Don Imus sued by Rutgers player
Update 8/21/07:
Surprise, surprise, Al Sharpton throws his take on the lawsuit. His conditions for Don Imus to settle... one is to pay Rutgers player Kia Vaughn (and any other player who decides to sue Imus) a settlement for her defamation suit, a statement that Imus will affirm not to take "cheap shots at women and blacks or any other group" and a pledge to "refrain from attacks on innocent people who cannot defend themselves." Last, set aside an on-air slot every week for an ombudsman from the National Association of Black Journalists, and "encourage all corporations, including the record industry, to stop subsidizing and promoting people who engage in racist and misogynist language, even in the name of entertainment."
Sharpton: "It was not and is not our desire to interrupt the life of Don Imus. We just want to ensure that he does not interfere with ours."
Well if that's his reasoning, then why interrupt the lives of those three Duke lacrosse players? Sounds to me that Sharpton is being a bit hypocritical there. Cheap shots? With all those rules, you might as well remove every talk show radio hosts across the entire spectrum. Also, it seems Sharpton wants to give a "green light" to the rest of the players if they want some cash to "ease" their suffering. The question is will the rest of them follow Kia's lead? Or perhaps they won't and leave Kia alone under the media spotlight.
Update 8/16/07:
A check on various blogs and newspaper clippings on the lawsuit are mostly negative against the lawsuit. The main reasoning against her lawsuit is the allegation about their reputation being tarnished. Yet, weeks after Don Imus made his offensive remarks, commentators to other distinguised leaders have all said the women carried themselves with dignity and class following the incident. They were called strong, intelligent, career-minded, and so on.
Where is the tarnished reputation?
* * * * *
Was this all planned or just "blatant" coincidence? Hours after radio shock jock Don Imus settled his breach-of-contract lawsuit with CBS on Tuesday, Rutgers player Kia Vaughn, a junior on the basketball team, filed a civil lawsuit against him for libel, slander, and defamation.
Of course, she is seeking monetary damages of an unspecified amount.
The lawsuit names Imus individually, but it is also waged against MSNBC, NBC Universal, CBS Radio, CBS Corp., Viacom Inc., Westwood One Radio, and Imus producer Bernard McGuirk.
It claims that Don Imus' nappy-headed ho comment damaged her reputation. For the media companies, it alleges that they "wrongfully, intentionally, willfully...created, tolerated, and maintained an atmosphere in which the making of outrageous statements and comments was acceptable, encouraged, and/or rewarded for many years prior to this occurrence and/or overtly encouraged the statements made."
Attorney Richard Ancowitz
"This is a lawsuit in order to restore the good name and reputation of my client, Kira Vaughn... There's no way these bigoted remarks should have seen the light of day.... Don Imus referred to my client as an unchaste woman. That was a lie."
* * * * * * *
I am surprised it took that long for someone on the Rutgers basketball team to file a lawsuit against Don Imus. He made the nappy comment on April 4 and the lawsuit came on August 14. I really doubt the lawyer's assertion that it was just a complete coincidence on the timing.
It is quite interesting to note Ancowitz statement about "The full effect of the damage remains to be seen." That seems to be a veiled threat to Imus to settle out of court or face the prospect of a more expensive lawsuit.
So far, it is not known whether the rest of the Rutgers women basketball team are supportive of Vaugh's lawsuit. We are not yet sure if Coach C. Vivian Stringer knew about it or even sanctioned such an action.
However, I bet that the moment this lawsuit was reported on the mainstream media, the question on everyone's minds is "Who is Kia Vaughn?" Outside of Rutgers University and the NCAA program, I bet no one knows who she is. Don Imus himself did not mention her name. If you mention Rutgers to some person walking on the street, he or she would likely recall that their women's basketball team reached the NCAA Finals but lost to Univ. of Tennessee, and that Don Imus made some offensive comments about the women on the team, and lost his job.
Come on here, Don Imus did meet with the players and apologized for his remarks. We all thought this whole story would just end, but Kia Vaughn and her lawyer decided to be more greedy and add more fuel to the dying fire. It's a shame, but this is America, and you can sue anybody for just about anything.
With this lawsuit, it will give a negative perception that it was all about the money. This case will cast a shadow over the team, the sports program, and the university for next several months. Kia will now be in the national spotlight more often as compared before.
The weird part of all of this is that Don Imus did not defamed Kia Vaughn specifically. Check his comments on April 4. Kia's name was not mentioned at any point during his broadcast. Is she insinuating that Imus' remarks were more damaging to her than her teammates? That her brand of suffering is greater than everyone else's? Also, she has to prove the word "nappy headed ho" means what she claims it means.
To make sure it was not about her, her lawyer said that some of the money from any damages would be used to create a scholarship program to study the effects of bigoted and misogynistic speech on society. Quite a nice PR move. Then I guess the rest is for Ancowitz and Vaughn. Please... there are other ways to raise money.
Let's move on. But it won't happen. Anyone wants to bet on the possiblity that you will see Kia Vaughn standing between Al Sharpton and Jesse Jackson at a news conference applauding the lawsuit?
