Can “Racist” Be Defamatory?

A curious argument posed in reaction to Oberlin College’s smear of the Gibson family in furtherance of its blind social justice agenda is whether calling someone a “racist” is a matter of opinion or fact. If the former, then it cannot be defamatory. If the latter, then it can.

The hybrid argument is that the generic characterization of “racist” is an opinion, while the characterization of “racist” based upon a discrete factual scenario is not. Here, because the actions of Gibson’s Bakery in calling the police on a black Oberlin student for shoplifting directly led to students, with the facilitation and encouragement of faculty and administration, acting in concert, provided the express basis for the accusation of racism, the judge denied summary judgment and the jury found the “racist” accusation defamatory.

As with many other words, such as “rape,” “racist” has become untethered from its definition. It no longer is understood to be limited to racial animus, but has expanded to include lack of sufficient racial empathy. Even more, racism to a certain cohort can be manifested in failure to make it one’s primary concern, suffering consequences (such as theft) as a sacrifice to the marginalized.

When viewed from that perspective, the cry that Gibson’s Bakery was racist by calling the police on a black student, who may have factually tried to steal from the store but should, to a sufficiently woke observer, have let it go rather than dialed 911 on a black kid, has certain validity. The question is how far one needs to go to avoid being characterized as racist. The answer is as far as the most passionate warrior decides, and few places are as filled with passionate warriors as Oberlin College.

That the students, and their administrative enablers, at Oberlin are passionate may be worthy of challenge, but does that make their assessment wrong? Or more to the point, isn’t the characterization of racist inherently a matter of opinion, and inherently outside the realm of defamation?

Calling people racist has become ubiquitous. It can be for good reason, bad reason or no reason. There seems to be no bottom to the rationalizations of the woke, and, indeed, critical race theory would appear to empower the most insipid among us to validly find racism under every rock, or the absence of a rock which impacts minorities and women most. There are just no limits to why, removing it from the purview of a fact-based epithet.

Evan Gertsmann argued at Forbes that calling the bakery racist cannot be an opinion because “It is difficult to think of a more harmful accusation against a business today than accusations of racism and the court rightly rejected that argument.”

But that makes no sense. There is no connection between the level of harm in a statement and whether it is an opinion. Some opinions can cause serious harm, and some facts cause no harm. The test of whether something is an opinion depends on whether it’s an opinion, not the level of harm.

There is no question that under certain circumstances, accusations such as “racist” (or rapist, as the #MeToo adherents can attest) can ruin a business. But does that make the accusation of “racism” any more factual than it would otherwise be? That crazy kids, a complicit college, lost their heads over the narrative doesn’t change the nature of the accusation, even if the consequences are dire.

Is the factual nature of an accusation of “racism” salvaged by connecting it to an objective factual basis?

Gertsmann claimed that “calling Gibson’s racist and accusing it of engaging in racial profiling right after the incident with the three students is clearly accusing it of specific wrong-doing.” Once again, specificity and facts are two different categories. If the protesters claimed that arresting a black student was racist, that’s still their opinion about the facts in the case even though it’s an opinion about a specific event. If, hypothetically, the protesters had falsely claimed that the owner yelled racial slurs and said black people were banned from the store (which obviously never happened), that would be a fact assertion potentially subject to a defamation claim.

He’s got a point. There are facts, objectively determined conduct that occurred. A black Oberlin student tried to take an item without paying for it. Gibson called the police about it, and the police arrested the student. But whether these facts constitute racism is a separate question. Granted, most rational people would say no, but they lack the sensibilities of Oberlin students, faculty and administration. Their view might be considered ridiculous, but even the batshit crazy adherents of critical race theory are entitled to their opinion, baseless as it may be.

The impact of wildly baseless, factually unfounded, accusations isn’t in doubt; that it caused enormous harm is very much a fact. But then, unproven, if not baseless, accusations by the unduly passion are doing grave harm to many these days, all in the name of social justice. Its warriors believe the damage to the innocent merely a price society must pay to compensate for its history of oppression. Others disagree. But then, that’s their opinion.

As words, accusations, shed definitions, their promiscuous use blurs the line between fact and opinion. This could be cured when President Warren issues an Executive Order precluding the arrest of any black person upon accusation of a white man, creating a clear demarcation of what is racist in the manner in which law is enforced going forward. But for now, there is law that limits racial discrimination to conduct that reflects animus toward a person based upon their race.

An accusation of racism against a person may well be an “opinion” from the perspective of an Oberlin dean, but the law still provides parameters that constrain the wildest definition in the most passionate imagination of a student at Oberlin. As Gibson’s Bakery called the police on a thief, who happened to be African-American and a student at Oberlin College, its actions are not, as a matter of law, racist. No matter what your opinion on the merit of the definition imposed by law, that’s the fact. At least for now.

25 thoughts on “Can “Racist” Be Defamatory?

    1. SHG Post author

      Given that I’m a racist, sexist, plus whatever else-ist cisheteronomormative white male, amirite?

  1. Scott Jacobs

    Won’t it be a problem on appeal that the bakery was actually able to show damages?

    1. SHG Post author

      Is consequential damages the test by which an accusation is determined to be factual or opinion? This is one of the unexpected problems arising from the untethering of definitions from words, that some people see it as “justice” to impose harsh consequences for unfounded but woke vagaries, and nobody is particularly troubled about whether the party suffering the consequences deserves to be destroyed for the sake of the cause.

