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Sued for Accurately Saying Government Employee Was a Mexican (and Shouldn't Be Employed):

My student Daniel Koontz is writing an article on free speech and the intentional infliction of emotional distress tort, and a draft of his pointed me to this remarkable case, Dominguez v. Stone, 638 P.2d 423 (N.M. App. 1981). It's nearly 30 years old, but it was decided very much during the modern era of free speech law, and it remains cited as precedent as to its general discussion of the emotional distress tort.

Remarkably, the court held that

  1. an elected official could be sued for defamation for accurately saying that a direct of a local program was a Mexican citizen, and

  2. he could be sued for intentional infliction of emotional distress for so saying, and for arguing that non-citizens ought not be employed in this job.

It may well be that it would be unconstitutional to actually discriminate against non-citizens in government job decisions, but surely a government official ought to be entitled to condemn the current state of affairs, even if there's nothing that the government may constitutionally do about that state of affairs. This strikes me as a total violation of First Amendment principles; even if the defendant hadn't raised the First Amendment — possible though unclear — those principles have to be considered by the court in developing the state law of torts. Yet a New Mexico appellate court held precisely that.

And while this story is hardly breaking news, it does show how courts can suppress disfavored viewpoints unless they're assiduously policed by higher courts, as well as what bad precedents there are in some state courts. (Note that, procedurally, the court reversed summary judgment in the defendant's favor, which is to say that the court allowed the plaintiff to take the case to the jury. I can't easily figure out what happened at trial, or whether the case settled, but the reversal of summary judgment announces a legal principle that the defendant's speech could lead to liability.)

In any case, here are the relevant facts:

The plaintiff is a 22 year-old Mexican National having been born in Mexico. She has been legally residing in the United States since she was 3 years of age and now is living in Grants, New Mexico....

Plaintiff was the director of the Senior Citizens Program in the Village of Central, New Mexico on September 16, 1980. Defendant Stone was a member of the Board of Trustees of Central which is its governing body. On September 16, 1980, during a public meeting of the Village Trustees and later during a closed meeting, or executive session of the Village Trustees, the defendant made ... statements ... to the effect that plaintiff was not suited for her employment with the Village of Central because she was a Mexican. Defendant's statements included a statement to the effect that the person performing the duties of program director of the Village of Central Senior Citizens Program should not be a Mexican, part of his reason being that the program is funded with American tax dollars.

The defendant interrogated the plaintiff at the meeting concerning payment of income and property taxes and whether she possessed a green card, whether she applied for United States citizenship, and whether she had registered to vote in the United States. On September 17, 1980, the defendant personally went to the office of the Grant County clerk to determine whether plaintiff was a registered voter. He was told she was not.

DEFAMATION OF REPUTATION

... The trial court dismissed this cause of action in its summary judgment.... "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The question we are confronted with now is whether there is an issue of fact that any of the comments of the defendant lowered the plaintiff's reputation in the estimation of the community, third parties, or her employers, the Board of Trustees.

The defendant contends that he had some sort of immunity to act as he did because he was a member of the Board of Trustees. We disagree. Public officials are not above the law. "The law protects only those who act reasonably and with a reasonable belief of the truth of their remarks." ...

There is evidence in the record from which a jury could conclude that the defendant was prejudiced against the plaintiff and that he was attempting to persuade the Board of Trustees to accept his views and attitudes towards the plaintiff. There is an issue of fact of defamation of reputation in this respect.

It is common knowledge in New Mexico that the word "Mexican" when used in circumstances similar to those in the instant case connotes prejudice and disparagement. It is also common knowledge in this State that, like defendant, many citizens of Mexican and Spanish descent also served in the armed forces, and some gave their lives for this country. Hardly an Hispanic family in New Mexico escaped the anguish of the Bataan Death March in World War II; Hispanics have served bravely in other conflicts as well.

We are not impressed with defendant's contention that because plaintiff is an alien, she should not be employed in Grant County. President Franklin D. Roosevelt, in an address to the Daughters of the American Revolution in 1938, said: "Remember, remember always, that all of us, you and I especially, are descended from immigrants."

We hold that the court erred in granting summary judgment in respect to this cause of action.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." ... "The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ...

