In April, Don Imus infamously called the Rutgers Unversity women’s basketball team “nappy-headed hos.” After a week of controversy, criticism, and grovelling apologies, he was fired from his job by CBS radio. Imus threatened a lawsuit, and yesterday he settled with CBS. That should have been the end of the story. But of course, if it were, then how would the poor trial lawyers feed their families? Now that Imus’s settlement is final, he has money to burn. So, just a few hours after the settlement was announced, the first Rutgers player rushed to the courthouse to file suit against Imus and the other deep pockets:
“Imus lost four months of employment and gained $20 million and a new platform. But what about these young women? How does Imus’ big payday affect their self-esteem?” said Vaughn’s lawyer Richard Ancowitz.
The suit, which also named CBS, MSNBC and Imus sidekick Bernard McGuirk, did not ask for a dollar amount. There was no immediate comment from the defendants.
“The kind of sexist and bigoted attack these young women and Kia in particular suffered demands more than lip service,” Ancowitz said. “She wants the court to recognize that Imus slandered her.”
I haven’t seen a copy of the complaint yet, but it’s hard to imagine that it is anything other than utterly frivolous. Imus’s comments might have been nasty and uncalled for, but calling someone a “nappy headed ho” is not defamatory unless it is interpreted as an actual accusation that the person is a prostitute. No reasonable person could interpret it that way. That’s without even getting to the issue of lack of actual damages.
Update: AP provides the money quote from the complaint, and unless there’s a lot more they failed to mention, it’s exactly as frivolous as I expected:
The Vaughn suit claims that the comments were made in the context of a news or sports report and therefore Imus had certain standards to abide by but ignored them. The suit reprints the script from the “Imus in the Morning” show on which the comments were made.
“The … false, defamatory, sexually denigrating and slanderous statements and comments against the women athletes of said basketball team were heard, believed and understood by millions of listeners … as factual pronouncements concerning the character, chastity and reputation of the plaintiff,” the lawsuit says.
I’d tell you what I think of a lawyer that actually tries to make such a claim with a straight face, but I’m afraid he’d sue me for challenging his character, chastity, and reputation.
71 Comments
Yes, but since when have lawsuits of this sort been genuinely interpreted as a reasonable person might see it?
This is more about PR for the atty. and an attempt to get one last chance to drag Imus through the mud for the plaintiff. Were this case able to go forward, the implications would of course, be so wide that just about any potential litigant could pursue any media figure.
I think Matt Lauer, Brian Williams, Chrissy Matthews…, defame conservatives/classic liberals on a daily basis. But neither I, nor Newt, nor Pat, nor Rush, nor any of us…oh screw it…you guys know the drill. It’s not about the money, right?
Sticks and stones…
The kid must have really brittle bones.
I don’t do defamation work, so I’m no expert, but I vaguely recall that there’s a princple in defamation that if the statements can be given an innocent meaning, they must be given that meaning for purposes of the suit.
Given that “ho” has become pretty much a generic for “woman” these days, I’d say that qualifies as a pretty solid defense for the cadaverous Mr. Imus.
(BTW: plaintiff’s counsel was on CNN last night. He had an interesting twist on “it’s not the money”. Here he said it is about the money, but that the plaintiff wants to use the money to establish an institute for the study of hate speech. Nice bait ‘n’ switch. I wish someone had asked the lawyer if he’d donate his fee to this worthy cause.)
Maybe she can sue her attorney for malpractice for letting her file the suit.
She used to be known as one of the team members Imus made an ill-advised comment about, actually garnering respect and sympathy as a result.
Now she is known as someone that will bring a lawsuit of dubious merit. Cut off her nose to spite her face as it were.
Sticks and stones may break my bones, but words are worth some real dough!
Hey, this gives me a great idea. I think I’ll sue Overlawyered. You see, I am a trial lawyer – that is, I’m a litigator. Sometimes I represent the plaintiff (usually a business) and sometimes I represent the defendant (sometime an individual) . The point is that I find your continuous derogatory references to “trial lawyers” as offensive. You’ve damaged my self-esteem, and generally battered my pride. Moreover, your constant berating of lawyers has reduced the value of both my legal education and the my reputation and standing in the community. Yeah, it’s your fault and I want compensated! Don’t worry, I’ll send a courtesy copy of the complaint.
I wish someone had asked the lawyer if he’d donate his fee to this worthy cause.
On general principle, I don’t link to the website of attorneys who file these suits, but if you google his name, you’ll see that most of his work involves personal injury work related to automobile accidents. What that makes him is left as an exercise to the reader, but I don’t think that’s the type that generally gives away its fees to “worthy causes.”
David, I’m completely perplexed by your assertion that “no reasonable person” could interpret calling somone a “nappy headed ho” as being an assertion that she’s a prostitute.
I think that’s precisely, unambiguously what he called the members of this team — prostitutes.
What I think you’re saying is, No reasonable person would believe that the members of a college women’s basketball team are prostitutes. And if so, I don’t think that’s abundantly obvious, either.
Defamation law has never required that everyone, or even half, of the people hearing the defamatory statement credit it as being entirely true. That’s not the law, and never has been.
Well, he called them “hos,” not “prostitutes.” I’m not saying that the word “ho” can never be interpreted as prostitute; I’m saying that Imus’s statement can’t be interpreted as calling them prostitutes.
If you want to nitpick, I could rephrase my statement as “No reasonable person could interpret Imus’s statement as a factual assertion that the Rutgers team engaged in sex-for-money transactions.”
