)

Tinker v. Des Moines Independent Community School District (1969)

New York Times Co. v. United States (1971)

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[Eugene Volokh] Is a Slur Just an Insult, or (in Context) a Slanderous Implication of Incompetence?

From Fagan v. Faulkner, decided Thursday by the Mississippi Supreme Court, in an opinion by Justice Josiah Coleman, joined by Justices James Maxwell, Dawn Beam, Robert Chamberlin, and Kenneth Griffis:

The issues before the Court arose from a dispute between [Judy] Faulkner and [Dr. Bryan] Fagan at North Mississippi Surgery Center in Tupelo, Mississippi. The two parties worked together for fourteen years. Fagan has an individual ownership interest in the center and has conducted orthopedic surgeries there since 2010. Faulkner works at the center as a clinical manager, a role she has held for approximately twenty years. As clinical manager, Faulkner is tasked with scheduling surgeries and assigning operating rooms for various surgeons affiliated with the center, including Fagan.

The matter in question occurred on February 16, 2016, when Fagan had two surgeries scheduled, first a knee reconstruction surgery and then a shoulder surgery that typically involves the use of a piece of equipment called a "Spider." Since that particular knee reconstruction surgery was estimated to take significantly longer than the shoulder surgery, and the shoulder surgery patient had already arrived, Fagan approached Faulkner, seeking to swap the surgeries for efficiency. Faulkner informed Fagan that the surgeries could be swapped but that he could not use the Spider because it was scheduled for another surgeon at that time.

Fagan did not wish to perform the surgery without the Spider, and he became upset when he realized that he would not be able to switch the surgeries and have the use of it. Fagan then repeatedly told Faulkner that she should be the one to inform the patient and the patient's family that they would have to wait until after the knee surgery. Faulkner refused, and Fagan demanded that she call her boss and discuss the matter with him. Importantly, Faulkner did not put on any evidence at trial that the persons present in the operating room later had any knowledge of the above-described events leading up to the subject utterance.

Evidently still upset with the situation, according to his own testimony, Fagan called Faulkner a "f*****g c**t" during a surgery later on in the day in the presence of four or five staff members. No witnesses other than Fagan himself testified regarding events in the operating room, and no witness, including Fagan, offered any other testimony quoting any other statements made by him in the operating room….

Faulkner's claim fails at the threshold because name-calling is simply not actionable in Mississippi, and Faulkner's proof fell short of a prima facie case of defamation per se. While Fagan voiced complaints about Faulkner's job performance on the morning in question, the record contains no evidence that he made statements rising to the level required to prove slander per se by imputing to Faulkner "a want of integrity or capacity … in the conduct of [her] profession, trade or business …." …

We hold that, as a matter of law, the vulgarity Fagan employed against Faulkner did not impute to her a want of professional capacity; it did not concern her ability to do her job…. [V]iewing Fagan's statement in a light most favorable to Faulkner, it can only be construed as declaring, in the most vulgar and offensive fashion, that he loathed, despised, or held Faulkner in contempt….

[The lower courts] erroneously relied on Fagan's intent behind making the statement to conclude that it referred to Faulkner's professional ability. "[W]hen a statement is reasonably capable of several meanings, some of which would be defamatory and some would not, the burden is on the plaintiff to prove that it was reasonably and properly understood by the person or persons to whom it was published as having the defamatory meaning." Thus, regardless of Fagan's intent behind the statement, none of the staff members who witnessed it testified….

[A witness at trial asserted that] Fagan expressed dissatisfaction with Faulkner's job performance "that day." As a matter of law, however, in order for Fagan's words to rise to the level of defamation per se, they must impute to Faulkner want of capacity in the conduct of her business…. [Even if] Fagan, along with the vulgarity, complained about Faulkner's performance of her job that morning, neither his complaint nor any reasonable inference that can be drawn from it amounts to a general disparagement of Faulkner's capacity to do her job scheduling surgeries….

"[D]efamatory words, to be libelous per se, must be of such a nature that the court can presume as a matter of law that they do tend to disgrace and degrade the person, or to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned and avoided…." … [T]he words must be susceptible of one meaning only, and that meaning must be opprobrious.

In other words, in order to be actionable as defamation per se on the ground chosen by Faulkner, i.e., a slander of her professional capacity, the words must convey outrageous disgrace or shame. As a matter of law, any statement by Fagan expressing dissatisfaction with Faulkner's job performance on one specific morning falls far short of the mark…. If, indeed, Fagan expressed unhappiness with how Faulkner scheduled the surgeries "that day," and, again, the record contains no evidence of what words he used to do so, an expression of unhappiness with a coworker's performance on one morning does not rise to the level of slander….

As atrocious as Fagan's use of the vulgarity was, as to the audience to which it was published, it amounted to name-calling—not defamation. Even if we draw the favorable inference from Fagan's answers during cross-examination that he expressed unhappiness with Fagan's performance of her duties that day, such expressed dissatisfaction falls far short of expressing "a want of integrity or capacity … in the conduct of [her] profession, trade or business …."

The dissenters (Chief Justice Michael Randolph, joined by Justices James Kitchens, Leslie King, and David Ishee) disagreed:

Dr. Fagan twice admitted making a statement that Judy was unable to perform her job. First, Dr. Fagan answered Judy's complaint as follows: "Defendant admits that he made comments concerning how Plaintiff performed her job and called her a name [('fucking cunt')]." Rule 11(d) of the Mississippi Rules of Civil Procedure prescribes: "Averments in a pleading to which a responsive pleading is required … are admitted when not denied in the responsive pleading."