We discuss here an identical case to the case at bar:

The court in Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977), held that the Plaintiff had sufficiently stated a cause of action under the tort of outrage as defined by the Washington courts and the Restatement (Second) of Torts, § 46 (1965), where it was alleged that the plaintiff, while in the employ of the defendant corporation, was subjected to intentional or reckless conduct on the part of the defendant's agents and employees which was beyond all reasonable bounds of decency and which caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public, and exposure to scorn and ridicule, when the defendant's agents knew or should have known that by reason of the plaintiff's Mexican nationality and background he was particularly susceptible to emotional distress as a result of the conduct. Noting that liability under the tort of outrage has been recognized in Washington when premised upon outrageous conduct such as alleged in the present case; the Court pointed out that when one in a position of authority over another allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior, the relationship between the parties being a significant factor in determining whether liability should be imposed. The Court stated that where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions through its supervisory personnel or by other means. The Court further observed that as to the various slang epithets that may have once been in common usage regarding Mexican-Americans, it was for the trier of fact to determine, taking into account changing social conditions and the plaintiff's own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage. (Emphasis added.)

We believe and hold, that the testimony of the plaintiff and the defendant which we have quoted in this opinion heretofore and all the evidence in the record do establish that an issue of fact does exist as to this cause of action....

Smokey:
I am shocked that the 1st Amendment takes a back seat to illegal immigration. But not so shocked to find that the plaintiff was a 22-year old female Mexican national, who certainly feels entitled. IMHO she should GTFO.
4.15.2008 9:17pm
Brian Macker (mail) (www):
"It may well be that it would be unconstitutional to actually discriminate against non-citizens in such job decisions"

Well then my HR department made me go through a lot of wasted time proving that my job offers to non-citizens were first offered to citizens. Apparently citizens have first dibs on all jobs according to US law. Which seems to discriminate against non-citizens if you ask me.
4.15.2008 9:22pm
Randy R. (mail):
So what? For years, it was considered an act of defamation to call someone a homosexual. Although a different jurisdiction, Liberace sued a British tabloid when they said he was a homo in the 1950s. Different time and place, of course, but that sort of stuff probably happened here.

I don't know what the current state of law is, but I believe that if you are called a homo and you are straight, it is an actionable offense. It shouldn't be.

Someday, no one will be ashamed to be called a Mexican or gay, regardless of the truth of the matter.
4.15.2008 9:23pm
sbron:
So how about if the Dean of UC Davis Med School says a European-American Doctor should not be employed in a clinic in a Latino neighborhood, as he/she lacks the appropriate cultural competency.
4.15.2008 9:26pm
Oren:
I am shocked that the 1st Amendment takes a back seat to illegal legal immigration.
Fixed it for you, at least factually. It will take a lot more fixing before you figure out that simply because some people enter illegally (and perhaps cause problems by doing so) that says nothing about those here legally.
4.15.2008 9:30pm
Roscoe B. Means:
That is some pretty bizarre reasoning, even ignoring the First Amendment issues. I just read the opinion on Westlaw, because I had trouble believing that such absurdity would be found in such a relatively recent decision. It looks like Judge Lopez was so offended by the word "Mexican," that he just couldn't think straight.
4.15.2008 9:35pm
Richard Nieporent (mail):
We are not impressed with defendant's contention that because plaintiff is an alien, she should not be employed in Grant County. President Franklin D. Roosevelt, in an address to the Daughters of the American Revolution in 1938, said: "Remember, remember always, that all of us, you and I especially, are descended from immigrants."

Could this by any chance be the same Franklin D. Roosevelt that put approximately 110,000 Japanese nationals and Japanese American citizens in interment camps? You would think that the court could find a better example to cite, now wouldn't you?
4.15.2008 9:55pm
Cornellian (mail):
And while this story is hardly breaking news, it does show how courts can suppress disfavored viewpoints unless they're assiduously policed by higher courts

That risk is hardly restricted to the supression of disfavored viewpoints.
4.15.2008 10:00pm
eric (mail):
This case also illustrates how intentional infliction of emotional distress jurisprudence is generally strange. It is, how do you say, "Outrageous!"
4.15.2008 10:03pm
Bill Poser (mail) (www):
The fact that the woman was not a citizen is not relevant for purposes of employment, is it? Unless I am mistaken, with the exception of security clearances and certain jobs like law enforcement officers permanent legal residents have the same status as citizens for purposes of employment. That being the case, I wonder if it makes/made a difference that the Trustee was not making a general statement to the effect that the kind of job Dominguez held ought to be limited to citizens but singled her out and seems rather actively to have pursued her.
4.15.2008 10:19pm
John (mail):
So I could be sued for defamation if I said you are white and should not get the job ahead of a qualified black person? I believe a lot of white guys marched in the Bataan Death March too.
4.15.2008 11:11pm
Brian G (mail) (www):
These are New Mexico judges we are talking about. Free speech is OK when you are bashing Republicans or conservatives. Go to the NM Supreme Court library in Santa Fe sometime. They proudly have a huge display of mementos from when they stuck it to Governor Johnson, a Republican, of course. They would never do that to Richardson.

