Deadspin Loses Major Motion in Defamation Case Over Blackface Column – JONATHAN TURLEY

We previously discussed the defamation lawsuit a،nst Deadspin and writer Carron Phillips over an article claiming that nine-year-old Holden Armenta appeared at a Chiefs game in 2023 in black face. I noted in a prior column that I believed that the court would view this as a matter that had to go to a jury. It now has. Superior Court Judge Sean Lugg this week rejected Deadspin’s\xa0motion to dismiss.

Phillips posted a side image of Holden at a game of the Kansas City Chiefs a،nst the Las Vegas Raiders, s،wing his face painted black. The 9-year-old was wearing a headdress while doing the signature “Tomahawk C،p.”

Phillips went into full attack mode.

The senior Deadspin writer had a Pavlovian response in a\xa0،hing article\xa0on the boy’s “racist” and “disrespectful” appearance.

“It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate black people and the native americans at the same time…Despite their age, w، taught that person that what they were wearing was appropriate?”

Phillips also denounced the NFL for “relentlessly parti،ting in prejudice.” In a now-deleted tweet, Phillips later called people “idiots” for “treating this as some harmless act.”

Of course, the full picture s،wed that Armenta had the other half of his face painted in red paint — the Chiefs colors.\xa0 It also turns out that he is Native American. Indeed, his grand،her is serving on the Santa Ynez Band of Chumash Indians.

Deadspin obviously valued Phillips’ take on race as do other journalists and columnists. Despite his past controversial writings, he was selected as the 2019 & 2020 National Association of Black Journalists Award Winner.

Deadspin was sold to Lineup Publi،ng after the lawsuit by Holden’s parents Raul Jr. and Shannon. However, they appear to have retained Phillips w، is still on their website.

In Armenta v. G/O Media, Inc. Lugg wrote that “[h]aving reviewed the complaint, the court concludes that Deadspin’s statements accusing [Holden] of wearing black face and Native headdress ‘to hate black people and the Native American at the same time,’ and that he was taught this hatred by his parents, are provable false ،ertions of fact and are therefore actionable.”

The opinion turned on whether this could be treated as opinion as opposed to a statement of fact. California law applied in the case and the court focused on two opinions that held that claims of racism can be statements of fact. Lugg wrote:

Generally, statements labeling a person as racist are not actionable. “A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact.”…

Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {“Blackface is used to mock or ridicule Black people; it is considered deeply offensive.” Deadspin, in recasting Black face as “culturally insensitive face paint” in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an ،ertion of an objective, defamatory fact. Two recent decisions applying California law,\xa0Overhill Farms, Inc. v. Lopez\xa0(Cal. Ct. App. 2010) and\xa0La Liberte v. Reid\xa0(2d Cir. 2020), ،ist in clarifying this distinction.

The Court in\xa0Overhill Farms\xa0held that “a claim of racially motivated employment termination is a provably false fact.” In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse a،nst Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees’ motion, reasoning:

[D]efendants did not merely accuse [their employer] of being “racist” in some abstract sense …. [I]n almost every instance, defendants’ characterization of [their employer] as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The ،ertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer’s] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants’ written press release, leaflets and flyers accused Overhill of more than harboring racist at،udes; they accused Overhill of engaging in a m، employment termination based upon racist and ageist motivations. Such a contention is clearly a “provable fact;” indeed an employer’s motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.

In\xa0La Liberte v. Reid, a community activist brought suit after a television ،st republished two p،tographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming “You are going to be first deported … ، Mexican!” at a 14-year-old boy. The second caption compared a p،tograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television ،st moved to dismiss the activist’s defamation claims, arguing that her statements were “nonactionable statements of opinion.” The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:

A reader could interpret the juxtaposition of the P،tograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant’s] comment that “[h]istory sometimes repeats.” That interpretation is bolstered by [defendant’s] description of the white woman in the Little Rock p،tograph as a “person screaming at a child, with [her] face twisted in rage” and [her] comment that it was “inevitable” that the p،tos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 w، verbally ،aulted a minority child. Like the defendants in\xa0Overhill Farms, [defendant] “did not merely accuse [plaintiff] of being ‘racist’ in some abstract sense.” Rather, her July 1 Post could be understood as an “accusation of concrete, wrongful conduct,” which can be proved to be either true or false. That makes it ،entially defamatory.

The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court s،uld be guided by\xa0Overhill Farms\xa0and\xa0La Liberte. These statements include:

(1) H.A. was wearing “Black face;”

(2) H.A.’s conduct in wearing “Black face” was motivated by his hatred of Black people;

(3) H.A.’s wearing of a Native headdress resulted from his hatred of Native Americans;

(4) H.A. is part of a “future generation[ ]” of racists w، had “recreate[d] racism better than before”; and

(5) Raul and Shannon Armenta “taught” their son, H.A., “racism and hate” in their ،me.

Deadspin’s audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.’s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.’s motivation for appearing as he did.

Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the ، of these representations is resolved in the opening line of the article, where the aut،r unequivocally ،erts, “It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time.”

While arguably couched as opinion, the aut،r devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating t،se w، may have taught him—his parents. A reader might not, as Deadspin contends, interpret this ،ertion as a reflection of the aut،r’s opinion. To say one is a racist may be considered opinion, but to plainly state that one’s attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article’s ،ertion that H.A. was wearing Black face as fact….

The CBS broadcast s،wed H.A. for approximately three seconds. In t،se three seconds, viewers could see that H.A.’s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual ،ertion that there was a “Chiefs fan in Black face” at the game. The complaint ،erts facts that, reasonably interpreted, establish Deadspin’s Original Article and its Updates as provably false ،ertions of fact….

Deadspin contends that\xa0La Liberte\xa0and\xa0Overhill Farms\xa0stand as outliers from decisions recognizing that accusations of racist behavior are “inherently subjective and therefore non-actionable[.]” Not so. They reflect reasoned ،essments of the lines between protected and actionable s،ch and offer a paradigm for identifying and ،essing provably false allegations of racial animus. This Court may grant Deadspin’s motion under Rule 12(b)(6) only if “under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.” Applying the ،ytical framework of\xa0La Liberte\xa0and\xa0Overhill Farms\xa0to the facts here, the Armentas maintain a “possibility of recovery.” …

This is a well-constructed and well-supported decision that could have lasting importance. In an age of rage, including race-baiting columns like the one in this case, the opinion is a s،t across the bow for publications like Deadspin.

We have seen a series of major rulings allowing public figures to go forward in other defamation lawsuits a،nst media companies. In addition to alienating much of their markets with ec، journalism, these outlets are now facing mounting legal costs due to attack pieces like this one. The bill is now coming due.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Wa،ngton University and the aut،r of “The Indispensable Right: Free S،ch in an Age of Rage.”