An interesting and correct decision from the Tennessee Court of Appeals, in Steele v. Ritz (decided yesterday):
[A]n adult cabaret and three female employees of adult entertainment businesses and cabarets in Shelby County filed suit against Shelby County Commissioner Michael Ritz …. The plaintiffs alleged that Commissioner Ritz was quoted as stating that “almost without exception, these girls were sexually abused by a family member … and have an addiction to drugs or alcohol … these clubs feed on that. It is a vicious cycle.” …[T]he “of and concerning” requirement [of libel law] confines actionable defamation to statements made against an “ascertained or ascertainable person, and that person must be the plaintiff.” …
Although it contains an alleged defamatory statement, the [Ritz] statement does not expressly mention the plaintiffs. There is no allegation that the statement refers to the plaintiffs by reasonable implication, that Commissioner Ritz made the statement with knowledge of its falsity or defamatory nature as to the plaintiffs, or that the statement was made “of and concerning” the plaintiffs. The plaintiffs do not allege that “these girls” and “these clubs” referenced in the statement are or include the plaintiffs, nor is there an allegation that the statement referred to adult entertainment businesses in Shelby County or the female employees thereof. Equally absent from the complaint are allegations that the Commissioner intended the statement to refer to the plaintiffs, that a reasonable person hearing the statement would believe it referred to the plaintiffs, or that extrinsic facts existed to show that the statement referred to the plaintiffs. The plaintiffs’ complaint fails to offer so much as a conclusory allegation that a connection existed between the alleged statement and the plaintiffs, their profession, or adult establishments generally….
FantasiaWHT says:
So I can avoid libel by casting my aspersions at groups that necessarily include my target? Good to know.
December 17, 2009, 6:44 pmMalvolio says:
Hmmm, if I wrote “Almost all of the bloggers on Volokh Conspiracy whose first name begins with ‘E’ stomp on kittens”, would that be libelous? How about if I omitted the “almost”?
The decision repeatedly says “name”, but that doesn’t sound right, or it least shouldn’t be taken literally. If a defamatory statement obviously identified some particular individual (“you”, “the editor-in-chief of this newspaper”, “the president of Pepsico”), that would be enough for a tort, wouldn’t it?
And where should it stop? Clearly, “Bob is a serial killer” is slander (assuming it’s meant seriously and Bob isn’t a serial killer and all the other exceptions) but “white people are more likely to be serial killers” is not.
What about “Bob and Stan are serial killers”? What about “Either Bob or Stan is a serial killer”? Inquiring mind want to know.
People who post things like that are serial killers.
December 17, 2009, 6:49 pmneurodoc says:
NYT v Sullivan is mentioned in a footnote, but it seems not to have mattered that to the outcome of this case that Ritz was a Shelby county commissioner. If Ritz had made clear that his remarks pertained directly to these plaintiffs, then might the plaintiffs still have lost, but only because the defendant held public office and they would have had to prove actual malice to prevail? Do public officials being sued for libel/slander automatically qualify for heightened protection under NYT v Sullivan, or must they be speaking/writing in effect ex cathedra when they publish the putative libel/slander to get that protection?
December 17, 2009, 7:06 pmPhilistine says:
You’ve got it backwards. It’s when public officals are the ones suing that there is a heightened standard–not when the public offials are the ones being sued.
December 17, 2009, 7:28 pmmarkm says:
Neurodoc, you’ve got the actual malice requirement backwards. It doesn’t protect public figures, it protects those that make allegations about public figures.
So it doesn’t apply unless strippers are “public figures”…
December 17, 2009, 7:30 pmLaura(southernxyl) says:
Aren’t they, by necessity? If a stripper’s figure is private, how is she a stripper?
December 17, 2009, 7:54 pmJoseph Slater says:
Ba-da-bing, Laura.
December 17, 2009, 7:56 pmDaniel Chapman says:
Laura wins the thread.