The judges here are a wholly-owned subsidiary of the trial lawyers bar. Hell, pretty much everyone on the Appeals Court and Supreme Court are former trial lawyers. And my God, don't ever go see Supreme Court Justice Serna speak. He tells the same bullshit story over and over again about how poor he grew up, yet somehow found his way into all the tops schools throughout his life. Please. Then he'll whine about how hard it is for Hispanics to make it in this state, which is the biggest joke ever.

I have been practicing here a long time and our judiciary is a disgrace. I once had a judge deny my summary judgment motion on the Statue of Limitations she filed over a year late by using the impressive legal logic, "She has a right to her day in court."
4.16.2008 12:11am
Brian G (mail) (www):
I take back everything I just said. The First Amendment doesn't exist here when you are criticizing liberals.
4.16.2008 12:12am
Bama 1L:
It may well be that it would be unconstitutional to actually discriminate against non-citizens in government job decisions, but surely a government official ought to be entitled to condemn the current state of affairs, even if there's nothing that the government may constitutionally do about that state of affairs.

Isn't the question that precludes summary judgment whether the government official was "condemn[ing] the current state of affairs" or purposely being a jerk?

Does Professor Volokh think all speech made by elected officials in the discharge of their duties is immune from tort, and, if so, on what basis?
4.16.2008 12:12am
Eugene Volokh (www):
Bama 1L: Well, I think that all speech that is outside one of the narrow First Amendment exceptions, such as a false statement of fact (said with the proper mens rea), threat, or the like, is indeed immune from tort -- whether said by elected officials or by others. And, no, I don't think that "purposely being a jerk" is a First Amendment exception.
4.16.2008 12:21am
Bama 1L:
Okay, so Professor Volokh's problem is with the IIED tort more generally. That this concerns (viewing the facts most favorably to the moving party) an elected official railing against his inability to hire whomever he wants isn't really germane, then, except that it points out some problems with IIED.
4.16.2008 12:29am
Eugene Volokh (www):
Bama 1L: Why, yes, if the IIED tort bars people from speaking about what they see as improper hiring by government agencies, that does point out some problems with IIED, no? Moreover, what makes the speech outrageous in the court's view is at least in large part the viewpoint that the speech expresses -- precisely what speech restrictions generally may not permissibly turn on.

And of course an "outrageousness" test is highly vague, with all the constitutional perils that vagueness brings (see Grayned v. City of Rockford): It fails to give speakers adequate notice, it invites viewpoint discrimination by government decisionmakers, and it causes cautious speakers to steer wide of the unlawful zone, thus deterring even more speech than it facially punishes. So, yes, there are serious constitutional problems with IIED as applied to speech, especially speech such as this, as this case illustrates.

Plus note also that the opinion had some problems with defamation law, chiefly in finding a true statement to be actionable defamation.
4.16.2008 1:52am
Grover Gardner (mail):

IMHO she should GTFO.


Sigh. Another bitter voter.
4.16.2008 2:07am
TerrencePhilip:
These are New Mexico judges we are talking about. Free speech is OK when you are bashing Republicans or conservatives. Go to the NM Supreme Court library in Santa Fe sometime. They proudly have a huge display of mementos from when they stuck it to Governor Johnson, a Republican, of course. They would never do that to Richardson.

The judges here are a wholly-owned subsidiary of the trial lawyers bar. Hell, pretty much everyone on the Appeals Court and Supreme Court are former trial lawyers.


Niiice. I'm checking reciprocity as we speak.

In the meantime I'd like to point out that one reason many cases turn out the way they do in state court is WHO the lawyer for one side is (and what they've done for the judge). I can see a bit of that in federal district court too- many of the judges are impressed with certain lawyers, though obviously they don't owe them for fundraising like they do in state court. At the federal appellate level the geographic area is too big, and the judges too removed from the fray and/or committed in their ideology for those personal factors to make much difference.
4.16.2008 2:15am
Anon__:
I'd like to provide some context to those outraged by this lawsuit despite it being based on 'factually accurate' statements. Sure, if you say someone is 'a French' or 'a German' you probably won't get sued and you probably won't offend anyone. But lets not turn a blind eye to the resentment, anger, and outright hatred that many White Americans have against Hispanics (and Mexicans in particular).

I'm a naturalized citizen of Mexican descent. I'm not ashamed of my Mexican heritage, but I'm not stupid. When a White American tells me something along the lines of 'you're a Mexican aren't you?' or 'you're just a Mexican' I don't take it as a question that arises out of curiosity. The simple addition of 'a' preceding 'Mexican' already adds a certain undertone similar to the way that some Jewish people find 'hey, are you a Jew' to have an offensive undertone.

