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, Beldar, “humiliation” can be damages, but it has to be humiliation stemming from defamation, not humiliation in the abstract. After all, if Imus had explicitly said, “Those Rutgers players are ugly as dogs,” she’d have suffered humiliation, but it would not be actionable. That’s what I mean by not damaged; I’m not disputing that she suffered emotional distress, but only that it didn’t arise from the perceived truth of Imus’s statement, but merely from the fact that he insulted her.
As for your cite to Prosser (or Wikipedia (!)), you’re simply stating broad propositions, while failing to address the point I raised. If it were true that calling someone a whore = accusation of a crime = defamation per se = defamation as a matter of law, then calling a lawyer a whore would also be defamatory. But you yourself admit this isn’t valid. Why? Because even though a computer consulting a dictionary would conclude that the lawyer had broken the law, reasonable people would not interpret the statement as an accusation that the lawyer has committed a crime. Ditto here.
Look at Hustler v. Falwell. If your overly-simplified version of defamation law were valid, he would have won on defamation in the lower court. But he didn’t. Quoting from Rehnquist’s opinion:
Note that it went to the jury. If you were right, then Hustler would have defamed him as a matter of law. But you’re not right; the jury still had to decide whether it could “reasonably be understood as describing actual facts about” the plaintiff. Sometimes it’s unambiguous, and it doesn’t go to a jury. That is in no way the case here.
Incidentally, this is not merely my idiosyncratic interpretation of the law, Bill. Here’s a law prof at the U of Colorado providing the same analysis.
David, you’re right that Prof. Moss makes the same arguments that you do. He makes them without addressing the “defamation per se” point at all, however, and without any more authority than you’ve provided.
As I’m writing this, I still have in your approval queue a comment that, coincidentally, explains the several reasons why Hustler Magazine v. Falwell doesn’t apply, and why the fact that Imus was trying to be funny doesn’t give him an (as yet non-existent in the defamation caselaw) parody/satire defense.
When a court looks, as a threshold matter, to see whether a statement is defamatory, it should indeed look at the context in which the statement occurred. In Hustler Magazine, that context included a footnote and a reference in the issue’s table of context that both said the piece was a fictional parody.
Likewise, if Imus had immediately said, “Oh, I’m just joking, I don’t really mean they’re prostitutes,” the context might demonstrate that he was speaking figuratively, exaggerating, and making a false statement of fact for purposes of humor. He didn’t. He was indeed trying to be funny. But there’s no general “trying to be funny” defense in defamation law.
In addition to trying to be funny, Imus’ shows also sometimes include serious commentary about public issues — typically with sarcasm and snark on top of the facts that he’s pointing out. Unless he says, “I don’t mean this literally,” then when he makes a statement of fact that could be literally true, why should anyone assume he’s intending it as anything other than a statement of fact?
David Schwartz: Yes, I “seriously doubt that the alleged harms would have been any different had Imus said they ‘look like a bunch of nappy headed ho’s.'” That’s an insult, but it’s not a crime to look like a whore. It is a crime to be a whore (or more precisely, to engage in prostitution). And that is very literally what Imus said about Ms. Vaughn.
David: If tomorrow, I post on my blog, “Jane Doe is a whore,” then I will have committed libel per se.
If I post on my blog, “Plaintiffs’ personal injury attorney Jane Doe is a whore whose law practice depends on people paying nuisance-value settlements to end frivolous lawsuits,” then I haven’t. The context makes clear that I’m speaking metaphorically.
You seem to think that in the context of Don Imus’ radio program, it’s inconceivable that he might very literally, very intentionally call someone a prostitute. Where do you get that impression? That’s exactly the kind of thing that Imus is likely to do if, for example, he’s got pictures of someone soliciting customers in front of a msssage parlor, or a source feeding him that kind of information.
He’d just said, as a statement of fact, that some of the Rutgers players have tattoos. In fact, they do. There’s no reason to doubt that he made that statement as a statement of fact.
He followed that by saying they were “ho’s.” Why are we supposed to believe he was joking about “ho’s,” when he wasn’t joking about tattoos?
Prof. Moss’ practice and teaching specialty, by the way, is employment law — indeed pertinent to Imus’ contract claims against CBS, but which may explain why he failed to discuss defamation per se. His research interests supposedly include constitutional law, though, so perhaps he could confirm for us that Ms. Vaughn is likely neither a public figure nor, for purposes of this defamatory comment, a limited purposes public figure.
My sentence above —
— should have read:
David, as much fun as it is trying to respond in an organized fashion to you and to the various outraged commenters here who are defending Imus (which still boggles my mind), I’m obviously taking up more than my share of your bandwidth, making typos, and repeating myself. I think I’ll forbear from further comments here. If someone else wants to continue the debate with me in particular, I’ll continue to follow the comments on my cross-post over on my own blog.
Thanks yet again for your indulgence.
I lied. One more comment that I can’t resist responding to, just ’cause it’s kinda personal, and because we’ve had a law professor weigh in (indirectly). David Schwartz wrote:
Okay, everyone reading this who’s a licensed lawyer raise your hand.