December 17, 2009, 7:56 pmCrunchy Frog says:
I’ve seen strippers whose bodies should have stayed private…
just sayin’
December 17, 2009, 7:58 pmtarheel says:
There is a ton of case law, but no set rule, on how small a group needs to be before defaming the group also defames the individuals in the group. Roughly speaking, if you said the New York Knicks starting five were all child rapists, an individual player might have a claim (assuming it is not true). If you said the same of the NY Giants, probably not.
Just from reading the excerpt, this seems less like a group libel decision than a recognition of poor pleading by the plaintiffs.
December 17, 2009, 8:04 pmComm Law » Identification for libel says:
[...] A recent decision in Tennessee describes the identification rule for libel as quoted by Volokh. Comment [...]
December 17, 2009, 8:08 pmJohn Burgess says:
Following the court’s argument, then, it would seem that if all strippers and strip-club owners in the County had filed this suit, then they would have been covered. The category would include each and every individual, no? Particularity would have been met.
December 17, 2009, 9:06 pmChris Travers says:
Was it dismissed with or without prejudice? My reading of this has more to do with what you have to allege (and hopefully prove) than with the marits of this specific case, and the barrier to entry doesn’t seem that high.
On the other hand I suppose it is true that almost without exception bloggers suffer from severe megalomania and feed off the weak wills of internet addicts….. ;-)
(I suppose I should add a disclaimer here about the above paragraph being a parody of the original comment which sparked the suit, but I also suppose that anyone who couldn’t figure that out from context must be pretty stupid.)
December 17, 2009, 9:15 pmMalvolio says:
Really? Wow, that is not intuitive. (If I had guessed, I would have said the group would need to be big enough that all the members might not know each other — and therefore, individual members might be absolved by public opinion for generalizations about the group. So, more like the National League than any one team. Also, I think it’s the Lakers’s starting five who are child molesters.)
December 17, 2009, 9:23 pmNickM says:
Chris – suffer from, or enjoy?
Malvolio – since the Lakers starting center didn’t turn 18 until during training camp of his rookie season, you could be referring to locker room hazing.
Nick
December 17, 2009, 9:50 pmneurodoc says:
OMG, that was stupid of me. Just saw a libel suit with public official in it and thought of NYT v Sullivan. Of course, in that one, the public official was the plaintiff, not the defendant, so of no relevance here. My stupid. (Now, this stupidity will live in cyberspace forever?! Can I make it any better by saying something in support of the maligned strippers?)
December 17, 2009, 10:16 pmRyan Waxx says:
*eagerly runs off to write a novel entitled “The Scarlet Comments” *
December 17, 2009, 10:36 pmTweets that mention The Volokh Conspiracy » Blog Archive » Group Libel -- Topsy.com says:
[...] This post was mentioned on Twitter by Suffolk Media Law, Eugene Volokh. Eugene Volokh said: Group Libel: An interesting and correct decision from the Tennessee Court of Appeals, in Steele v. Ritz (decide.. http://bit.ly/6zdErY [...]
December 17, 2009, 10:59 pmArthurKirkland says:
There is a silver lining to granting Michael Ritz “of and concerning” license to disparage these women.
I venture a corresponding right to opine that I expect, based on the record of ostentatious moralizing by religious Republican elected officials (especially those who are petty elected officials with backwater backgrounds), to learn someday that Michael Ritz has been revealed to be a self-loathing hypocrite with a skeleton-cluttered closet.
Whether it is an incest rap (involving two minors, after official promotion of “safety zones” for kids), a hooker habit (after a “God and family values” campaign), a tag for lewd conduct in a restroom (after proposing impeachment of a “nasty, bad, naughty boy” and supporting a constitutional ban on same-sex marriage), or a revelation of sexual misconduct with minor employees (after proposing anti-pornography legislation so broad it would have outlawed commercial photography involving children and mainstream entertainment), the pattern is clear.
One can only wonder what revelation might be awaited, after this campaign against adult entertainment venues and disparagement of the women who work in them, with respect to Shelby County’s Michael Ritz.
An important difference between holier-than-thou politicians and the women Ritz maligns is that those women don’t malign someone in public and then run to them in diapers and ball-gags in private.