In fact, on several occasions these statements have been followed by an insult, such as 'Move your f_ing car, I have been parking in this spot for years and now a Mexican takes it!?' Besides my personal experiences, I have seen this topic discussed in contemporary shows (comedy, talk etc discussing whether Hispanics get offended if they are called 'a Mexican' or asked if they are 'a Mexican') so its not like this should be news to anyone. The fact is many non-Hispanic people have taken a liking to using the term in an offensive manner, as a way to insult others (i.e. you're acting like a Mexican). No different than when people insult others with a phrase such as 'Don't be a Jew about it' etc.

In sum, regardless of whether or not a person of Mexican descent should be offended or ashamed, many non-Hispanic people use the term in a derogatory way. I wouldn't be surprised if this public official used it in the same way against the legal resident plaintiff. Nevertheless I'm not pointing out whether the suit was viable or not, only that we should not ignore the fact that the term has been and continues to be used in a derogatory way. So yes, it is factually accurate, but that hasn't stopped non-Hispanics from using it in a way that is meant to insult others. Are all Mexicans and persons of Mexican descent supposed to ignore the undertones when they're obvious simply because it is a factually accurate statement?
4.16.2008 4:49am
EIDE_Interface (mail):
Anon:

You have a right to be offended. You do not have a right to sue someone for being offended.
4.16.2008 4:55am
wuzzagrunt (mail):
So, there should be an "undertone" exception for political speech? Welcome to Multikultopia.
4.16.2008 6:14am
Daniel Chapman (mail):
I wonder what's worse... the fact that some people who don't like mexicans use the word "mexican" with an "offensive undertone" or having the word "mexican" declared offensive by default.

Frankly, if I were a mexican, I'd be more angry to realize my nationality had been declared a "dirty word" by the PC culture than to know someone somewhere was using it offensively.
4.16.2008 7:54am
Richard Aubrey (mail):
Brian G.
Please explain.
4.16.2008 8:11am
tarheel:
State courts are notoriously inept at handling IIED and defamation suits. Pro-plaintiff decisions almost never survive appeal untouched. The only surprise here is the trial court actually got it right. Thankfully order was restored when the appellate court screwed it up.
4.16.2008 8:53am
alkali (mail):
Prof. Volokh writes:

This strikes me as a total violation of First Amendment principles; even if the defendant hadn't raised the First Amendment — possible though unclear — those principles have to be considered by the court in developing the state law of torts.

I would urge the student writing about the case to do everything he can to obtain a copy of the briefing to the appellate court in this case. An appellate opinion is like the part of an iceberg above the waterline; there's frequently a lot more going on below than you might imagine, and puzzling over how the opinion is worded or what the court might have been thinking about can only take you so far.
4.16.2008 9:36am
FantasiaWHT:
In my first-semester 1L writing course, the first memo we wrote was on an IIED case. It was horrible, and I think my whole class came out of that experience afraid that all law was going to be that muddy, vague, and complex.
4.16.2008 10:57am
Aultimer:

Anon:
Are all Mexicans and persons of Mexican descent supposed to ignore the undertones [of being called "a Mexican"] when they're obvious simply because it is a factually accurate statement?

Yes - or at least realize that it's not defamation, and certainly not actionable.

I also expect all Mexican nationals and persons of Mexican descent to understand that it's not defamation if I call them "idiots" if I happen to observe them doing something I find dumb, nor if I call them "ugly" should I find them physically unattractive.
4.16.2008 11:01am
sbron:

I'm a naturalized citizen of Mexican descent. I'm not ashamed of my Mexican heritage, but I'm not stupid. When a White American tells me something along the lines of 'you're a Mexican aren't you?' or 'you're just a Mexican' I don't take it as a question that arises out of curiosity. The simple addition of 'a' preceding 'Mexican' already adds a certain undertone similar to the way that some Jewish people find 'hey, are you a Jew' to have an offensive undertone.


During the 30 or so years I've lived in California, the extent to which "Mexican" is an insult has really decreased. The appellation "Mexican" seems to be becoming preferred among Latino students of Mexican descent in preference to the older "Chicano". Similarly, I remember when "Jew" was used in an insulting manner, but in both Israel and the U.S., the phrase "I'm a Jew" is increasingly used without any connotation of negativity.

In contrast, over 30 years I've heard the phrase "white male" evolve from a government classification to a sneering insult (see the "whitemale" in Houston Baker's writings.) I heard a really troubling graduation speech by a College dean, in which he freely disparaged white males with a nasty intonation that I had previously associated with "Jew".

And don't get me started on either the Gadsden purchase, or all the nasty insults my children have been called by their Mexican peers. In any event, the extent to which an appellation is an insult can change rapidly with changing demographics and politics.
4.16.2008 11:11am
JosephSlater (mail):
Let's take this piece by piece. First, the court didn't hold that plaintiff won, just that plaintiff's claims could go to a jury. Should they have? Were there any material facts in genuine dispute?