Hasn’t it been noted on this site before that there is a correlation between people “who don’t want to seek publicity” going ahead and filing suits that generate publicity? Only a relative few would even know Kia’s Vaughan’s name if not for this suit? Now the whole country knows her name…
Belkins,
Perhaps you are fortunate to have been more shielded that I. But I generally do not think people mean it literally when I hear that call others “douche bag”. Or when they use a term that sounds much like Brother Trucker.
As sad as it may be, a large part of modern music and street language uses “ho” as a synonym for woman. Thank you Eddie Murphy.
If Imust wins the suit, does the plaintiff have to pay his legal expenses?
Beldar.
I have to agree with David. While I can’t offer any testimony on Imus’ interpretation of the term hoe, contextually there is no indication that he was speculating on how these women made money. Given the rampant and general use of the term hoe referring to women the world (or at least nation) over, I’m highly inclined to believe he was not using it synonymously with prostitute. Perhps if in context there was something, even just a fragment of dialog, in which Imus speculated or asserted about their manner of employment, then I could see it.
I don’t know any other generally recognized meaning for the slang term “ho” other than prostitute. For your argument to be right, David, you’d have to show that it never means that, and yet you offer not a single alternative that it even might sometimes mean. What exactly was Imus calling these young women, if not “whores”?
There are some contexts in which someone may call another person a “whore” without meaning someone who exchanges sex for money. Along with “mouthpiece,” “shill,” and other terms, lawyers get called “whores” all the time. The context there, though, generally makes clear that we’re only figuratively selling ourselves. But where’s the context to indicate that Imus was being figurative at all? Are you arguing that because there is a disgusting segment of society that thinks it’s appropriate to call most or all women “prostitutes,” “whores,” and “hos,” that’s somehow okay? That it’s somehow inoffensive? That it’s not damaging to reputation?
I think a far more plausible interpretation — from the plain facial meaning of the language as buttressed by the context of the racial slur “nappy headed” — is that Imus was saying that these athletes indeed must be prostitutes precisely because they are young black women.
This case is literally right out of Prosser, David. It’s the kind of case in which the common law has historically deliberately excused plaintiffs from showing proof of injury on grounds that there’s no good or neutral way that someone can be called a criminal. Just to grab the first Texas case readily to hand (just because it follows the national common law), Bolling v. Baker, 671 S.W.2d 559, 569-70 (Tex. App. — San Antonio 1984) (case citations omitted):
Imus hit two of those four categories dead on, and one can argue that he got pretty close to the other two as well. So how is this not defamation per se?
Amateur college athletes would be, at most, limited purpose public figures with respect to subjects closely related to their sports. Allegations that they’re engaged in unrelated criminal activities couldn’t conceivably fall within that. So the plaintiff need not prove actual malice or knowledge (or recklessness with respect to) truth or falsity. But she probably can prove at least recklessness.
I’m writing this, mind you, from the perspective of a lawyer who’s defended a lot more defamation cases than filing them, and someone who’s won a Fifth Circuit defamation case for CBS News. I’m not giving you the “trial lawyer” (i.e., “plaintiff’s lawyer”) perspective — this is how Imus’ counsel should be looking at this case in assessing their risks.
I’d say the odds are at least 80% that the plaintiff will get summary judgment on liability based on defamation per se. If so, prospective jurors who refuse to accord the word “ho” its most obvious, literal meaning — i.e., who quarrel with the summary judgment and the caselaw of defamation per se on which it’ll be based — are likely to be excused for cause on grounds that they can’t follow the judge’s interpretation of the law. The judge will instruct the jury — probably during jury selection, then certainly again during the charge — that he’s already found there to have been a tort committed, and that their only task is to determine damages (and perhaps liability and damages issues regarding punitive damages, of which there’s a considerable risk). He’ll tell them that the number may not be zero, and that the law presumes at least some damages. And the big fight at trial will be the size of the damages, and as part of that, how much mitigation came from his apologies.
Last point, and I’m treading gently here, because as a pasty-white male Republican from Texas, I’m aware how cheap, easy, and sleazy it is to stir up false accusations of racism when there’s not a basis for it. I’m certainly not trying to slap that label on David or anyone else. But to anyone who is (a) white and (b) who also thinks it’s a no-brainer that this is a bogus lawsuit, and that it’s obviously an abuse:
Ask yourself privately and as honestly as you can: Did you have the same reaction when the Duke lacrosse players settled their defamation claim? And would you feel the same way if, instead of a largely black team of women athletes from New Jersey being called a “ho” on national radio, it was your daughter?
There are some contexts in which someone may call another person a “whore” without meaning someone who exchanges sex for money. Along with “mouthpiece,” “shill,” and other terms, lawyers get called “whores” all the time. The context there, though, generally makes clear that we’re only figuratively selling ourselves. But where’s the context to indicate that Imus was being figurative at all? Are you arguing that because there is a disgusting segment of society that thinks it’s appropriate to call most or all women “prostitutes,” “whores,” and “hos,” that’s somehow okay? That it’s somehow inoffensive? That it’s not damaging to reputation?
Okay? No. Offensive? Yes. But damaging to reputation? No, of course not. Calling them “hos” in the context in which he did would no more be seen as an actual claim that they engage in sex for money than calling someone a bastard is an actual factual assertion about the marital status of his parents, or the claim that Jerry Falwell had sex with his mother was an actual assertion of fact. “Ho” is an offensive word, but it’s just a general purpose insult for women.
Of course I’m aware of the category of defamation per se, but you can’t get summary judgment when the words are capable of a non-defamatory construction. (Indeed, some states bar any possibility of recovery if an innocent interpretation is possible.) So even if your interpretation is plausible — something I dispute — it has to go to a jury.
And as for your question about my hypothetical daughter, I would obviously be upset if Don Imus said that about her. I would be equally upset if Don Imus called her a bitch or an ethnic slur. It’s the fact of the insult, not the idea that someone would hear Imus and think, “Hmm. If Imus called her team ‘hos’, then she must be one, so she must have sex for money,” that would upset me.