(I am not proposing that Democrats are better than Republicans with respect to conduct in this context, but they appear, at least in recent chapters, to be less hypocritical with respect to Michael Ritz’ brand of “family values.”)
December 17, 2009, 11:03 pmDave says:
Except for Elliot Spitzer, whose behavior (simultaneously prosecuting and patronizing prostitutes) pretty much trumps all of the one’s you mentioned.
December 17, 2009, 11:12 pmArthurKirkland says:
I wasn’t aware that Spitzer took to the soapbox about prostitution for political gain, but if he did, special opprobrium is deserved.
If he didn’t make a big deal of it, the transgression is more common and somewhat less reprehensible — how many legislators vote to enhance penalties for drug possession with respect to drugs they enjoy (assuming they can wiggle off the hook if stopped themselves), how many judges impose penalties for possession of substances they consume (figuring they or their children will get a pass if caught), how many law enforcement officers investigate and arrest citizens for behavior in which they engage on or off duty?
December 18, 2009, 12:22 amPierre Corneille says:
My question is along the lines of Chris Travers’s. Was the issue that the plaintiffs had no case, or that their lawyer failed to state the proper allegations? In other words, if the plaintiffs had, indeed, alleged that
would the case still have been dismissed?
December 18, 2009, 6:57 amFedya says:
He did worse than taking to the soapbox; he prosecuted them while he was Attorney General.
It’s the sort of thing that makes me think state constitutions should be amended to bar Attorneys General from running for further office.
December 18, 2009, 9:03 amStrip Club says:
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December 18, 2009, 9:11 amChem_geek says:
Well, they might not be public figures, but surely they’re pubic figures.
Ba-DA-bum!
Tip your veal, try your waitress. I’m here all week…
December 18, 2009, 9:44 amtroll_dc2 says:
There is a distressing amount of humor in this thread.
December 18, 2009, 11:08 amrarango says:
As a citizen of Memphis and Shelby County (which mostly closely resembles a third world country), can I state without fear of a libel suit our elected officials are crooks? and the main criteria for holding office in Memphis and Shelby county is to have either been indicted, served hard time, or be under investigation? This, of course, is just a hypothetical and I have the utmost respect for hardworking elected officals (gaggggg)
December 18, 2009, 11:51 amDjDiverDan says:
Just curious – do you think a Court might find a little known exception to this doctrine if, hypothetically, some uninformed individual were to claim that “Almost without exception, all trial court judges are lazy and devoid of scruples”, or “Almost without exception, all lawyers are morally bankrupt money grubbers who cease caring a whit about their clients the very minute thay have managed to empty out those clients’ wallets”.
December 18, 2009, 12:10 pmEroticMassageReviews says:
You can’t say anything anymore. People love to accuse others of defamation, it’s the number one threat but 98% of the time, nothing is ever proofed that the person being accused had bad intentions in the first place.
December 18, 2009, 12:21 pmAultimer says:
The decision appears to have reached the conclusion suggested by precedent.
Unfortunately, it’s chock full of pedantic and weasly refusal to read the pleading with even slight generosity – “there is no
allegation that the statement refers to the plaintiffs by reasonable implication”.
Why on earth would girls who worked at one of those clubs, and one of those clubs think that “almost without exception, [...]girls and [...]clubs” think the Commissioner was talking about them. Next time the judge is playing golf with the commissioner, he’ll have to ask.
December 18, 2009, 1:26 pmGuy says:
How important is the “almost without exception” qualifier here?
December 18, 2009, 2:50 pmIf I say “All but one of the people who commented on this thread is a child molester,” does that mean no one could sue me for libel? Or just that you need at least two plaintiffs on the suit? One plaintiff, as long as they prove that I’m not a child molester, too?
Tennessee Court of Appeals requires specificity in group libel cases « The Legal Satyricon says:
[...] addressed by Eugene Volokh, the Tennessee Court of Appeals recently affirmed the lower court’s dismissal of the [...]
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