Based on the description above, the defamation claim should not have gone to a jury -- assuming there was no genuine dispute of material fact over whether the statement was true, as truth is a defense. Was there an arguable genuine dispute over the truth of the statement?

The IIED claim is murkier. The "outrageous" standard is indeed vague. The fact that a statement is *true* does not necessarily insulate it from being outrageous imagine someone repeatedly screaming "your parents died in a concentration camp during the Holocaust! Ha, ha!" to someone whose parents indeed did suffer that fate. Unless one truly believes there should be no IIED tort, that would be a colorable claim.

The tricky part here, to me, is the way the court appears to be using this area of tort law to punish an elected official for expressing a view on what the law should be (and indeed, for *most* government jobs, discrimination on the basis of alienage is illegal).

Now, if an elected official repeatedly screamed in the face of some black person, "you f'n n***ers shouldn't be allowed to hold government jobs," I could see IIED liability. So it depends on the specific facts of this case. What exactly was said, to whom? Was it just one statement, once? That doesn't usually create IIED liability. Were the facts sufficiently disputed to make a denial of summary judgment at least plausible?
4.16.2008 11:31am
CJColucci:
In any event, the extent to which an appellation is an insult can change rapidly with changing demographics and politics

You've hit the nail on the head. Whether a word or phrase is defamatory usually requires analysis of constantly-shifting social attitudes, which means that in all but the clearest cases you have a question of fact for the jury -- no summary judgment. New York has an almost funny line of cases in which, depending on whether Russia is our Gallant Ally in the Struggle Against the Axis or the Red Menace, the term "communist" is treated as not defamatory as a matter of law, judicially noticeable as defamatory, or a question of fact for the jury to decide. What "Mexican" meant in New Mexico in 1981, and whether it then had broader connotations that kept the literal truth of the plaintiff's being Mexican from being a defense is something I doubt any of us knows much about. Certainly none of us would know better than a New Mexico jury.
4.16.2008 11:37am
c.gray (mail):

Was there an arguable genuine dispute over the truth of the statement?


Which statement? That she was a Mexican. Or that she ought to be fired because she was a Mexican. Why isn't the latter defamatory?
4.16.2008 11:52am
JosephSlater (mail):
C. Gray:

The statement "she ought to be fired because she is a Mexican" shouldn't be defamatory because defamation requires statements of a factual nature, and that statement is one of opinion. "She is a Mexican" is a statement of a factual nature, but opinions about what the consequences of that fact should be are opinions. And even insulting or offensive opinions aren't *defamatory*, at least not under the normal definition of that tort (I'll confess to not being expert on New Mexico law).
4.16.2008 12:03pm
Brian G (mail) (www):
TerrencePhilip: No reciprocity here.

Richard Aubrey: Explain what? Wasn't I clear enough?

The laws and courts here are why I don't do civil litigation anymore, and why I focus my work one state over.
4.16.2008 12:07pm
Vern Cassin (mail):
I've occasionally wondered if certain words should have their connotations unpacked for legal purposes.

Let's say I call someone a faggot (just to be clear, I don't do this). Here's, roughly, what I would mean:

1. You are homosexual.
2. That is a bad thing.
3. Ergo, you are bad.

It's not just meaning 1, it's all three. Similarly in this case I suppose the argument would go that the official's use of "Mexican" contained a secondary pejorative meaning.

The problem here is that while meaning 1 might be a factual issue, meanings 2 and 3 are pretty firmly in the realm of opinion. Thus, they're protected by free speech jurisprudence even if most people disagree that these qualities are bad. Only the first, factual meaning can open the door to defamation.

The Liberace case (which someone mentioned above) is, by the way, based on the equivalent first meaning. The question was whether he was actually homosexual. The reason he won is because England puts the burden of proof on the defendant to substantiate his story, rather than on the plaintiff to disprove it (as in our system). This is coming up in terrorism law; several US newspapers and authors with international distribution have been sued in England for claiming that certain Arab millionaires are terrorist supporters.
4.16.2008 12:19pm
c.gray (mail):

And even insulting or offensive opinions aren't *defamatory*, at least not under the normal definition of that tort


You might want to read MILKOVICH v. LORAIN JOURNAL, 497 U.S. 1 (1990).

The problem is that whether a statement is one of "fact" or "opinion" depends on the context in which it is made. If the speaker is one reasonably perceived by the listeners as being in a position to know whether or not the statement is definitively true, their "opinion" may very well be construed as "fact".