How about “child molester,” David? Is that a general purpose insult?
Murderer?
Or is it just this one criminal/sexual impropriety factual category that’s a “general purpose insult”? Wouldn’t that make it unique in the world of defamation per se?
Is “ho” a more “general purpose insult” than “whore”?
Why do you think something that’s an insulting statement of literal fact would somehow become not a statement of fact because it’s insulting? Defamation law draws a distinction between fact and opinion. I have lots of cases saying opinions aren’t actionable. “Ugly” or “terrible basketball player” are insulting, but non-actionable. But if someone is or isn’t a prostitute, or a whore, or a “ho,” why isn’t that a matter of objective fact? Do you have a case saying factual descriptions that are insulting are therefore non-actionable?
If “ho” is a “general purpose insult,” it’s that only in the gangsta rap community, which Imus and most of his listeners are no more part of than I am.
My first reaction when I read Imus’ statement: “Racial bigotry.” Second reaction: “Has there been some sexual scandal involving these women athletes that I haven’t heard about? There must have been. This must be some converse of the Duke lacrosse scandal.” Otherwise, it was a completely gratuitous comment. Well, in fact, that’s what it turned out to be. But that wasn’t my first assumption by any means.
David, re summary judgment: see Mustang Athletic Corp. v. Monroe, 137 S.W.3d 336, 339-40 (Tex. App. — Beaumont 2004, no pet’n), in which the appellate court affirmed the trial court’s grant of summary judgment in favor of the plaintiffs on their claim of defamation per se. After a personal injury to young Monroe at Defendant Mustang’s roller skating rink, Mustang’s manager had told a “reporter from a local paper ‘Cameron was one of a group of boys who were actually trying to disassemble the Plexiglas and deface and vandalize Mustang’s property.'” Under your “capable of a non-defamatory construction” argument, that could have been characterized as something less than a claim of criminal mischief. And indeed, the dissenting judge wrote, “Given the context of the manager’s statement, I do not believe a reader would perceive the use of the word ‘vandalize’ as accusing the child of committing ‘criminal mischief,’ as the majority assumes.” But that position lost.
In a quick Westlaw search, I didn’t find any other Texas cases on point, and I certainly haven’t tried to research New Jersey law (assuming that’s what governs if that’s where Rutgers and Vaughn are). Do you have some other caselaw in mind to support your argument, though?
How about “child molester,” David? Is that a general purpose insult?
I don’t believe so, no. I don’t think I’ve ever heard that used in any context except as factual assertion that someone molests children.
Murderer?
Or is it just this one criminal/sexual impropriety factual category that’s a “general purpose insult”? Wouldn’t that make it unique in the world of defamation per se?
This one? No. Consider the term often shortened in the same way as the firm of Morrison & Foerster. Do you interpret it to mean a factual accusation that a person actually had sex with his mother?
Many — if not most — insults become divorced from their literal meanings; I already gave the example of “bastard.” “S.O.B.” would be another. (I am not claiming that either of these could be per se defamation; I am merely pointing out that these are insults not intended to be taken literally.) There are an awful lot of current insults that derive from the implication that the target is homosexual; few people who use them, however, actually think they’re calling someone gay.
You say that when you ‘read’ what Imus said, you thought of a sexual scandal. Well, I have no reason to disbelieve you, but note that Imus didn’t write it; he spoke it. If you go listen to the exchange between Imus and his sidekick — not just the three words in question (you can find it on Youtube) — I don’t think you would have thought that. I think you’d have thought he was attacking their appearance, in racial terms.
Bill, last point before I move on:
The suit was filed in the Bronx, where the plaintiff lives; Imus’s show is broadcast out of NY. So I assume NY law is likely to apply here. That having been said, I’m familiar with New Jersey law on point, and don’t feel like doing research now, so here:
Romaine v. Kallinger, 537 A.2d 284, 288-289. Whether a statement is defamatory is first a threshold question of law, evaluating the publication as a whole, in context, “according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence.” In cases where the statement is capable of being assigned more than one meaning, one of which is defamatory and another not, the question of whether its content is defamatory is one that must be resolved by the trier of fact.
Without reading the Texas case you cite, I can’t tell whether the difference between the majority and dissent was over whether the statement was capable of innocent construction, or over whether it should matter.
But I don’t see how “vandalize” has an innocent construction. I do think that “ho” does; even you concede that point, although you think it’s limited to the gangsta-rap community.
I don’t listen to Imus, but the incident was in the newspapers and blogs within hours. I’ve since heard recordings and watched the video. His “tattoos” and “nappy-headed” comments do refer to appearance; I still have no reason to think that “rough girls” or “ho’s” do, though.
Re bastard, SOB, and MF’r: Those aren’t criminal labels. Humans aren’t born, literally, from female dogs. And I’d agree with you that in general, their customary usage has migrated — over many decades — from their original literal meaning, using the understandings common to 99.98%+ of the population.
But I emphatically disagree — and suspect I could show through expert testimony very easily — that either “whore” or “ho” are now considered and understood to be generic insults, divorced from the literal meaning of prostitute. I’m not sure that’s even true within the gangsta rap/hiphop community! Rather, I think even within that community (and wow, this is definitely something I’d need experts to confirm), they still intend for “ho” to mean someone who literally is a prostitute. They use the term so much precisely because it still has a very specific meaning — its original one — and it is therefore a particularly degrading, abrasive, de-humanizing term.
The amazing thing is not that Ms. Vaughn sued, it’s that none of the other players have yet.
