The Yale Daily News reports:
Members of the Yale Women’s Center board threatened to initiate legal action Sunday after discovering a photograph posted on Facebook.com depicting 12 Yale students affiliated with the Zeta Psi fraternity posing in front of the Center with a sign reading “We Love Yale Sluts.”
12 frat boys stood in front of a building with a sign that said “We Love Yale Sluts,” so the occupants of that building feel entitled to sue…. for what? Defamation and sexual harassment. I will discuss the defamation claim (I’m not qualified to discuss the sexual harassment claim).
The defamation claim is doomed. In order to have a valid defamation claim you must have:
- A false statement of fact
- About the plaintiff
- That harms the plaintiff’s reputation
False Statement of Fact?
For most of our history, stating or implying that a woman was unchaste would give rise to a claim for defamation per se. In fact, in recent history, a number of courts have specifically held that describing a woman as a “slut” is defamatory per se. See, e.g., Bryson v. News Am. Publs., 672 N.E.2d 1207, 1221 (Ill. 1996); Howard v. Town of Jonesville, 935 F.Supp 855, 861 (W. D. La. 1996) (stating that a woman is “sleeping with everyone” at her place of employment and is incapable of performing her job duties “would appear to be defamatory on its face”) (punctuation and footnote omitted); Smith v. Atkins, 622 So.2d 795, 800 (La. Ct. App. 1993) (calling a woman a “slut” is defamatory per se).
However, I believe that this theory is a throwback to the days when women were essentially the sexual property of their controlling male. A daughter who was unchaste became less valuable to her father, and a wife that was unchaste was less valuable to her husband.
Times they are a changing…
In 2005, an ex-girlfriend of KISS lead singer Gene Simmons sued after VH1 ran a “rockumentary” in which she was portrayed, she claims, as an “unchaste woman.”
The plaintiff, Georgeann Ward, said that a portrayal of her as promiscuous was defamatory. The defendants argued that “changing social mores could affect how certain sexual conduct is viewed by the community, and that what was defamatory at one time may no longer be the case.”
While the New York state court refused the defendants’ motion to dismiss the lawsuit, the judge did suggest that the proper “legal authority or social science data” might convince a court that saying a woman is promiscuous is no longer automatically defamatory. The two sides have since settled, but I believe that this is an accurate portrayal of modern thought. Things might be different in Mississippi or other third world jurisdictions, but a case brought in Connecticut (where Yale lies) would likely be examined through 20th century, and not antebellum, eyes.
Professor Lisa Pruitt of the University of California at Davis School of Law said that although it might be more difficult for a woman to sue today when she is defamed in a sexual manner, the change in the law is “a net gain for women because it signifies, through law’s expressive function, that women’s most important attribute is no longer their sexual propriety.” (source)
Accordingly, it would be awfully ironic to hear counsel for the Yale Women’s Center arguing that defamation law should stop its march forward and that a sexist standard should be applied to their suit.
Absent such a bold maneuver, this element would probably wither under scrutiny as a statement of protected opinion.
What is the standard for someone to accurately and factually be described as a slut? Clerks suggests that if a woman performs oral sex on 37 men, that this might be the line. I really don’t know. I think that most women would say that the line is well below 37. Then again, I wouldn’t really call any woman a slut (unless it was a term of endearment – some women giggle when you call them that). I just don’t make value judgments about someone’s sexuality. If a woman or a man is promiscuous and they are happy — they can be a slut if they want, or not.
In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson v. News Am. Publs., 672 N.E.2d at 1221; Howard v. Town of Jonesville, 935 F.Supp at 861; Smith v. Atkins, 622 So.2d at 800.
“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).
The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).
Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.”
About the Plaintiffs?
Lets say that the Plaintiffs get past that hurdle. I have seen so-called “prestigious” lawyers file more baseless lawsuits and get quite a lot of mileage out of them.
The second problem this case would encounter would be the lack of identification. You can’t sue for defamation unless you are identified by the defendant.
There is a legal concept known as “group libel,” but I doubt that it would apply in this circumstance. While there are no hard and fast rules for how large of a group is too large, the general rule is that if a group is larger than 25, chances are there will be no “identification,” sufficient to sustain a libel claim. Conversely, if the group is smaller than 12, then it is small enough for a group libel theory to stick. There are cases that buck these trends, but most of them are old, outdated, and no longer good law.
