‘Dem’s Fighting Words, or Maybe You Just Defamed Me, Or Was that Just Derogatory or An Opinion? HELP! I’m sure I’ve been insulted. Haven’t I?
I’m going to be doing a series of posts that would make my friend Mignon Fogerty aka Grammar Girl proud because they’re going to center on the sometimes-subtle differences in how the law uses words. Today’s post looks at when what you say crossed the line from just annoying to legally actionable to something that can by the mere act of utterance of them cause…. well, a fight.
I was reading Jim Butcher’s novella The Law recently and during a negotiation Harry Dresden, the main character, warns Tripp Gregory that he is using “fighting words.” While, Harry Dresden is fiction (or is he?), “fighting words” is a legal concept in the United States. Shortly after I finished that story, a friend got bashed on social media for “defamation” when he posted only verifiable facts or his opinions. He took the post down. Then I was consulted about another social media post where a business was being accused of criminal conduct. I believe in the power of three. When all these things happen in a three-week period? I knew it was time to write about the different types of insults under the law. Why? Because there’s a lot of confusion on when words are defamatory or are just “harmless” opinions.
If you’ve never read any of Jim Butcher’s Harry Dresden series, I highly recommend it. This is a spoiler free excerpt (with a small amount of trimming) from The Law to illustrate the concept of fighting words and why these terms: derogatory, defamatory and fighting words, might just get confused. To set the scene, Harry Dresden, Chicago’s only wizard for hire, is working for Maya, who runs a tutoring program that helps disadvantage children. Her former business associate, Tripp Gregory, sues her for a percentage of the profits. Tripp is represented by Talvi Inverno, Esq. The point of view is Harry’s and they are trying to negotiate a settlement. Tripp has just made an unreasonable
BE AWARE: There is some profanity and an offensive reference to sex workers that I can’t avoid because doing so negates using this quote as an example.
“That’s… not even insane as much as humanly asinine,” Maya responded calmly. “If I don’t have a quarter of a million to give you, I certainly don’t have half a million.”
“That’s my fuckin’ price,” Tripp responded his tone nasty, his reptile eyes focused on Maya. “You little whore.”
I came up out of my chair.
Inverno rose to hold a hand out toward me, his tone warning. “Dresden.”
I held up my own hand to Inverno, a placating gesture, but I didn’t look away from Tripp. “Please advise your client,” I said in a very calm voice, “that if he continues in such insults against Maya, I’m going to consider them fighting words, and I’m going to hit him in his big, fat mouth.”
Tripp scowled at me. “The fuck does that mean?”
Inverno stared at me for a moment and then a little malicious smile barely touched the corners of his mouth. “It means that if you insult the lady like that again, he will consider doing so viable grounds for physical attack, and will presumably follow through,” Inverno replied.
Tripp laughed. “In front of my attorney? That’s a fuckin’ slam dunk assault charge.”
…. That wasn’t how fighting words worked in law, but (Inverno) let it play out.
“While true, there’s at least some chance that he can get away with it legally afterward.” Inverno glanced at Tripp calmly.
You’ll have to read the book to see if Tripp can hold his tongue or if Harry gets to punch him. Oh, and, of course, to see if Harry is able to help Maya. Definitely, worth a read or listen. You can find the novella at Amazon.
Anyway, Tripp uses “fighting words” when he calls Maya a sex worker. Those words were also defamatory, slander, and derogatory. However, Tripp’s statement wasn’t an opinion or libel. Given that the same statements can fall into more than one category, it’s not surprising a lot of confusion exists.
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SCHEDULE AN APPOINTMENTWhat are the claims for publishing false statements?
The labels for defamation used to have more nuances than they do now. Initially, there were three names for making false statements of fact about someone: libel, slander and defamation. The differences centered on how that information was “published” or transmitted. “Slander” is a defamatory statement that’s spoken. While “libel” is one that’s made in writing. The catch-all term is “defamation.” Most states have done away with the separate definitions since they aren’t very useful and refer to them all as “defamation.”
What is defamation?
Generally, defamation is an untrue statement of fact about an individual that causes injury to that person’s reputation and that statement is made to another person (i.e., “published”). Even then, the issue can be more complicated. Like most things in the law, there are exceptions to the simple rule. Sadly, we’re going to leave Harry Dresden and his potential punching bag, Tripp Gregory, for the next example.
The statement must be published.
If Xylase tells Caloah, “Zog stole money from Zin” then Xylase may have defamed Zog if Zog didn’t steal from Zin. You need both parts – an untrue statement and publication of that statement to a third-party for defamation to have occurred. If Caloah and Xylase work in the same company and are having this conversation in the course of their job, then the statement probably isn’t defamatory because it likely wasn’t published. Caloah and Xylase are acting on behalf of their employer in communicating with each other. Interoffice communications are generally considered as being made by the same “person” because companies are “people” in their own right. In that case, “publication” may not have occurred.