Surely, surely you will agree with me that if this case had been filed 50 years ago based on the same facts, it would be a lead-pipe winner.
But now come the respected conservative writers of Overlawyered to tell us: Nope, sorry, anyone trying to vindicate those exact same values that would have been recognized 50 years ago is guilty of litigation abuse, deserving of nothing but our ridicule. Our society is hopelessly coarse now; and that’s just too bad for you, ’cause we’re down wid dat. And even if some people heard this famous, powerful, influential national radio broadcaster/millionaire call you a “whore” — necessarily thereby calling you not just sexually immoral but a criminal — we say the law ought to pretend that means nothing.
David, thanks for the civil dialog. I think you’re badly wrong on the law, badly wrong on the morality, and badly wrong on the public policy. But we may just have to agree to disagree on all of that. Re the last statement in your original post, though: If I had the chance to take this case on a contingent fee, I’d do so in a New York minute, and I’d handle the case not just with a straight face, but with genuine zeal. I admit that that also aligns with my personal feelings, because I despise Don Imus and his ilk. My two daughters aren’t hypothetical; and to the extent I can dissuade someone else in a position of power from abusing it to call other fathers’ daughters “ho,” I’d be proud about it — with due respect, whether Overlawyered approves of my efforts or not.
I have two questions about this case.
First, why was Imus insulting the members of the basketball team anyway?
Second, why did Imus choose the particular words he did to express that insult?
http://www.nydailynews.com/sports/more_sports/2007/04/10/2007-04-10_no_suspending_a_mothers_anger.html
Kia’s mom is behind the lawsuit, according to this article…
Bill, I know I said I’d drop it, but one last point, and then you can have the last word, if you want: Put aside for a moment the legal issues, because that’s actually secondary to my complaint about the suit.
Was Kia Vaughn’s reputation actually harmed by his statement? Heck, let’s assume arguendo that for a few moments, large numbers of people thought, as you did, that there might be some sort of sexual scandal involving the Rutger’s team. Did her personal reputation suffer? Is her reputation suffering now? Did she suffer any tangible harm as a result? Lose a job? A friend? Anything? Does anybody believe now — or for more than a few hours after Imus spoke — that Vaughn was actually a prostitute?
I’m pretty sure that the answer to all the above questions is no. So this suit is not about compensation for actual financial harm; she suffered none. Nor is this suit about vindicating her reputation; nobody, including Imus, contends there’s any factual basis to believe she’s a prostitute.
So, I find it hard to come to any conclusion other than that this suit is about an attempt to transfer wealth from deep pockets to less-deep pockets, based upon the unfortunate fact that our legal system enables this to occur. With a large amount of wealth siphoned off for the PI attorney representing Vaughn.
Ah, but you propose another motive: to challenge the “hopelessly coarse” nature of our culture. Is our culture “hopelessly coarse”? Perhaps. (Imus’s conduct certainly gives you ammunition for that argument.) Do I think that our legal system is the appropriate venue for addressing this problem? No. And even if I thought that such were the goal of this suit, I don’t believe lawsuits like Vaughn’s will serve to accomplish the goal of restoring our culture.
Moreover, it’s hardly an unalloyed good to do so. You ask me what would have happened fifty years ago. Fifty years ago, Vaughn would have won easily on these facts. But that’s because fifty years ago, statements such as Imus’s could have severely and permanently damaged Vaughn. It’s a bad thing that people want to throw around coarse insults, of course — but it’s a good thing that our culture is not so severe that these insults cause serious harm.
My gosh, David, you’re as bad a night owl as I am. You know I’m still a huge fan of you, Ted, Walter et al., I hope? Always will be.
Anyway: If it’s defamation per se, then that’s at least $1 even if she introduces not a shred of proof.
Does she have hard economic damages? I dunno; I have no idea whether she’s searching for a job, for instance, or if she had WNBA or sportscasting/writing prospects that this hurt.
I’d bet dollars to donuts, though, that every future employer, boyfriend, boyfriend’s mom, potential friend — pretty much everyone she gets to know over the next decade or longer is going to have a moment when they are shocked, and they say, “Oh — wow — you mean you were on THAT Rutgers’ womens basketball team? Oh ….”
Now some of those people’s reaction will be, “Poor dear, I’m so sorry she had to go through that.”
But others will be, “Gee, what was that all about? Were they the ones who were stripping at that party? … no, no, that’s the Duke deal … Were they in that pit bull fighting? … no, that was that Vick guy … Were they really ever cleared? Gee, I can’t remember, but … I remember that Imus guy said something really nasty about them, and he got his job back and is still on the air …. Maybe ….”
Her and her teammates’ chance to just be college athletes — instead of people associated with some sort of national scandal — is gone. Poof. You can’t un-ring the bell. Reputation is bound up with privacy, and it’s bound up in some cases with innocence. Is that worthless? Or is that what Shakespeare wrote of in the “He who steals my purse” lines?
And if society is coarse, then people who want to stop that, or change that, or at least slow down the process, should use every means available to do so. Some people respond to reason. Some may respond to an earnest discussion of Kant and the Categorical Imperative, or Jesus and the Golden Rule. My hunch is that for Don Imus, though, it’s all about the Benjamins — and on that basis, he may well be BETTER OFF today than he was before any of this! Shame, decency, taste … he’s pretty much trading on the express basis of having shed all that, isn’t he?
I don’t know what her damages should be — I don’t have enough information, and ultimately, it’s a subjective determination. Maybe she’s greedy, but must we lurch to that conclusion without any evidence? I don’t know how pristine her reputation was before this, for that matter. So I couldn’t begin to give you a reasonable settlement value for the case, or hazard a guess as to what a “fair” verdict would be.
