Only a total idiot would have filed a defamation case over the term “total idiot”

The Nebraska Supreme Court reminds us in Steinhausen v. Homeservices of Nebraska, 289 Neb. 927 (Neb. 2015) that rhetorical hyperbole is not actionable as defamation. I can assure you that total idiots nationwide will fail to get the memo.

In this case, someone referred to a home inspector as a “total idiot.”

Nitz argues that in the context of the Hotsheets— which she refers to as a place for HomeServices agents to “express their opinions without pulling punches”38—the phrase “total idiot” is not “a factual statement that [Steinhausen] is mentally defective.”39 Steinhausen responds that “[i]diocy is verifiable” and “can be defined and proved.”40 He notes that “idiot” is defined in one dictionary as “a stupid person or a mentally handicapped person” and asserts that he “is neither stupid nor mentally handicapped.”41 (Op. at 939)

The Nebraska Supreme Court correctly analyzed its responsibilities in the case — something that I find lacking pretty often in trial courts nationwide.

The threshold question in a defamation suit is whether a reasonable fact finder could conclude that the pub- lished statements imply a provably false factual assertion.44 Statements of fact can be defamatory whereas statements of opinion—the publication of which is protected by the First Amendment—cannot.45 Put another way, “subjective impres- sions” cannot be defamatory, as contrasted with objective “expressions of verifiable facts.”46 Distinguishing the two pre- sents a question of law for the trial judge to decide.47 In mak- ing this distinction, courts apply a totality of the circumstances test.48 Relevant factors include (1) whether the general tenor of the entire work negates the impression that the defendant asserted an objective fact, (2) whether the defendant used fig- urative or hyperbolic language, and (3) whether the statement is susceptible of being proved true or false.49 (Op. at 940)

The court then explained Rhetorical Hyperbole.

As noted, whether the language is hyperbolic is relevant to distinguishing fact from opinion. Rhetorical hyperbole— “language that, in context, was obviously understood as an exaggeration, rather than a statement of literal fact”—is not actionable.54 In particular, “[t]he ad hominem nature of abu- sive epithets, vulgarities, and profanities,”55 which some writ- ers “use to enliven their prose,”56 indicates that the statement is hyperbole. (Op. at 941)

Then the court showed what a total idiot you have to be to file under these facts.

Exercises in “name calling” (See Chang v. Cargill, Inc., 168 F. Supp. 2d 1003, 1011 (D. Minn. 2001)) generally fall under the category of rhetorical hyperbole. (See, e.g., Blomberg v. Cox Enterprises, Inc., 228 Ga. App. 178, 491 S.E.2d 430 (1997)). For example, courts have held that “ ‘idiot,’ ”(Robel v. Roundup Corp., 148 Wash. 2d 35, 56, 59 P.3d 611, 622 (2002). Accord Blouin v. Anton, 139 Vt. 618, 431 A.2d 489 (1981)) “ ‘raving idiot,’ ”(DeMoya v. Walsh, 441 So. 2d 1120, 1120 (Fla. App. 1983)) “ ‘[i]diots [a]float,’ ” (Cowan v. Time, Inc., 41 Misc. 2d 198, 198, 245 N.Y.S.2d 723, 725 (N.Y.
Sup. 1963)). and more vulgar variants (See Chang v. Cargill, Inc., 168 F. Supp. 2d 1003, 1011 (D. Minn. 2001)) were rude statements of opinion, rather than lay diagnoses of mental capacity. Similarly, courts have held that statements calling the plaintiff “ ‘stupid,’ ” (Chang v. Cargill) a “ ‘moron,’ ” (Purcell v. Ewing, 560 F. Supp. 2d 337, 343 (M.D. Pa. 2008)) and a “ ‘nincompoop’ ” (Stepien v. Franklin, 39 Ohio App. 3d 47, 49, 528 N.E.2d 1324, 1327 (1988)) were not actionable. Courts have also held that statements potentially referring to the plaintiff’s mental health, such as “‘raving maniac’” (DeMoya v. Walsh, 441 So. 2d 1120, 1120 (Fla. App. 1983)); “‘pitiable lunatics’” (Thomas v. News World Communications, 681 F. Supp. 55, 64 (D.D.C.1988)); “wacko,” “nut job,” and “‘hysterical’” (Lapine v. Seinfeld, 31 Misc. 3d 736, 752, 754, 918 N.Y.S.2d 313, 326, 327 (N.Y. Sup. 2011)); “‘crazy’” (Stepien v. Franklin, supra note 65, 39 Ohio App. 3d at 49, 528 N.E.2d at 1327); and “crank,” (See Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996)) were statements of opinion. (Op. at 941-942) (citations added in from footnotes)

I am now starting the betting pool. Lets wager on how long it takes for some total idiot to file a lawsuit under virtually identical facts… in Florida.

5 Responses to Only a total idiot would have filed a defamation case over the term “total idiot”

  1. CPlatt says:

    Speaking of rhetorical hyperbole–

    A writer I know made the mistake of referring to a comic-book writer named Michael Fleisher as “bugfuck” in a published interview. He also used the terms “crazy”, “certifiable”, “twisted”, “derange-o”, and “lunatic,” but “bugfuck” may have been the word that bothered Fleisher the most.

    Fleisher claimed damage to his reputation, and demanded $2 million compensation. The resulting libel suit dragged on for years. It was eventually heard in New York City. The trial, which I attended as an observer, lasted four weeks. The jury took about three hours to decide that the suit had no merit. The jury began deliberations on a Friday afternoon and seemed in no mood to return after the weekend.

    A key factor influencing the jury (according to a juror I spoke to afterward) was that Fleisher’s income as a writer of notoriously deranged, blood-drenched comic books increased during every year after the insult was printed. If he was indeed “bugfuck,” his readers may have liked it that way.

    Fleisher eventually quit writing comic books and got a degree as an anthropologist, according to his Wikipedia page.

  2. Ancel De Lambert says:

    What’s with all the hyphenization in that court document?

  3. […] to learn that the court did not buy this argument and decided to school Mr. Total Idiot on how rhetorical hyperbole works,complete with a laundry list of past cases in which it was completely cool to call someone a […]

  4. L says:

    If the suit were filed in Florida, the defense would not be Rhetorical Hyperbole, but Truth.

  5. andrews says:

    in Florida, the defense would be […] Truth

    Yes, I have been waiting for someone to come along and get offended by the newspaper column.

    Presenting truth as the Constitution does, as a defense, unfairly shifts the burden. Normally I would expect to deny any alleged falsity. If no false statement was identified, I would expect to have a defense of failure to state a cause of action.

    Florida does not have much of an anti-slapp law. FS 768.295 prohibits such suits by government entities. A corporation finding itself subject to criticism is not reached by the statute, with two exceptions unworthy of note (718.1224, 720.304(4)).

    I suppose an imaginative atty could read one of those provisions expansively, so long as his client owned the appropriate type of realty, but they are unlikely to help in the run-of-the-mill case.

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