A third-party must have seen or heard the statement. Similarly, if Xylase tells Zog, “You stole money from Zin,” Xylase has not defamed Zog because no one else heard the accusation, but Xylase may have made a derogatory statement or used fighting words. We’ll get to that in a moment.
Generally, the statement must be a false statement of fact
A defamatory statement must be false. Assuming none of the exceptions apply, if Zog didn’t actually steal the money, then Xylase will have defamed Zog if Xylase tells Caloah that Zog stole money from Zin. In some limited cases, or if Zog is a public figure there is a “reasonable belief” exception. So, if Zog didn’t steal the money, but Xylase reasonably believes they did then Xylase may not have defamed Zog.
Now, in the example I picked, Xylase’s belief isn’t going to matter since Xylase accused Zog of a crime. If the statement is false, then Xylase absolutely defamed Zog because some accusations are bad enough that they are defamatory per se – meaning defamatory without any bad intent on the speaker’s part.
What is defamation per se?
Defamatory “per se” statements are ones: (1) accusing a person of a crime of “moral turpitude;” (2) having a contagious, infectious, or loathsome disease: (3) being unchaste or engaged in sexual activity; or (4) engaging in conduct that is incompatible with the proper conduct of their business, trade or profession. “Moral turpitude” is a somewhat squishy legal concept as it doesn’t have a precise meaning. Again, generally speaking it’s a vile or depraved act, one that the imputes a general sense of untrustworthiness to the person, or one that gravely violates the sentiment or accepted standards of the community. A good rule of thumb is that if the conduct shows the person to be of “bad character” then it is likely of one of “moral turpitude.” Embezzlement would be an act of “moral turpitude.” If the statement is one that is “per se” defamatory then the person who it is about (i.e., the plaintiff) won’t have to prove they suffered a monetary loss (i.e., damages). The legal injury is assumed. The downside to a “per se” case where you don’t show a monetary loss is your damages are established by the court or jury based on what they believe is “fair” to compensate you for the loss of your reputation. The jury can award as little as $1 or up to whatever statutory cap, if any, exists in your state.
So, I’m okay if I say “I think” before the statement?
Ah, no.
While a defamatory statement is one of fact, merely adding “I think” to the start of your sentence doesn’t convert one of fact to an opinion and take it out of the realm of defamation. A statement of fact is anything that can be proven. If I change the statement above to “I think Zog stole money from Zin,” the main part of the sentence “Zog stole money from Zin” can still be empirically proven. Either Zog stole the money or they didn’t. On the other hand, the statement “Zog’s tie is ugly” can’t be empirically proved because whether the tie is ugly is not readily quantifiable, i.e., a matter of taste. Some people are sure to like Zog’s tie, even if it is an orange, purple and green day-glow monstrosity. The fact that I think those colors should never be mixed together in those shades and in that pattern doesn’t mean everyone agrees. Apparently, Zog didn’t agree (or is seriously humoring whoever gave them the tie). Anyway…
The point is adding “I think…” in front of a statement of fact doesn’t suddenly make a statement an opinion and protect you from a defamation claim.
If what comes after “I think” is something that could be proven then be mindful that what follows needs to be true or you are at risk of a defamation claim. This risk is why news agencies report that a person is “alleged to have committed,” is “accused of committing” or is “charged with committing” a crime. Those statements are factually true, the defendant is “alleged,” “accused” or “charged” with committing and they don’t imply, at least in America, that the person actually committed the crime.
What is disparagement?
As you may have seen in the 2022 Depp v. Heard trial, defamation is often difficult to prove because it requires the successful plaintiff to prove that the statement is false. Had Heard convinced the jury that Depp had struck her, even once, while they were married then Depp could not have won his defamation case. Also, remember in that case, that Heard didn’t outright say that Depp abused her (she never used his name), but her statements in the articles led to the clear inference that Depp had, and were defamation per se, case i.e., she accused him of a crime – assault. Proving something didn’t happen is always more difficult than proving something did happen. If the defendant comes up with even one example that shows the statement might be true OR, in the proper case, the defendant had a good faith basis for believing it was true (if the statement wasn’t defamatory per se) then the plaintiff loses. Also, because defamation doesn’t cover opinions, there’s a whole host of negative things a person can say about another person or a company without risk of crossing this particular line. Relying on someone to avoid defaming you might not be enough protection. The difficulty in proving a defamation case and the gaps in protection has given rise to adding anti-disparagement provisions to agreements.
Why are anti-disparagement clauses so popular?
Pretty much any negative statement can violate an anti-disparagement provision. According to the Cambridge Dictionary, “disparage” means “to criticize someone or something in a way that shows you do not respect or value” them.
My statement that Zog’s tie was ugly?
Disparages the tie, and likely Zog for wearing it.
A statement that “The management at Hero’s Journey Unlimited couldn’t find its way to a profit even with a mentor leading it” would disparage Hero’s Journey Unlimited.
In other words, while opinions can’t support a claim for defamation, they can support a claim for violation of an anti-disparagement clause.