Harm to the Plaintiffs’ Reputation
I don’t want to seem lazy here, but I am just having a hard time understanding how any potential plaintiff in this case would prove harm to their reputation. However, to backtrack to point number 1 supra, if the Yale Women’s Center wants to persuade the court to adopt the victorian standard, and argue that their vaginae belong to their fathers, and their fathers’ investment in their education is now damaged, they wouldn’t need to prove actual damages — the statements would be defamatory per se.
The Sexual Harassment Claim
I don’t specialize in sexual harassment law, so I might be wrong here, but I don’t think that sexual harassment is something you can sue a classmate for — just an employer. Yale itself probably has a sexual harassment policy that would apply. I hereby open the floor to anyone who might be able to chime in on that claim.
How about the moral issue?
I don’t know… shouldn’t people be allowed to be young and dumb? I mean, a group of boys acting like juvenile idiots? That’s what a fraternity is (and why I didn’t join one in college). I’m not saying it is right, and I made different choices, but are liberal schools so fixated on imposing a thought crime standard that they are teaching women that bad jokes need to be met with lawsuits? Worse than that, lawsuits that will require feminists to ask a (presumably male) judge to protect them with a victorian legal standard?
I could go on, but I won’t even try to be more eloquent about this issue than Lisa Zhu, author of Education, not litigation
Yale’s Women’s Center isn’t helping address sexism when it threatens to sue students into submission.
For those of you unfamiliar with the incident, here are the facts. Essentially, the current pledge class rallied outside the Yale Women’s Center one night, chanting “Dick! Dick! Dick!” in some absurd parody of the classic elementary school “Penis Game.”
This ruckus deterred one Women’s Center board member from entering the building. Further conflicts ensued when photographs of the event surfaced on Facebook, showing the same boys still standing in front of the Women’s Center, holding a giant sign proclaiming, “We Love Yale Sluts.”
The media storm escalated in the following days, with lawyers offering pro bono legal services to the Women’s Center, and Zeta Psi issuing a formal apology in the Yale Daily News. I must say, as a modern woman, I would be rather irked if the sign had read, “We Love Penn Sluts.”
But although I fail to see the humor in the boys’ actions, I can’t help but be disappointed in the way the Yale Women’s Center is addressing the issue.
Instead of engaging Zeta Psi and other fraternities on campus in productive dialogue about the problem, the Center’s directors are attempting to sue these students into sensitivity and submission.
One of the organization’s representatives, who refused to be identified by name, told me, “At the moment, we’re not really seeking any dialogue with fraternities.” (source)
Not seeking dialogue. Naturally. Doing so might expose you to charges that, well, maybe you should just lighten up a bit? Not because the incident doesn’t matter. It does. The frat boys behavior was stupid. But, if you want to change that behavior, a lawsuit isn’t going to do it. Dialogue will.
And while I agree that policy changes in the Greek pledge process may reduce the number of offensive incidents, top-down enforcement without grassroots understanding can foster resentment and rebellion.
Certainly, the student reactions to the Women’s Center’s actions have not been entirely cuddly. Yale freshman Deniz Yildiz told me that the Center’s actions were “a little bit reactionary to just something that was completely an isolated incident.”
“Not only does [a lawsuit] look bad for our university but it causes a divide in our student body,” she said.
Even worse, litigation would prove ineffective in achieving the Center’s goals and might even be counterproductive. As Penn Women’s Center director Michele Goldfarb said, “I think what you risk with a lawsuit is making the offenders heroes because people are going to end up rallying around them.”
As far as any lawyer who offered the Women’s Center free legal services goes, I question the integrity and ethics of any lawyer who would be willing to file a defamation suit under these facts. Of course, I know at least one lawyer in New Haven who never let integrity and ethics get in the way of a good opportunity to jump on a liberal bandwagon case.
Of course, on the other hand, I wouldn’t offer free defense services to the frat. Any group of kids who a) can pay Yale tuition, and b) can pay fraternity dues, don’t need free legal representation.
Rich brats should have to pay their lawyer. I’m sure that their parents can afford it.
Of course, if both the frat boys and the offended women had parents that taught them anything, both sides would be acting far differently.