Second, at trial, Dr. Fagan admitted making statements disparaging Judy's ability to perform her job:

[Q.] But you stated that you were unhappy with the way she was performing her job that day in front of multiple people. Would that be accurate?

[A.] Yes.

[Q.] And I'm not dwelling so much on the use of that [cunt] word right now so much as I am that you were unsatisfied with her ability to do her job that day and you're mad about it?

[A.] Correct.

[Q.] And that opinion was voiced to several people as we've covered, correct?

[A.] It was a statement that was said in the operating room in front of those people, yes.

All witnesses testified that Judy was able to perform her job. Even Dr. Fagan begrudgingly admitted she "does an okay job." The testimony provides record evidence showing that, when Dr. Fagan stated Judy was unable to perform her job, that statement was false. A false statement was intentionally communicated by Dr. Fagan to third parties that Judy was unable to perform her job. All of the elements of slander per se were met….

This Court must not be swayed by focusing only on the despicable vulgarity "fucking cunt." It was only part of what Dr. Fagan said in the operating room that day. Additionally, Judy never "alleg[ed] that the vulgarity constitute[d] an attack on her professional abilities," as the majority opines. A careful review of the record reveals extensive evidence that his outburst included more than just "fucking cunt."

Judy Faulkner did not deserve Dr. Fagan's untruthful tirade or to have her livelihood threatened. Our laws exist to protect against such damaging statements. Considering the evidence in the light most favorable to Judy and following the law compels affirming the verdict of the trial court.

For more, including the majority's response to the dissent, and some further discussion of the procedure in this case and the precedents, see here.

Mark Nolan Halbert and Brandi Elizabeth Soper represent Fagan.

The post Is a Slur Just an Insult, or (in Context) a Slanderous Implication of Incompetence? appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: November 18, 1811

11/18/1811: Justice Gabriel Duvall takes judicial oath. Professor David P. Currie said that an "impartial examination of Duvall's performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured."

Justice Gabriel Duvall

 

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[Eugene Volokh] Monday Open Thread

The post Monday Open Thread appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: November 17, 1880

11/17/1880: The United States and China sign treaty that protects Chinese laborers residing in the United States. This treaty was implicated in Yick Wo v. Hopkins (1886).

 

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[Josh Blackman] A Tribute to Gene Meyer

The 2024 Federalist Society National Lawyers Convention is a wrap. I already wrote about our change of venue from the Mayflower to the Washington Hilton. Yet, there is a far more monumental change looming on the horizon. For the past four decades, Gene Meyer has served as the President of the Society. Indeed, he was the first employee hired by Steve Calabresi, Lee Liberman Otis, and David McIntosh. Over that time, FedSoc has flourished in ways that were simply unimaginable in the early 1980s. The Society's influence on the law, the courts, the academy, and our society, is difficult to quantify. This will be the final national convention with Gene Meyer at the helm. Gene has announced that he plans to step down. The search for his successor is drawing to a close, as I understand.

At the end of the convention, after Steve Sachs's excellent Bork Lecture, a tribute was given to Gene Meyer by Steve Calabresi, Chris DeMuth, and Richard Epstein. The video of that tribute does not appear online, though I hope it is posted soon. All three tributes were so moving. The ballroom became quite emotional.

Steve compared Gene to Queen Elizabeth II. Both led their institutions for decades without making a mistake. Both adopted an approach to governance, and stuck with that plan through very difficult and trying times. Steve also explained that Gene demonstrated all of attributes of ancient virtue, and none of the seven sins. Despite being in the center of power and money for decades, Gene did not succumb to any scandals, did not try to enrich himself, and maintained true to his principles.

Richard spoke from his notes which he admitted were non-existent. Richard compared Gene to Ed Sullivan–a comparison that was probably lost on most people in the room. Sullivan was the host of a popular variety show for more than twenty years. He was always the host, but the guests were the main attraction. Gene, ever so humble, fits the bill. Richard also explained Gene's method. FedSoc would be, at bottom, a debating society. And in order to have a debating society, you need people willing to debate. Such debates requires inviting people you disagree with. But at the same time, the tent cannot be so large to become meaningless. FedSoc adheres to a few basic principles on which most conservative and libertarians can agree. But the group welcomes debates, both within and outside of the tent.

At the end of the ceremony, Gene was presented with a bust of James Madison. The standing ovation was profound. Gene touched every life in that room. After the event, I thanked Gene. Without him, I would not be where I am today.

This truly is an end of the era. And the selection of the next President will have a large impact on the future of the Society, likely for decades to come.

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[Eugene Volokh] Free Speech Unmuted: Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama

How does European free speech law differ from American free speech law, when it comes to "hate speech," blasphemy, and misinformation? Jane Bambauer and I welcome Jacob Mchangama, who is CEO of The Future of Free Speech; research professor of political science at Vanderbilt; the author of Free Speech: A History from Socrates to Social Media and other works on free speech; Senior Fellow at the Foundation for Individual Rights and Expression; and a trained Danish lawyer who is one of the leading experts in comparative free speech law.

You can also watch our past episodes:

Protests, Public Pressure Campaigns, Tort Law, and the First Amendment Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

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