Y’all want, I think, to be anti-lawsuit abuse — not anti-plaintiff, at least not categorically and reflexively. Dear Lord, a reflexive reaction in this instance puts you in Imus’ camp, and if that doesn’t give you the shivers, what would?
Anyway, thanks again for your patience and good nature, David. This has been a fine discussion, and I appreciate your indulging me.
This tennis match seems much like a discussion of language and hermeneutics. Let’s suppose that Imus called them “Nappy Headed Bitches.” Given that bitch exclusively referenced (past tense) a female canine which was/is heating, and that none of Rutgers women resembled canines (DNA tests not required), would the arguments which support the suit pass muster?
Language evolves on a moment to moment basis. At some point, definitions transform to include additional meanings. Slang transforms even faster than non-slang. for example, observe how long it takes the OED to incorporate a term’s additional meaning vs. how long a set of 20-somethings can alter a term, ho for instance. As posted earlier, Eddie Murphy certainly sped up the evolution of such term. Imus took this term, colloquialism or auxilliary term, and swiftly and unintentionally tossed his career down the tubes.
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 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):
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:
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):
Dillon v. City of New York, 261 A.D.2d. 34, 38, 704 N.Y.S.2d 1, 5 (N.Y. App. 1999):
DeAngelis v. Hill, 847 A.2d 1261, 1268 (N.J. 2004):
Lowinger v. Jacques, 204 A.2d 175, 612 N.Y.S.2d 18 (N.Y. App. 1994):
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)):
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).
This discussion, as it has unfolded, would cause most sane laymen to trot out the old shibboleth: “First kill all the lawyers.”
Imus tells jokes for a living. I’m no fan, but I do have the sense to know this.
The verbal gymnastics of lawyers who try to twist such a simple fact into a money making bonanza… well, that’s what makes the rest of us hate lawyers.
This woman’s lawsuit would tend to indicate that Imus’ joke wasn’t so far fetched.
I don’t know any other generally recognized meaning for the slang term “ho” other than prostitute.
Um, what rock did YOU crawl out from under? Where have you ben for the last, I don’t know, decade, at least?
I activly and vigorously avoid rap, both for content and syle, and othr elements of “street” culture, and even *I* have known that “ho” is a generic term for woman (albeit an insulting one) that does not necessarily carry an accusation of prostitution. It’s been that way for some double-digit numbr of years now.
I’m not trying to be rude, but trying to parse modern English with a dictionary from the 1200s wouldn’t work; trying to make a complaint about the usage of a word that you clearly don’t understand is about as bad.
Beldar: Your argument makes no sense. The nature of the lawsuit is that he accused them of being prostitutes. All of the harms you describe have nothing to do with that. Had he called them a nearly identical phrase that didn’t include the word “ho”, the harms you claim would all have been precisely the same but there would have been no basis for a defamation suit.
The point is, none of the harms you claim this lawsuit tries to address have anything whatsoever to do with defamation. The claim that the defamation caused harm is completely and utterly meritless.
Beldar doesn’t get, never will.
First, Imus was referring to the girls ‘appearance’ and nothing more.
Second, because Imus used the word ‘ho’ along with the qualifier ‘nappy-headed’, he was definitely using a hip-hop colloquialism, and in hip-hop,the term ‘ho’ is a very general term for women.
I am a black, female attorney, born and bred in NYC. I am 50 years old. I have never known the word “ho” to mean anything other than a whore or a prostitute, despite Eddie Murphy and hip hop. I agree with Beldar, it is slander per se. I applaud this young lady’s law suit. I find nothing greedy or trivial in it. I heard what Imus said. At the time I thought he must have lost his mind. I feel no sorrow for him. His business is about the spoken word. Given his reputation, he should have known the limits. I find it telling that mostly men, and a majority of white men find something wrong in this member of the Rutger’s women’s basketball team suing. I guess that must mean I am playing the race and the feminist card?
This is classic Hustler v. Falwell. Nobody could reasonably believe, as stated above, that Imus was asserting that they were exchanging money for sex. The first amendment challenge here is virtually insurmountable, as they are limited public purpose figures knowingly allowing themselves to be broadcast on national television while playing basketball. I’m appalled that anyone would do Westlaw research attempting to bolster this frivolous claim.
I have never known the word “ho” to mean anything other than a whore or a prostitute, despite Eddie Murphy and hip hop.
=============
You do realize you contradicted yourself here?
Alright Wallace,
‘never known the word “ho” to mean anyhting other than a whore and a prostitute.’ A whore being a synonym for prostitute, ‘despite Eddie Murphy and hip hop’ There is no contradiction if you ask women between the ages of 25-50, particularly if you ask black women in that age group. Men are only half of the world. Their perception of the world including the use of language is not the entire world. Women may be selected to be triers of fact in a courtroom and have a different understanding of the word
“ho!”
Cysinger
Cysinger.
I think it’s well established that there is in fact a class of people who a)have never been exposed to the notion that ho could mean something other than prostitute, b)find this suit with merit, c)applaud the plaintiff for alleged courage. I think the majority of readership here, given that the very purpose of this blog is ultimately to promote tort reform, argue from personal conviction that whatever card or cards one chooses to play, the act of Imus calling said plaintiff a N-H-H does not at all come close to the line, even if such line is hardly well defined; it doesn’t even touch the gray on the supposed line’s apron. Incidentally, I would venture to say Imus is not a popular talker among this audience. But alas, this is about talking, not the talker. And, while indeed a class of people will always stand up and claim offense, be it Stern, Limbaugh, Imus, Savage, etc…, I think it’s quite obvious that the plaintiff has an ax to grind and is merely unnecessarily burdening the legal system with her woes. I’m not a gambling man but if I were, I would bet that were Imus to say something such as “Those are some curly haired women of the evening…I bet they command a high price for an evening of lust…if you know what I mean..wink..wink” this blog’s audience & hecklers would be singing a different tune. With that, I will now grab my ankles and await the counter-assault.