A statement by a member of a municipal Board of Trustees during a public meeting of the board that a person is unsuited for employment by the municipality because she is "Mexican" seems to me to be EXACTLY the sort of context where expressions of "opinion" might be misconstrued by many as "facts". At a minimum, whether such a context exists ought to be a question of fact for a jury, not a matter for a trial judge to determine as a matter of law in a motion for summary judgment.
4.16.2008 1:29pm
Hans Bader (mail) (www):
This is an extremely disturbing example of judicial censorship.

The elements of the tort (IIED) aren't met here in any case.

Moreover, even if they were, public debate and discussion is generally immune from the tort under the First Amendment. Far worse speech has been held to be protected, see Hustler Magazine v. Falwell (1988) (U.S. Supreme Court rules that First Amendment shields from liability a parody depicting plaintiff in incestuous drunken encounter with his own mother, even though a jury found it met the elements of the IIED tort); Herceg v. Hustler Magazine.

And when judges allow tort liability for protected speech, that violates the First Amendment. See New York Times v. Sullivan (1964) (Supreme Court so rules).
4.16.2008 1:31pm
JosephSlater (mail):
C. Gray:

I undersatnd that there are some close cases as to what is a statement of "fact" (or purported fact) and what is an opinion. I'm still of the opinion that a statement along the lines of "so-and-so is unsuited for the job because of his or her ancestry or alienage" is more of an opinion-type statment than a factual-type statement. But that's just my opinion.

Hans: While I'm not necessarily defending the result in this case, your claims see a bit broad. Suppose defendant, say a public employer, yells repeatedly at, say, a black applicant for a job, "you fucking niggers aren't good enough to work for me," are you saying that tort and statutory suits are necessarily barred by the First Amendment? If that's what you're saying, are you claiming that's what the law actual is under current precedent, or what you think the law should be?
4.16.2008 1:42pm
Hans Bader (mail) (www):
This is a clear, straightforward example of protected speech, despite its offensiveness.

As any -- absolutely any -- libel lawyer could inform c. gray, there is no libel cause of action here under the U.S. Supreme Court's decision in Milkovich v. Loraine Journal, 497 U.S. 1 (1990).

The speech is clearly protected, and courts outside New Mexico would readily recognize as much. Indeed, Supreme Court decisions issued after the date of the New Mexico ruling have washed away its foundations.

The reason the speech is offensive is because it allegedly contains racist OPINION -- that aliens are unsuited to public employment -- not FACT.

(I don't agree with this opinion -- I am married to a non-citizen alien, and don't think aliens are unsuited to employment -- but it is an opinion protected by the First Amendment nonetheless).

The only fact at issue is a true one -- the employee's status as an alien.

Moreover, the opinion voiced does not insinuate any untrue subsidiary facts, as might give rise to liability under Loraine Journal, but rather is a straightforward statement of opinion.

Moreover, as I have explained in a comment above, the comments do not satisfy the test for the I.I.E.D. tort, and would be protected under court rulings like Hustler Magazine v. Falwell (U.S. Supreme Court, 1988) (holding protected a parody of plaintiff having sex with his mother in an outhouse even though it caused him severe emotional distress) and Herceg v. Hustler even if they were tortious.
4.16.2008 1:43pm
JosephSlater (mail):
I also understand how to spell "understand," the first sentence of my post above to the contrary notwithstanding.
4.16.2008 1:46pm
Hans Bader (mail) (www):
As I noted above, the court's decision was wrong in many ways, since the First Amendment limits the tort of intentional infliction of emotional distress, and "public debate and discussion is generally immune from the tort under the First Amendment," according to the Supreme Court and federal appeals courts.

Joseph Slater, however, seems to believe that I wrote "public employer" rather than "public debate," since he writes,

"Hans: While I'm not necessarily defending the result in this case, your claims see a bit broad. Suppose defendant, say a public employer, yells repeatedly at, say, a black applicant for a job, 'you fucking niggers aren't good enough to work for me,' are you saying that tort and statutory suits are necessarily barred by the First Amendment?"

No, they aren't necessarily barred. Far from it.

I didn't claim that all speech in a government workplace (public employer), no matter how trivial or internal or how much it employs egregious racial epithets, was protected. (Nor did I claim that a race-based refusal to hire by an ultimate decisionmaker would be immune from liability merely because words were employed in the process)

Much of what is said in a government workplace isn't "public debate," and as a result doesn't enjoy ANY protection from internal agency discipline (or AS MUCH protection from tort liability as speech that truly does involve public debate, which is given added protection even when it is truly hurtful under the Supreme Court's decisions in cases like New York Times v. Sullivan (1964) and Hustler Magazine v. Falwell (1988)).