There are two potential saving graces here. First, the clause, depending on the facts of any given case, may be too broad or vague to be enforced, or it may violate the First Amendment. Reported cases where a court has had to decide whether these provisions are enforceable on the rise. Generally, non-disparagement provisions in settlements with the government are disfavored and are less likely to be enforced. Second, unlike claims for defamation, there is no class of disparagement where a plaintiff would be excused from proving their damages. So, while my criticizing Zog’s tie would be derogatory and a technical breach of a non-disparagement clause, it’s highly unlikely that Zog would suffer any damages from the statement.
How can I ensure a non-disparagement provision is an actual deterrent?
As I noted above, it may be hard to prove that a disparaging statement actually harmed you. A lot of the Depp v. Heard trial was spent trying to quantify what the loss of the Pirates of the Caribbean franchise meant for Depp’s earning capacity over the rest of his life or what Heard’s star rating and earning capacity was for her lifetime. Even then, a jury could have ignored all that testimony and awarded Johnny Depp a total of $1.00, and been within its rights. Proving damages from mere disparagement may be even more difficult. A liquidated damages clause avoids the need for this type of testimony and the inherent risk of a very uncertain judgment amount. Liquidated damages are also only available when actual damages aren’t easily quantifiable, or are impossible to determine. One way to prevent the other party from ignoring a non-disparagement clause is to agree on the cost of a violation with a liquidated damages clause.
Let’s say, Zog and I start a new business deal for a high-fashion tie line and the deal goes sideways. In our settlement Zog wants to continue the business. Zog knows that negative comments about the tie line could hurt the business and it would be hard to show damages since the new company never had any profits to “lose” based on the negative press. How does he ensure I actually keep my mouth shut? He insists on a non-disparagement clause with a liquidated damages provision.
Since it will likely be impossible to show legally recoverable damages for any negative opinions I say about the new tie line, Zog and I can agree in advance that if I make a disparaging comment, then I’ll pay Zog a set amount. This agreed payment is known as a “liquidated damage.” The amount has to be “reasonably related” to the damage Zog is likely to actually suffer based on my conduct but not be so high to be a penalty. Liquidated damages are particularly useful in establishing reputation damages. In my settlement agreement with Zog, we could agree that I won’t disparage the tie business or tie designs and if I do, then I’d pay a fee of $10,000 per statement. With this type of non-disparagement provision, I know what I can’t do (make negative statements about the business or ties) and the price I’ll pay for each negative statement ($10,000).
If you are going to agree to a non-disparagement clause, ensure that it is narrowly drawn to only address the specific issues. Often the party requesting the provision will want it to encompass any statements about the “company, its officers, directors, employees, shareholders, contractors…” One problem is the “who” portion of the clause is too broad. You likely won’t know who all those people are and can unintentionally violate it. Even if you know whom all those people are when you sign the agreement, you won’t as the company grows. Second, the “what” portion of the clause is too broad. My settlement with Zog is about the tie business. If I want to say, “Zog has terrible taste in music,” then I should be able to as it’s unrelated to our business dealings. Try to limit the scope of a non-disparagement clause whenever possible.
And finally…
Was Harry right?
What are “fighting words”?
Harry Dresden warned Tripp Gregory that he was using fighting words when he called Maya a sex worker. Did Harry get it right?
Yeah, he likely did.
I saved this definition for last because in some ways these are the most fun and least relevant to today’s world. “Fighting words” are literally words designed to provoke a fight. Merrim-Webster defines them as “words which by their very utterance are likely to inflict harm on or provoke a breach of the peace by the average person to whom they are directed.” They are not protected by the First Amendment.
Calling someone a “whore” is likely to end up with a punch to the speaker’s “big, fat mouth.” Racial epithets are also likely to fall under “fighting words.”
Is the claim of “fighting words” the defense to an assault charge that Harry makes it out to be?
Probably not. So don’t go punching people.
Seriously.
Just. Don’t.
I’m sure I’ve been insulted.
Knowing exactly how to classify the insult slung your way is a cold comfort. The reality is you shouldn’t punch anyone in their “big, fat mouth” even when they use fighting words. Again, seriously, just don’t. Just remember, that if the insult is something that could be proven (or disproven) like an allegation that you bought a new car or consulted with an attorney or violated a particular law, then it’s a statement of fact and can be the basis of a defamation claim. If the statement can’t be proven, it’s an opinion and not defamatory. However, if the statement, even if it’s an opinion casts you in a bad light, it is likely derogatory. Unless you have a contract in place that prevents that person from making negative opinions or your state has an insulting words statute, it’s unlikely that merely insulting words are actionable. We’re all going to be offended and insulted at times. Unfortunately, that’s part of living. And even if someone’s hurling fighting words at you, the best course is to walk away.
The best rule, and the safest, is still the one we learned as kids:
If you don’t have something nice to say about someone, don’t say it.
Interested in our services?
If you would like assistance with this or any other compliance matter, please contact Nancy at N D Greene PC by clicking on schedule an appointment.
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