By Marc J. Randazza
Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.
Snyder accuses the WCP of spreading “lies, half-truths, innuendo, and anti-Semitic imagery” to defame him, seeking $2 million in damages. The amount is split between two claims, the first for defamation and the second for false light. The “anti-semitic imagery” he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder’s photograph in the WCP, which can be seen here.
No, your irony meter is not broken. It is actually reading 11. A guy who owns the Washington Redskins is complaining that someone created an allegedly racist drawing of him. And, anyone who thinks that “Washington Redskins” isn’t a bigoted term, I used to think the same thing. In law school, I was in a debate with a guy I’ll identify as “Steve B.” I was armed with my free-speech bona fides, and ready to pwn Steve in front of the whole class for being overly politically correct. With his opening shot, Steve looked at me and said “what would you think if they were called the ‘Washington Jigaboos?’ Because the way black people would feel about that is how Native Americans feel about ‘Redskins.'”
I immediately conceded. Steve was right. The debate was over.So, the owner of the Washington
On behalf of Native Americans, up yours, Dan Snyder. Up yours with a cactus grown in the driest part of the Navajo reservation.
But lets get back to the issue at hand:
Dave McKenna’s comprehensive compendium on Snyder’s questionable reputation, which gave rise to this lawsuit, is not the first time he offended Snyder’s sensibilities. Snyder paints a paranoid picture of McKenna as a conspirator, evidenced in his November 24, 2010 letter to the WCP — sent less than a week after McKenna’s article hit the streets. Because McKenna mentioned Snyder within the WCP and its blog 15 times in as many months, Snyder believed McKenna was attacking him to please his new bosses at Atalaya Capital, which acquired Creative Loafing and the WCP in August 2009. (source.)
Even so, it appears McKenna gave Snyder a fair shake. Before McKenna’s article was published, Snyder’s wife went to the local media to defend her husband. In an interview, she said her husband was now surrounded by ‘better people,’ and that he had ‘grown and he’s evolved.’ (source.) The offending article even begins with the words “[w]e’ve been told a New Dan Snyder walks among us”!
Nevertheless, lets not forget that Dan Snyder is a wealthy man. He is a fabulously wealthy man. And we all know that the fabulously wealthy often believe that they are above being criticized by the rabble — and when the rabble forgets it, they need only spread their ass cheeks, let a few filthy pieces of silver fall from their milk-fed buttholes, and some swine of a lawyer will be lying underneath, mouth agape, happy to catch what might dribble from the sphincter of privilege — their oath, their ethics, and free speech be damned.
In nicer words, this is a classic SLAPP suit — not filed because it has a chance of success — but filed because the cost of defending it will be punitive enough to remind the little people that people who can afford to use helicopters as personal transportation vehicles do not like to be made fun of or criticized.
The first sign that this is a SLAPP suit? You need go no further than paragraph 1. The complaint states “Mr. Snyder is a public figure. As such, he accepts the right of the public and the press to criticize him or to express personal dislike, whether or not such expressions are justified by the facts.”
In other words, Mr. Snyder is going to need to leap over the “actual malice” standard laid down in New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, the Supreme Court held that the First Amendment required that a public official libel plaintiff must establish, through clear and convincing evidence, that the defendant acted out of “actual malice.” That doesn’t mean that the writer must have acted out of malicious intent, but rather that the defendant published his words “with knowledge that it was actually false or with reckless disregard of whether it was false or not.” Later cases expanded this to encompass defamation suits by public figures, as well as public officials. See, e.g, Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323, 351 (1974).
Public figures can, occasionally, prevail under this standard. However, the bar is so high that unless the case is flawless, it is unlikely to go anywhere except down the “expensive to defend” highway. Snyder knows this. His attorneys know this. But Snyder is a wealthy man, and his lawyers don’t mind the taste of feces in their mouths, as long as they are licking the foul substance off of Snyder’s coins.
Lets take a look at Snyder’s claims under New York law. New York is very protective of free speech — especially where the news media is concerned. What constitutes a statement of opinion is broad, and can even embrace language that in other states may be defamation per se, such as calling another person “unprofessional.” See Amodei v. New York State Chiropractic Association, 160 A.D.2d 279, 280 (N.Y. Sup. Ct. App. Div. 2d Dept. 1990), aff’d 571 N.E.2d 79 (N.Y. 1991); Halegoua v. Doyle, 171 Misc. 2d 986, 991 (N.Y. Sup. Ct. 1997); Wait v. Beck’s North America, Incorporated, 241 F. Supp 2d 172, 183 (N.D.N.Y. 2003). (“Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion.”).
Despite Snyder’s melodramatic whining about McKenna’s negative opinion of him, even incendiary and inflammatory criticism of a subject is protected rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n v. Bresler, 893 U.S. 6, 14 (1970); Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 and 1169 (N.Y. 1993). Even heavily caustic attacks on public figures are afforded the highest level of Constitutional protection. Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).
The second cause of action is a bit trickier. While the language reads like a false light claim, there’s a wrinkle here: According to the Citizen Media Law Project, New York doesn’t recognize the tort of false light. Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff’d, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993) That leaves Snyder with the tort of defamation by implication, which remains a form of defamation and thus subject to the same attacks set forth in the preceding paragraph.
Nonetheless, as the owner of the Redskins, Snyder has access to lawyers and the money to pay for them, and can inflict quite a lot of pain onto the defendants. Furthermore, even if the WCP fends off these claims, Snyder has made it clear that anyone smaller than the WCP had better be worried — criticizing him is not without its significant costs.
Mr. Snyder has more than sufficient means to protect his reputation. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (source)
Snyder appears more butthurt than genuinely wronged. Unfortunately for him, or fortunately for us all, there still is no cause of action in the United States for intentionally butthurting a rich dude. Unfortunately for us all, win or lose, Snyder and his legal team just turned blew a cold wind across the free expression fruited plain.
J. Malcom DeVoy contributed to this post. Hat tip to Johnny Utah.