David W.: That’s an impressive list of cases. Collectively they establish that the New York courts are very slack when it comes to protecting people against insults, profanity, and racial abuse.
I count exactly one, however — the last one in your list — that has anything to do with allegations that someone is a criminal. And that appears to be from a New York “Supreme” Court, which (in a system of court nomenclature that always confuses the hell out of us non-NY practitioners) is actually a trial court, not an appellate court. (Appellate courts in NY being “App. Div.” or “Ct. App.”) My recollection from a summer spent as a law clerk for a Manhanttan firm twenty-something years ago is that trial court precedents are considered instructive but non-binding — certainly non-binding on real appellate courts, and not even binding on other trial courts. Am I incorrect in that?
You obviously have access to the New York precedents; I’m unwilling to run up the extra Westlaw charges that I would incur to cross-check your research. But tell us, as you’d be obliged to do were this a court filing instead of a blog comment: What cases did you find and choose to omit from your list because they deal with allegedly defamatory statements that someone is a criminal? For I find it impossible to believe that the State of New York, contrary to the general rule as it appears in sources like Prosser, permits people to call others criminals without consequence.
When you don’t have the facts, pound the law. When you don’t have the law, pound the facts. When you don’t have the facts or the law, cite some law that looks sorta close, then pound the table.
With respect, David W., you’ve done a fine job of citing some law that looks sorta close, and then pounding the table. Imus’ lawyers will do the same.
Deoxy: The particular rock that I crawl in and out from under is in Houston, the fourth-largest city in the country. Rap and hiphop have made it here. There may be some portion of the population here, or in New York, or in Peoria, in whose everyday usage “ho” means something generically, vaguely, undefinably bad. During the Civil War, “Yankee” had the same insulting connotations south of the Mason-Dixon line, for that matter.
Nevertheless, throughout the United States (in all but a few counties in Nevada), prostitution is a crime, and calling someone a “whore” is an accusation that someone is a criminal. Imus’ defense will certainly include testimony that some folks didn’t believe him, which may go to the amount of damages. Ms. Vaughn’s case will certainly include people, almost certainly including linguists and public-survey experts (if her lawyer’s on the ball), who will say that they understand “ho” to mean “prostitute.” And that too will go to damages.
The reason all this testimony will go to damages is because calling someone a criminal is defamation per se, and that excuses the plaintiff from having to prove a liability case. That has been the law for decades and decades.
I, for one, doubt that appellate courts are going to be eager to change the law in deference to rap/hiphop music cultural values. In fact, I desperately hope that will not be the case, because those values are shameful and worthy of societal condemnation. One fashion in which such societal condemnations are expressed is through jury verdicts. We’ll see what this one says.
Wallace: The entire point of “limited purpose public figure” is to make someone a N.Y. Times v. Sullivan public figure for the purposes of their particular public exposure. If Imus’ comment had had something to do with Ms. Vaughn’s basketball playing, then arguably — and it would be a huge stretch, given that this was nonprofessional college basketball, in which the players have no direct or even indirect say in their games’ media coverage — she might be a limited purpose public figure. Maybe, then, if Imus had said she was in a criminal conspiracy to rig basketball games, he would have had a First Amendment public figure defense. Even then, I suspect Ms. Vaughn could still overcome that defense by showing that he acted intentionally or in reckless disregard of the truth.
But the defamatory comment had nothing to do with her basketball playing. She’s not a “limited purpose public figure” with respect to any and all criminal acts she might have committed off the court that have no connection with her status as a player.
I expect Imus’ lawyers will advance your argument. They’ll lose on it, because it’s wrong.
I’m still waiting for someone, anyone, to respond to my comparison of Ms. Vaughn’s situation to those of the Duke lacrosse team players who were accused of being criminals (among those crimes, engaging in prostitution, but as clients) by members of the Duke faculty and administration. Duke paid a confidential amount to settle those players’ defamation claims very soon after their lawsuits were filed, or perhaps even before.
Are all of you who are outraged that Ms. Vaughn wants to protect her name equally as outraged at the Duke lacrosse players? Is any of you?
Kudos to Kia Vaughn.This
lawsuit is about accountability on the part of Don Imus. He has a
history of making racist
and sexist remarks.
He is not above being
brought to task for what he said. To put the language that he used on the hip hop community is a cop out to duck responsibility for what he said.I am sure that if someone said something derogatory about their daughter,mother, wife or girlfriend they would not like it also. As a 49 year old black male with children of my own, I am tired of this type of language used through out the entertainment industry. No other ethnic community is subjected to these type of insults for the purpose of profit and entertainment. It seems the only way to stop this is to hit where it hurts, in the pocketbook.
OK, Bill, here goes:
There is a huge difference between (1) a single shock jock making a throwaway remark about a team, and not a specific individual, and (2) the much more extensive and orchestrated effort by a large number of college professors and administrators to label individual students as criminals.
If there is no difference between the two, you ought to have no preference for whether Imus referred to you as a ‘nappy headed ho’ or whether you were subjected to what the Duke students went through. I don’t know about you, but I know which I’d prefer to suffer through.
On a tangent, let me introduce (what I think is) a complicating factor to your slam dunk. Taken in full, the Imus transcript shows that he was referring to the Rutgers’ players ‘appearance’. He wasn’t making a factual assertion that they ‘were’ hos, he was saying they ‘looked’ like ‘nappy haired hos’. While it may not be nice to say someone looks like a whore, I don’t believe it rises to the level necessary to sustain a lawsuit. Please correct me if I’m wrong, as, with teenage daughters, I need to know if I’m going to be on thin ice (legally) if I tell them they have to change before they go out, because I’m not letting them go out looking like, well, you know.