Comments
Posted by: Frank
Posted on: August 15, 2007 12:20 PM
Here's the problem: no one knows any of these players. But for this lawsuit, no one would associate Vaughn's name with Imus' comment. All the public knows is that Imus used a racially insensitive phrase to mockingly describe the team. Imus' comment didn't tell us anything about any of the players' character or reputation -- all we know is that Rutgers has a team (and if it weren't for the whole controversy, most of America wouldn't know that Rutgers even had a women's basketball team).
Vaughn's found herself an irresponsible lawyer and it will probably cost her some pretty good dough.
Posted by: David W.
Posted on: August 16, 2007 08:19 AM
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):
As a general rule, a cause of action for defamation may be supported by a claim that the defendant used words that hold the plaintiff up to contempt, hatred, scorn or ridicule, or tend to impair his standing in the community. However, an evolving body of cases based on both constitutional and common law considerations constrains the ambit of this tort by prohibiting redress for racial, ethnic, religious or gender-based epithets, pejorative rhetoric, and 'pure' statements of opinion. Lyons v. Globe Newspaper Co., 415 Mass. 258, 266-67 (1993); Pritsker v. Brudnoy, 389 Mass. 776, 778 (1983). See generally Nolan and Sartorio, Tort Law § 130 (2d ed.1989).
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:
When considered in the context of the ribald radio 'shock talk' show in which they were made, it is clear that the complained of statements would not have been taken by reasonable listeners as factual pronouncements but simply as instances in which the defendant radio hosts had expressed their views over the air in the crude and hyperbolic manner that has, over the years, become their verbal stock in trade. Gratuitously tasteless and disparaging as defendants' remarks about plaintiff were, they were nonetheless properly deemed by the motion court to have been nonfactual, and hence nonactionable, statements of opinion (see, Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986)).
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):
Statements of opinion are absolutely privileged and shielded from claims of defamation under Article 1, Section 8 of the New York State Constitution, no matter how vituperative or unreasonable the opinions may be (see Brian v. Richardson, 87 N.Y.2d 46, 637 N.Y.S.2d 347, 660 N.E.2d 1126 (1995); Steinhilber v. Alphonse, 68 N.Y.2d 283, 286, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986) citing Rinaldi v. Holt, Rinehart & Winston, 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977) ("It is a settled rule that expressions of an opinion false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions."); see also Held v. Pokorny, 583 F.Supp. 1038, 1040 (S.D.N.Y. 1984). And, although the boundary line between fact and opinion is not a precise one (Held, 583 F.Supp. at 1040; Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974)), in general, 'rhetorical hyperbole' and 'vigorous epithets' are expressions of opinion (see Letter Carriers, 418 U.S. at 284, 286), as are 'concepts whose content is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity.' (Buckley v. Littell, 539 F.2d 882, 894 (2d Cir.1976)). The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion (Steinhilber, 68 N.Y.2d at 290, 508 N.Y.S.2d 901, 501 N.E.2d 550 (1986); see also Gross, 82 N.Y.2d at 155, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993).
Dillon v. City of New York, 261 A.D.2d. 34, 38, 704 N.Y.S.2d 1, 5 (N.Y. App. 1999):
In evaluating whether a cause of action for defamation is successfully pleaded, the words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader, and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction (Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716 (1983). Courts will not strain to find defamation where none exists. (Cohn v. National Broadcasting Co., 50 N.Y.2d 885, 887, 430 N.Y.S.2d 265, 408 N.E.2d 672 (1980). Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable (Gross v. New York Times, 82 N.Y.2d 146, 152-153, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993); Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 244, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991)).
DeAngelis v. Hill, 847 A.2d 1261, 1268 (N.J. 2004):
The 'content' analysis requires courts to consider the 'fair and natural meaning that will be given to the statement by reasonable persons of ordinary intelligence.' (quoting Romaine v. Kallinger, 109 N.J. 282, 290, 537 A.2d 284, 288 (1988)). The use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are to be discouraged, but such comments are not actionable. Id. at 529-30, 643 A.2d at 978-79. Courts are required to differentiate between defamatory statements and 'obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse.' Id. at 530, 643 A.2d at 979 (quoting Rodney A. Smolla, Law of Defamation, § 4.03, at 4-10 (1986)).
Lowinger v. Jacques, 204 A.2d 175, 612 N.Y.S.2d 18 (N.Y. App. 1994):
We find that the offending statements are nonactionable because they were merely expressions of opinion (see, Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550), and also because, while offensive, they amounted to nothing more than mere insult, not to be taken literally and not deemed injurious to reputation (DePuy v. St. John Fisher College, 129 A.D.2d 972, 514 N.Y.S.2d 286 (1987)).
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)):
Abusive epithets, vulgarities and profanities are nonactionable. Rodney Smolla, Law of Defamation § 4.03, at 4- 09 to -10 and § 6.12[10], at 6-52 (1991); see cases cited therein. The ad hominem nature of such language easily identifies it as rhetorical hyperbole which, as a matter of law, cannot reasonably be understood as statement of fact. Clearly falling into this category are Hustler's statements characterizing Dworkin as: 'little guy, militant lesbian feminist,' a 'shit-squeezing sphincter in her own right,' 'one of the most foul-mouthed, abrasive manhaters on Earth,' a 'repulsive presence,' 'a cry-baby who can dish out criticism but clearly can't take it,' 'Spence's foaming-at-the-mouth client,' and 'a censor.' Under prevailing constitutional First Amendment safeguards, that language cannot, as a matter of law, form the basis for a defamation claim.
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).