For an example of a court case noting that most speech in a public employer is not public debate or discussion, see, e.g., the Eleventh Circuit's decision in Morgan v. Ford, which ruled that speech about internal agency employment disputes is not on a matter of public concern, even though it occurs in a public employer, and that discipline for such speech therefore does not violate the First Amendment.
4.16.2008 1:54pm
JosephSlater (mail):
Hans:

Thanks for the reply. I did not, however, misunderstand you. I used a public employer as an example, because as you probably know, there are cases on point, and moreover, because the defendant in the case this thread concerns was a public official. But for my hypo, it could just as easily have been a private employer.

I took your point to be that a defendant saying, "a member of X group isn't fit for public service" deserves some First Am. protection because it involved "public debate." I don't disagree with that, but I was just shifting the hypo to see if you thought the same point, made in a more egregious way, would still be protected.

Also, I wasn't just asking about the ability of the government as an employer to discipline the employee, but rather whether the employee could bring a suit. But that's a somewhat different issue.

Bottom line. Just to confirm: if a PRIVATE employer did what I described above to his employee, tort and statutory suits wouldn't necessarily be barred by the First Am., right?
4.16.2008 2:07pm
c.gray (mail):

The reason the speech is offensive is because it allegedly contains racist OPINION -- that aliens are unsuited to public employment -- not FACT.


Sorry, but in this particular case, that's a question of FACT for the jury.

An elected official, during a public hearing, claimed that a non-citizen is "not suited" for her employment because the program in question is funded by "American tax dollars". Such a claim is easily understood, or misunderstood, by all present as a FACTUAL statement regarding the legality of the victim's employment, and as an implied claim that she only obtained her employment by fraudulently misrepresenting her citizenship status during the application process. Both of these "FACTS" were objectively false, AND subjected the plaintiff to ridicule, shame, vilification etc...

Now, as a juror, I might well be skeptical of the claim that the defendant had publicly accused the plaintiff of being a fraud, liar and criminal, rather than simply expressing his mere opinion that she was a Mexican bean-eater. But I could not say as a judge that there is not one scintilla of evidence to support the plaintiff's defamation claim. Especially when, as in this case, the defendant made a point of publicly questioning whether the victim had paid her income taxes, and whether she had committed a felony by registering to vote.
4.16.2008 2:27pm
Ryan Waxx (mail):

Such a claim is easily understood, or misunderstood, by all present as a FACTUAL statement regarding the legality of the victim's employment...


That's ridiculous. Because a factual assertion might be misunderstood, you treat it as false?

Its literally true, and dancing around the point doesn't fool anyone.
4.16.2008 3:27pm
JosephSlater (mail):
Actually, I think C. Gray has an interesting argument. If something could reasonably be misunderstood as a statement of fact as opposed to a statement of opinion, then arguably it should be allowed to go to a jury.
4.16.2008 3:49pm
tarheel:

Because a factual assertion might be misunderstood, you treat it as false?

If it is literally truthful but clearly intended to express something which is in fact false, then yes. We had a similar discussion in another thread a few weeks back. If I were to say to you, "Because I don't want to get sued for saying otherwise, I am telling you that X did not kill his dog. But I know the truth." Now that might literally all be true, but it clearly is intended to mean, and a reasonable person would take it to mean, that X did kill his dog. That is defamatory.

Not relevant in this case, I don't think, but there is an important distinction there.
4.16.2008 4:02pm
c.gray (mail):

Because a factual assertion might be misunderstood, you treat it as false?



Only in the sense that I'm fairly sure that the standard is not what the speaker literally intends to communicate, but what a reasonable listener would understand the words to mean.

If I say in a crowded neighborhood pub and shout "Shirley the bartender ain't nothing but a ho, has never been nothing but a ho, and will always be a ho", I can't win a motion for summary judgment against a claim of defamation by producing undisputed evidence that I meant she was similar to a gardening tool, or that she was pretty enough to be a backup dancer in a gangsta rap video, and that the listeners just "misunderstood" my true meaning when the crowd inferred I was asserting that Shirley is a prostitute.

Similarly, if the speaker is a public official who, upon discovering a municipal employee is a non-citizen, exclaims, "How the hell did this Mexican kid get hired, anyway? These jobs are funded by American tax dollars. They are supposed to go to American citizens. She's probably tried to register to vote, too! And I'll bet she's never paid a dime of taxes!" it seems to me that a reasonable listener might well understand the speaker was making factual assertions about the Mexican employee's character. If the speaker wants to argue that a reasonable person would understand he was expressing a mere opinion regarding the virtues of reserving municipal employment for citizens, he gets to make that argument to a jury. He doesn't win at summary judgment.
4.16.2008 5:11pm
Hans Bader (mail):
Yes, the defendant should win even at summary judgment.