Beldar,
Where to begin?
In the Duke Lacresse case, the players were named directly by many of the Duke faculty against the code of conduct of the school.
In the Rutgers case, no one was named directly.
In the case of the Duke Lacresse team, there were were demonstrable effects to the player’s reputations including not being able to attend classed, scorn, ridicule, etc.
In the case of the Ms Vaughn, no such effects can be seen. In fact, the exact opposite was demonstrated. Many people had great sympathy for the Rutgers players.
Your assertion that Ms Vaughn was called a “ho” and therefore accused of prostitution is laughable, and shows a distinct lack of knowledge of today’s urban language and slang.
Furthermore, the Duke lacrosse teamwas never charged with prostitution or even “prostitution as clients.” Your premise in comparing the Duke case and the Rutgers case is faulty at best.
Duke University made statements against the players that were part of their official position.
Imus’ statements were obviously satire or at least designed to illicit a laugh.
I can keep going if you wish. The two involve atheletes from major universities. After that, any comparrison is misplaced.
prostitution is a crime, and calling someone a “whore” is an accusation that someone is a criminal.
Yay, put it in bold! That really makes a refutation to a point absolutely no one is making or defending relevant to th discussion.
NO ONE is claiming that making a serious allegation of prostitution (a crime, as you have repeatedly pointed out, with no on contradicting you) without evidence is a reasonable grounds for a libel/slander claim.
What IS at issue is whether he made such an accusation.
He did not. Not remotely. A throw-away insult regarding appearance, using a word that SOME people believe to mean “prostitute” (despite regular usage otherwise) does not register on the same scale as repeated, seriously-intentioned claims of a crime and call for their arrest and conviction (or incite extra-judicial means). To even make the comparison is invidious.
To take this even further, the Duke players actually had substantial monetary damages incurred as a result of that big mess. What have the expenses of this been to the team members in question? A big, fat goose-egg. Yah, the Duke case mirrors this one SO WELL…
And no, race has absolutely nothing to do with it. I would be just as outraged (and have been when warranted) by such a ridiculous suit by a white person, and I would have been just as outraged (and have been when warranted) at the railroading of innocent people when those people were black (Tulia, Texas, being one such relatively recent example).
Okay, I know I said I’d let you have the last word, Beldar, but one more point:
You keep throwing around the word “criminal” as though it were a trump card, pointing out that accusations of criminality constitute classic defamation per se. But defamation per se eliminates the requirement that the plaintiff show damages; it doesn’t relieve the plaintiff of the burden of establishing the other elements of defamation.
You yourself admit that, when you concede that calling a lawyer a “whore” would not be defamation, because interpreted in context, the insult would not be deemed an actual accusation that a criminal law was violated. And no matter how many “linguists” the lawyer trotted out to show that “whore” means “prostitute”, it wouldn’t convert the insult into defamation. That’s what we face here: to prevail, Kia Vaughn needs to show, not that “ho” can mean “prostitute” — an issue about which there’s little dispute — but that reasonable listeners, hearing the words in context, would interpret the words that way.
Heck, re-reading the transcript, it’s not even clear to me she can satisfy the “of and concerning” element.
As for the comparison to Duke: the Duke case involved factual charges, not of “prostitution” in any form, but of rape; that would be interpreted as a criminal accusation in any context, let alone in the context of a situation where they actually were being tried for rape. (Plus, the players suffered actual economic and reputational damages.) And I don’t think that anybody who accused them of rape would make the claim that they weren’t intending it to be taken literally. Not to mention that the speakers were professors at an elite university, not radio shock jockeys.
David: Being a shock jockey doesn’t make one immune from liability for defamation, nor does being a professor at an elite institution make one more liable for it. The significant difference between the Duke case and this one is one of scale, not of principle, mainly because those young men were under accusation longer, and in addition to the university personnel, their accusers included an unethical district attorney. You surely are not suggesting that the difference is because they were white college athletes, are you?
You continue to insist that Ms. Vaughn wasn’t damaged. With due respect, David, there’s nothing but your stubborn assumptions to support that. Damages for defamation can include, for example, humiliation. Do you suggest she was not humiliated? Anyone who says that is as insensitive as Imus. And are you sure she hasn’t, for example, been turned down on a job application as a result of this furor?
Finally, defamation per se DOES INDEED excuse the plaintiff BOTH from proving that the statement was defamatory (injurious) AND from having to show at least some damage to his/her reputation. The plaintiff still has to prove that the statement was published (i.e., made to others) and that it’s false. An allegation that someone’s a criminal is conclusively presumed to be injurious to his reputation, and to result in some damages. Out of laziness, I’m going to cite you to Wikipedia for this, but it’s indeed the law (emphasis mine):
Or here’s another Texas case to the same effect, Fox v. Parker, 98 S.W.3d 713, 726 (Tex. App. — Waco 2003, pet’n denied)(citations omitted, emphasis added):
I continue to be perplexed as to how you can possibly fail to see that this is, quite literally, a textbook case — right out of Prosser on Torts. You admitted earlier in this discussion that 50 years ago, this case would have been a clear winner. That segments of our society have become more vulgar in the interim doesn’t change the law, David.
gitarcarver:
As long as the target of the defamatory statement can be determined, it’s not necessary that names have been named. Anyone could determine the names of the varsity womens basketball team members from Rutgers in about 20 seconds on Google. And everyone whose opinion Ms. Vaughn especially cares about are likely to have known she was on the team. To the extent, if at all, Imus’ failure to name individual names is relevant, it goes to damages, not liability. If I publish on my blog tomorrow a statement that “The bloggers who produce Overlawyered all are engaged in a conspiracy to import and distribute cocaine,” believe me, they’d be able to sue me for defamation (libel) per se.