Now everyone who’s a lawyer who’s handled defamation cases, keep your hands up.
Now everyone who’s represented defendants in defamation cases, keep your hands up.
Now everyone who’s successfully represented a major TV network in a defamation per se case — in which a national news broadcast made a series of allegations that someone was a criminal — in any federal court of appeals, keep your hand up.
My hand is still up. Anyone else?
Beldar, the public figure issue — I agree with you that she isn’t — affects the mens rea standard, not the issue of whether the statement is defamatory. And, incidentally, incest is a crime, so in fact Hustler did “accuse” him of being a criminal, if the statement is taken literally.
I don’t know whether that’s conceivable, but I am not making a general statement about Don Imus’ radio program; I am making a specific statement about the context in which the words were stated. Nobody listening to the entire exchange between Imus and his cohost would have interpreted that as a statement of fact.
It’s not that humor or parody is a defense in and of itself; it’s that when a statement is understood to be a parody, it is understood not to be a statement of fact. And if it is understood by listeners not to be a statement of fact, it cannot be defamatory no matter how offensive it is or how many categories of defamation per se it would otherwise qualify under.
Although you keep pounding on some legal quotes, you seem to agree that we need to look at context. So the dispute here seems to come down to the fact that you think a reasonable person, looking at it in context, could have interpreted it as an accusation of a crime, whereas I, and Prof. Moss, do not.
Beldar,
With all due respect, you keep making points for the side that you disagree with.
As long as the target of the defamatory statement can be determined, it’s not necessary that names have been named.
Agreed. As long as the speaker was targeting or speaking about the entire group. Imus’ statement was “they have some nappy headed ho’s on that team.” To which the producer replied “yeah, there are some tough looking women on that team.”
Are you trying to say that “some” means “all” and therefore Imus and the producer’s statements meant the entire team when clearly they did not?
Are you really trying to say that if I were to say “some Houston lawyers are crooks” that I have defamed you?
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.
Thank you for making my point. Your statement would incorporate all of the people running Overlawyered. Imus’ statement did not incorporate the entire team.
One thing of note on the “pubic figure” issue. Back in 1978, the grades of the University of Maryland basketball team were published by the school newspaper, the “Diamondback.” The players sued based on a breech of privacy. The court ruled that the players were “public figures” and the publication of their grades was not a breech of their privacy. It seems clear that playing on a basketball team at the national level, especially when you have done interviews promoting the team, putting out a media guide, etc means that the players are public figures.
gitarcarver, you’ve drawn me back in, just because rebutting you on this is a slam dunk. The actual quote from Imus is: “That’s some nappy-headed ho’s right there, I’m gonna tell ya that. Man, that’s some — whew!” Not “there are some.” He was indeed calling the whole Rutgers team “ho’s.”
It was also Imus who made the “rough girls” remark, not his producer. But it was someone else (perhaps the producer, but his voice and accent are very distinguishable from Imus’) who first called them “ho’s.”
I’m not familiar with the Maryland case you’ve cited, but the way you describe it, it’s not a defamation case. Perhaps you mean “invasion of privacy,” which is a different tort altogether from defamation.
(And you probably mean “breach” instead of “breech,” but that’s okay, I make lots of homonymic typos myself; one reason I’m trying to stop commenting here and write on my own blog is so I can correct my typos!)
I’ll simply note that my Law Dictionary defines “hate crime” as “a crime motivated by ANIMUS” which – if you simply insert one little space – becomes “a crime motivated by an Imus.” Coincidence?
the various outraged commenters here who are defending Imus (which still boggles my mind)
I (and most others here) are not “defending Imus” in any reasonable sense – that is, what he did was nasty, and I disapprove (as most others have been quick to point out as well).
But I “disapprove” of many things which are not actionable!
Next: Yay. You’ve got more paper than then me saying you’re a relevant guy. You’re still utterly walking around the central point. You’ve ASSUMED that he called her a criminal; IF he made a serious accusation of criminality against her, well, yay, you’re more qualified than I am to say so. Yay for you.
The whole point, and the reason that most of th commenters on here just can’t seem to agree with your vastly superior self, is that, quite simply, he didn’t make an accusation of criminality against her.
This has been pointed out to you repeatedly; the rest of your points are essentially irrelevant, as there’s nowhere to start from.
I understand that you disagree with the majority here, which is fine and your right, but please don’t go arguing so many things which depend on a basic assumption that you simply can’t convince us of. Go back to my mention of a dictionary from the 1200s, and you’ll se why you CAN’T convince us.
As to the case… if there’s no settlement, I will go on the record saying that she should lose, and I even have a fairly high confidence that she would, if it went to trial.
Of course, I have a higher expectation that there will simply be a nuisance settlement, instead, so it’s really a moot point.
The actual quote from Imus is: “That’s some nappy-headed ho’s right there, I’m gonna tell ya that. Man, that’s some — whew!” Not “there are some.” He was indeed calling the whole Rutgers team “ho’s.”