And on appeal, there should not be broad deference to the trier of fact as to the meaning of the speech, since in First Amendment cases, the deferential review that typically applies is replaced with the independent judgment standard mandated by the U.S. Supreme Court in Bose v. Consumers Union.

(Independent judgment applies even in situations where fact-finders normally receive great deference. See In re George T., 93 P.3d 1007 (Cal. 2004) (whether student's speech was threatening; finding speech protected based on appellate court's independent judgment, despite contrary ruling below)).

Moreover, the speaker's intent, not just listeners' perceptions, is relevant in First Amendment cases, as Supreme Court decisions like Virginia v. Black confirm.

Moreover, there is no basis for an I.I.E.D. tort, either. Far worse speech has been held by the Supreme Court to be protected by the First Amendmendment from tort liability, see Hustler Magazine v. Falwell (1988) (U.S. Supreme Court rules that First Amendment shields from tort liability a parody depicting plaintiff in incestuous drunken encounter with his own mother, even though a jury found it met the elements of the IIED tort); Herceg v. Hustler Magazine.
4.16.2008 7:12pm
Smokey:
Show of hands, please:

How many folks defending this citizen of another country would willingly relinquish the prospect of getting an excellent job, and would instead step aside and hand it to the foreign citizen?

...What, no one would?

Didn't think so.
4.16.2008 9:05pm
c.gray (mail):
<blockquote>
And on appeal, there should not be broad deference to the trier of fact as to the meaning of the speech, since in First Amendment cases, the deferential review that typically applies is replaced with the independent judgment standard mandated by the U.S. Supreme Court in Bose v. Consumers Union.
</blockquote>

The issue of whether the First Amendment limits the application of the tort of defamation is different from whether the elements of the tort are actually present. <i>Sullivan</i> blocks defamation actions over statements of public interest in the absence of proof of malice or recklessness. And <i>Bose</i> does state that an appellate court should do a de novo review of the factual record on the question of malice.

But our unfairly misunderstood Defendant probably isn't helped much by the Supreme Court's First Amendment jurisprudence. The sole factual basis for Stone's public claims that the defendant obtained her job in violation of the law, committed voting fraud, and cheated on her taxes appears to have been that she's a Mexican. Good luck convincing Judge Lopez that this fact alone, as a matter of law, precludes a finding of reckless disregard for the truth on Stone's part.
4.16.2008 11:32pm
ReaderY:
Given society's prejudice against intellectuals and the dearth of Harvard graduates who became President in recent years, if some stated that a politician was a Harvard graduate and the politician lost the election, could the politician sue?
4.17.2008 12:01am
Ryan Waxx (mail):
"Accurate, but Fake" has as much intellectual honesty and worth as "Fake, but accurate", and you'd be screaming bloody murder if it was anyone but a white male being tried using such an impossibly vague, abusable standard such that not even the truth is a defense.

But of course that's how identity politics works. Those holding the whip of victim-group authority today count on the whip never changing hands to another group...
4.17.2008 2:11am
Bob Goodman (mail) (www):
But there's no plainer way to say "Mexican". Sure, summary judgement, because no set of facts you could come up with would have a less offensive way to say "Mexican".
4.17.2008 2:19am
c.gray (mail):

if it was anyone but a white male being tried using such an impossibly vague, abusable standard such that not even the truth is a defense.


Stone's assertions appear to have gone a bit beyond the objectively true fact that the plaintiff was a Mexican citizen, and expressing his purely personal opinion that only US citizens ought to be employed in government jobs.

Honestly, if the defendant here was a Mexican-American official who had used a government hearing to grandstand on the issue of affirmative action by raking a white male employee over the coals about whether he had cheated on his taxes or lied about his credentials during the civil service process, my analysis of the case would be pretty much the same.

I'd also be rooting for the plaintiff just as hard. Too many elected officials, from the local Board of Trustees all the way up to Congress, think that hearings are perfect opportunities to humiliate witnesses while engaging in political grandstanding.

Once in a blue moon, a victim of this process responds by filing a lawsuit for slander or defamation. Usually these suits get dismissed quickly on the grounds that the public official has a qualified or absolute privilege, which is a different issue than the 1st amendment, and primarily a matter of state law. But I'm perfectly happy to give the appellate judge here the benefit of the doubt when he states that New Mexico law provides no privilege in cases like this.

/shrug

My personal opinion is that defamation in general is an archaic tort almost completely incompatible with modern understanding of freedom of speech and freedom of the press. It ought to be cut down to the same pygmy status actions like "breach of a contract to marry" or "alienation of affections" now enjoy. But I'll admit, I'm happy to see it go forward in cases like this.
4.17.2008 11:47am