Language is subject to levelling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. When plantation owners held blacks in chattel slavery, when 100 years later governors declared "segregation now, segregation forever", everyone knew what a "racist" was. The strength of the image invites use. To obtain emotional impact, orators employed the term without the strong justification, shading its meaning just a little. So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings. In daily life "racist" is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as [plaintiff] did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and [defendant] has not relied on any such implication.
- Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988)
[Plaintiff] claims that the letter here accuses him of being racist and bigoted, and of impeding the University's affirmative action policy, and that the letter implies undisclosed defamatory facts which [Defendant] asserts to be true. However, the language of the letter, and particularly its use of the epithet "racist," does not have the tone of a reasoned accusation, but rather is more like the emotional rhetoric characteristic of debate in this area. One decision has noted that the term "racist" has no precise meaning, can imply many different kinds of facts, and is no more than meaningless name-calling, not actionable under Illinois state defamation law. [Citing Stevens, above] That court observed: "Accusations of 'racism' no longer are 'obviously and naturally harmful.' The word has been watered down by overuse, becoming common coin in political discourse." ( Id . at p. 402.) Stevens concluded that accusations of racism by members of the Black community directed at a White principal were not actionable defamation under Illinois state law.
Another decision found the charge of "bigot,'" in context, mere rhetoric, since it was found in an exaggerated attack on the plaintiff noting his unfitness to shine another's shoes and expressing the opinion he should be "exiled to sagebrush country with other 'skunks and coyotes.'" ( Sall v. Barber (Colo.App. 1989) 782 P.2d 1216, 1218.) The court concluded that a fair reading of the letter in question would not lead a reasonable reader to infer that it is based on undisclosed defamatory material. ( Id . at p. 1219.) In fact, the court said the letter was clearly based on previously published material concerning an ongoing dispute. ( Ibid .) The situation here is similar in that [Defendant's] letter plainly refers to and is primarily based on the known fact that [Plaintiff] cancelled the Filipino dinner.
...
Focussing on the language of [defendant's] letter here, we believe that the audience to which it was addressed and circulated would not reasonably believe that it implied or was based on undisclosed factual accusations. We reach this conclusion both because of the emotional and angry tone of the letter, which does not imply reasoned debate, and also because its actual accusations are imprecise and difficult if not impossible to verify. For example, the statement that "Crown College is extremely racist, a growing campus view held by people of color and by enlightened faculty, staff, students and campus administrators" is incapable of demonstration, since terms such as "racist" or "enlightened" lack precise definitions. Also it is not possible to prove Vandenberg's status in the campus community with any precision . . . The characterization of [plaintiff's]action as an attempt to "punish" young Filipino students is purely opinion, resting on the disclosed fact of his decision not to participate in the dinner. An "incredible level of bigotry" is imprecise and exaggerated. Vandenberg argues that the reference to affirmative action means that he impeded the University's affirmative action program, but "affirmative action" is itself an exceptionally imprecise term which lacks uniform understanding.
We do not condone in any way the content and tone of the letter in question. But we observe that far worse has been found within the penumbra of First Amendment protection. (Some of the more pungent examples of "unfair, intemperate, scurrilous and irresponsible charges" which have received constitutional protection are detailed in Justice Gardner's classic decision in Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal.App.3d 49, 51-52 [158 Cal.Rptr. 519].) Restating, again, the description of this Headnote.the test of constitutional protection - "whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion" ( Moyer v. Amador Valley J. Union High School Dist. , supra , 225 Cal.App.3d at p. 724) - we hold that this unreasonable, emotional and angry letter cannot reasonably be understood as implying any facts, that it is more opinion than fact, and as such is not appropriate for jury determination. Since it is also part of the rhetoric generated on an explosive topic of public concern, namely, racism on the college campus, an area entitled to constitutional protection, and since we do not think any reasonable reader would take it for a reasoned factual accusation, we conclude that is not an actionable defamation and that it is constitutionally protected expression. Defendants were therefore entitled to summary judgment in their favor.
- Kimura v. Superior Court, 230 Cal. App. 3d 1235 (1991).
Re: liability of non-speakers (including online operators) for the speech of other parties: take a good look at the Communications Decency Act, 47 U.S.C. Section 230(c)(1).
Disclaimer: This information is cited for informational/discussion purposes only and does not constitute legal advice to anyone who might read this post.
PS "Legal council"? And suddenly, I am picturing a bunch of lawyers at the Council of Elrond.
ETA To add another relevant excerpt to the second case.