  2. ThinkingMan

    One of the factual bases was this:
    The flyer given out at Gibson’s by protestors and the Dean of Students (apparently created with support of the College) claimed that Gibson’s had “a long history of racism and racial profiling”. Since the racial profiling part can be shown to be false, simply by looking at the police report on shoplifting at Gibson’s, the pamphlet can be considered to be defamatory.

    1. SHG Post author

      The “racial profiling” accusation is substantially more factual than the “racist” accusation, but this isn’t really relevant to the point of the post.

      1. ThinkingMan

        It is relevant to the case. That the College called Gibson’s racist is NOT the reason they were hit with 44 million-dollar verdicts.

        For the casual reader your post may appear to support that notion, since you take time to discuss it. Just want to point out that this was not the case.

        1. SHG Post author

          This is a law blog, for lawyers and judges, who are capable of focusing on discrete issues. Reddit might be more appropriate for the casual reader.

        2. Sgt. Schultz

          The title of the post is kind of a giveaway. While the Oberlin case is the vehicle to explore the question, the post is about the question, not Oberlin. There are plenty of other places to obsess about the case from various partisan perspectives. This isn’t one of them, and it seems you really don’t belong here.

          1. SHG Post author

            A couple subsequent comments were trashed for this reason, though I would like to give a HT to Legal Insurrection, which he mentions and links in one of the comments, for its detailed reporting on the trial. But he was incapable of grasping the distinction between the issue of this post and a generic partisan post about the case. Oh well.

  3. B. McLeod

    The traditional fact/opinion dichotomy may have made sense at one time, but it is a stranger in a strange land today, when nothing can be safely taken as a fact. Men are women, and women are men, and thousands of people are “literally, Hitler.”

  4. Mark Amery

    I am confused by why you suggest that the word “racism” was once defined to mean only racial animus, or that the law requires animus for an act to be considered racial discrimination.

    Suppose a hiring manager reckons that white applicants in their locale tend to turn out to be stronger candidates than black applicants, and therefore decides to filter applications by binning ones from black applicants the moment that he receives them. This hypothetical hiring manager is not motivated by “animus” as I understand the term, but his conduct is uncontroversially “racist” (as I understand the word), and in blatant violation of anti-discrimination law (as I understand it).

    Where do our understandings differ?

    1. SHG Post author

      I’m speaking of racial discrimination as the law recognizes it. You’re speaking of fuzzy crap floating in your head.

      1. Mark Amery

        No, I am questioning the specific claim that animus is a requirement for conduct to be considered racially discriminatory under the law.

        I’m not a lawyer, so maybe it is – but if so, then it seems like the law is using the word “animus” to mean something different from it’s plain English definition, since the prototypical example of employment discrimination (manager decides not to hire someone from a protected class because he thinks members of that class are generally less competent) doesn’t involve any “animus” in normal English.

        1. SHG Post author

          First, you’re confusing “disparate impact,” which is an evidentiary tool creating a rebuttable presumption in order to prove hidden animus (see Griggs v. Duke Power) with the underlying racial discrimination prohibited by law. Second, this isn’t a “let me spew whatever crap is floating around in my head and then you can teach me the law, Scott” blog.

          It’s fine that you’re not a lawyer, which was obvious, but keep that fuzzy crap in your head to yourself.

          1. Mark Amery

            No, I am not confusing discrimination and disparate impact, which I am entirely capable of distinguishing. If I’m misunderstanding something – which I’m not convinced I am – then it’s something other than that which you suggest here.

            But if asking questions here isn’t going to achieve anything besides drawing incivility, then I’ll remain confused and go on my way.

            1. Sgt. Schultz

              Who could have possibly seen this entitled dolt end up crying incivility because he didn’t get his demanded tummy rub. It’s your own fault for encouraging these assholes in the first place. Just trash the fools.

    2. Miles

      First, your “understanding” of animus is wrong and baseless. Your hypo hiring manager is acting with racial animus. Your question reflects your “understanding” of animus? Who gives a shit about your understanding of animus, whatever the hell that means, other than you?

      Second, notice how no lawyer here took issue with animus? Care to guess why lawyers take no issue that you, a non-lawyer, does? Maybe you, the non-lawyer, have no clue what you’re talking about and no business on a law blog arguing about it when it’s so basic to lawyers that none of them have your problem?

      Third, did anybody tell you that this blog that you read for free is also a free Q&A website to blithering idiots to ask stupid questions? Aren’t you the entitled little shit who, even though lawyers are all fine with a completely obvious statement of law, gets to interject your bit of non-lawyer stupidity into the mix?

      Fourth, your comment is posted, you get a response, and still you whine like an entitled little bitch that you’ve been treated uncivilly, where you get to read free, ask free and receive a response from a lawyer whose time you couldn’t afford if you sold a kidney?

      I would have trashed your pathetic butt, but Scott is a lot nicer than I am. It’s assholes like you that make SJ miserable for lawyers. Get lost, asshole. You contribute nothing here and never will.

  5. Ben

    If the ordinary meaning of the word “racist” is that the person habitually behaves badly to some people based on their race, then it’s a factual statement.

    If the ordinary meaning of the word is “someone I dislike and want to destroy”, then it’s opinion.

    Who decides what is the ordinary meaning of the word? Ordinary people: The jury.

    Oberlin and their ilk have tried very hard to strip the word of all meaning. They haven’t yet succeeded.

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