A great many people also had sympathy for the Duke players — more now than at first. That, too, goes to damages. Imus’ lawyers will argue that his apology reduced the damages, and there’s no doubt that it did. The question for the jury will be, by how much?
Imus’ subjective intent may become relevant for purposes of his punitive damages liability. Otherwise, it’s not. What he intended isn’t the issue for purposes of liability and actual damages for defamation.
Steve Sturm, my friend:
That Imus made the allegations about all the players on the team makes his offense worse than if he’d made it about a single one.
The reason I raised the Duke case is not because I think Ms. Vaughn’s damages are necessarily comparable in size to the Duke players’, but because the principles involved in Duke’s potential liability are exactly the same: defamation per se by publishing statements that college athletes were criminals.
Finally: Imus may wish he had said, “They look like nappy-headed ho’s,” but that’s not what he did say. Defenses that require you to invent hypothetical “other things he might have said and meant” aren’t likely to carry much weight in court. And in your conversations with your daughters, I hope you’ll be careful to say they look like something you wish they wouldn’t — not that they are — because they’re likely to take you at your word, too.
Deoxy:
I use boldface from time to time with the intention of helping readers who are skimming locate my most significant points. The points stand or fall on their own.
The reason I keep using the word “criminal” is because that’s what makes the claim defamation per se, and what makes it different, for example, from the many cases cited by David W.
I have very carefully avoided accusing any commenters here of being racists, and I am not doing so now. However, there are racial aspects to this case that are simply inevitable and unavoidable. The defamatory statement was coupled with an egregiously racist one, and contrary to the suggestion above by z0l0ft, “nappy-headed” has a ugly history as a racist slur that long predates the hiphop/rap era — one going back to slave days, before this country was even founded. Robert Campbell’s comment above resonates with me; if I try to imagine myself as a black father reacting to my daughter being called a “ho,” my concerns would be amplified precisely because there is still latent (and sometimes, as with Imus, patent) racism in our society such that, frankly and sadly, substantial numbers of people (of any race) may be more willing to believe that a young black woman is a prostitute than if she were of a different race. Stated another way: Being black made Ms. Vaughn an easier target for Imus, and it may mean that she sustained more damages from the defamatory remark than a player of another race might have sustained. That’s not asking for special privileges for her on account of her race; that’s simply acknowledging that when it comes to reputations (and damage to them), we don’t yet live in a colorblind society, as much as we might aspire to someday.
Beldar:
Do you seriously doubt that the alleged harms would have been any different had Imus said they “look like a bunch of nappy headed ho’s”? Can you honestly with a straight face argue that had he said that, which is clearly not defamatory, they would not have suffered precisely the same injuries?
It is totally obvious to everyone but you that the whole criminal conduct / defamatory per se is a sideshow. It’s a perfect example of an abuse of the legal system.
This has *NOTHING* to do with accusations of criminal conduct or defamation per se, and her attempts to pretend it is is a textbook example of lawsuit abuse.
Until someone made a similar comment on my own blog, I forgot that I hadn’t responded to Wallace’s argument above that Imus’ comment is protected under Hustler Magazine v. Flynt. It’s not, and I’ll reprint here what I wrote on my blog to explain why:
————-
Ms. Vaughn’s claim and Hustler Magazine v. Falwell, 485 U.S. 46 (1988), are not even remotely similar to one another.
Falwell was a public figure under N.Y. Times v. Sullivan, meaning that to prevail on his defamation claim, he had to show actual malice (i.e., “knowledge that the statement was false or [made] with reckless disregard as to whether or not it was true”). The jury found that he had not met that standard, and so ruled against him on his defamation claim. However, the jury ruled in Falwell’s favor on a different claim, “intentional infliction of emotional distress.”
The Supreme Court held:
Ms. Vaughn isn’t a public figure, nor even a “limited purpose public figure” (as I explained in this comment over on Overlawyered). As such, Imus can have no defense based on the First Amendment. She need not allege or prove actual malice to recover on her defamation claim (although I suspect she probably could meet that hurdle if the law did require it of her). And at least according to press accounts, she’s not suing for intentional infliction of emotional distress, either.
Additionally, there was no allegation in the Hustler piece that Falwell was a criminal. Rather, it took the form of a mock interview with Falwell, patterned after a recent series of Campari Liqueur “first times” advertisements, in which Falwell purportedly describes a “drunken incestuous rendezvous with his mother in an outhouse.” A footnote and the issue’s cover page confirmed that the ad was a fictional parody. Nowhere does the SCOTUS opinion suggest that Falwell had pleaded a defamation per se claim based on allegations of sexual impropriety; that doesn’t surprise me, because in the mid-1980s, most states’ then-existing caselaw included a defamation per se category for statements that a woman was unchaste, but nothing with respect to males. It’s only been fairly recently that courts have begun referring to “sexual improprieties” on behalf of either sex as the last category of per se defamatory statements.
And one last thing: Some legal pundits and scholars (e.g., here) have suggested that there should be a “parody/satire” defense to defamation because of First Amendment concerns. They argue by analogy from Campbell v. Acuff-Rose Music Inc. But Campbell is a copyright case; the issue was “fair use,” not actual malice; and Justice Souter’s ruling wasn’t based on the First Amendment. Even if some later court should invent such a defense for defamation cases, surely it could only apply in cases involving public figures. In other words, being funny, or unsuccessfully trying to be funny, ought not give anyone a license to call private persons a criminal or otherwise defame their characters.