When you listen to the whole quote, you can tell that he is not talking about the entire Rutger’s team – not unless you are willing to say that all of the women have tattoos which is the comment that precedes his “nappy headed ho’s” comment. Once again, you continue to provide people with the ammunition to show the fallacy of your position.
Beldar: You are missing my point. What I am saying is that it makes no difference whether people took Imus literally or not. The harms you are talking about would have been precisely the same regardless of how the statement was interpreted.
That is, the damages you talk about were most definitely *NOT* the result of defamation. They were the result of unwanted publicity. This case is an abuse of the legal system because it attempts to rewrite reality to turn what is definitely *not* a defamation case into one simply because that’s the way to get money from Imus.
As has been noted, Imus has been sued before under similar circumstances, making it fairly easy to figure out what his defense will be. In addition to the Hobbs case which has already been mentioned, Imus was sued in Bronx Supreme Court in 2000 (Mayhew v. Imus, et al., Index No. 26610/00).
In Mayhew, which involved allegedly defamatory comments made by Imus about a DMV employee, the defense successfully argued that his comments amounted to “rhetorical hyperbole,” which by law does not form the basis of a defamation action. The defense further argued that Imus was expressing a “pure opinion” rather than an allegation of fact. The defense cited an appellate case (Gross v. New York Times Co., 82 NY2d 146 – 1993) in which the court ruled “…only expressions that can reasonably be construed as stating an objective verifiable statement of actual fact are actionable as defamation.” The Court in Gross also ruled that in order to prevail, the plaintiff would have to show that “…the reasonable listener or reader is likely to understand the remark as an assertion of provable fact.”
So the question here is — did any reasonable person who heard Imus’ comments believe that he was asserting that the members of the Rutgers women’s basketball team are in fact prostitutes? I also expect, as others have suggested, that Imus will argue that he was actually commenting on the appearance of the basketball players, in which case what he said was clearly a “pure opinion.”
As repugnant as Imus’ remarks were, I have a difficult time seeing how this case is going a survive a Motion to Dismiss.
“I have a difficult time seeing how this case is going a survive a Motion to Dismiss.”
As to the case… if there’s no settlement, I will go on the record saying that she should lose, and I even have a fairly high confidence that she would, if it went to trial.
I wouldn’t be so optimistic. I believe part of the reason this website exists is because cases like these often make it much further than they should. I’d actually put Imus at the disadvantage. Who knows what will happen if this case makes it to a jury.
In the venacular of the age group in question, the word “ho” is short for “whore” and means a woman who is sexually easy or promiscuous or a woman who has that appearance. It does NOT mean prostitute as in a woman who provides sex for money.
(To put this into context, a few weeks ago, my sixteen -year-old commented that his older sister’s friends are “all whores” since most have had premarital sex and several got pregnant out of wedlock. Oddly, my oldest daughter has used the term “whore” herself to describe some of these friends as well as others. Since I know most of the kids both are talking about, I should add that my daughter’s assessment is more accurate than my son’s; why could be an interesting study of family dynamics and psychology.)
(This does raise an interesting question. If the plaintiff is claiming that “whore”, as applied to her using the common meaning of her peer group as I’ve described, is still defamation since it’s non-factual, then it seems to me that her entire sexual history will be exposed to the public. Since I seriously doubt she’s a virgin–though she may be–this seems a very unwise course of action.)
I am not a lawyer. I don’t even pretend to be one.
I have not read all of the comments here (I do intend to) but I have a couple of things to say, and at my age, if I don’t do it while I am thinking about it….
Suppose you are a lawyer and in the news reports about your precedent-setting presentation to the United states Supreme Court on a matter that you thought was pretty important you are referred-to as a “penguin-suited ambulance chaser. Defamation?
And see. I have forgotten the other thing.
(Going back for a clue, I see that I am not actually commenting on the item that triggered the thoughts. Maybe I’ll bo back there (if I can find it) and try again.)
Beldar, I must compliment you on your very civil behavior in a crowd of people who disagree with you. Rare these days.
But. I have to disagree with you on the crux of the issue, which is the meaning of “ho”. I can’t think of any reasonable person off the street who would think that Imus (who is, verily, a piece of refuse) meant that the players were prostituting themselves. Really. I think it’s really jumping the shark to posit that anyone rational would hear the comments he and his prducer made, and conclude that an accusation of being a whore was made. Rude in the extreme, yes. But not a criminal accusation.
Thanks for your time 🙂
Whoa, everyone. . . time out.
Why is this being tried in New York instead of New Jersey?
[DMN: because the statement was made in NY by a NY resident and the plaintiff is a NY resident.]
For that matter, this should be an easy case to throw out: She is NOT named specifically, she has NOT had her reputation harmed–indeed, the pub from this idiotic lawsuit is causing more harm than the original blanket comment about the entire team–and this should be thrown out on summary judgement with Rule 11 sanctions against the plaintiff.
“It’s not about the money”?
I call “B.S.”–or better yet, extortion and theft.
Adam,
If the case somehow makes it to trial, all bets are off. This is the Bronx we’re talking about, and Bronx juries have their own ideas about what constitutes a tort.
However, the case law in New York makes it very difficult for me to see how this case is going to get to a jury.