The Volokh Conspiracy - Sued for Accurately Saying Government Employee Was a Mexican (and Shouldn't Be Employed):

My student Daniel Koontz is writing an article on free speech and the intentional infliction of emotional distress tort, and a draft of his pointed me to this remarkable case, Dominguez v. Stone, 638 P.2d 423 (N.M. App. 1981). It's nearly 30 years old, but it was decided very much during the modern era of free speech law, and it remains cited as precedent as to its general discussion of the emotional distress tort.

Remarkably, the court held that

an elected official could be sued for defamation for accurately saying that a direct of a local program was a Mexican citizen, and
he could be sued for intentional infliction of emotional distress for so saying, and for arguing that non-citizens ought not be employed in this job.

It may well be that it would be unconstitutional to actually discriminate against non-citizens in government job decisions, but surely a government official ought to be entitled to condemn the current state of affairs, even if there's nothing that the government may constitutionally do about that state of affairs. This strikes me as a total violation of First Amendment principles; even if the defendant hadn't raised the First Amendment — possible though unclear — those principles have to be considered by the court in developing the state law of torts. Yet a New Mexico appellate court held precisely that.

And while this story is hardly breaking news, it does show how courts can suppress disfavored viewpoints unless they're assiduously policed by higher courts, as well as what bad precedents there are in some state courts. (Note that, procedurally, the court reversed summary judgment in the defendant's favor, which is to say that the court allowed the plaintiff to take the case to the jury. I can't easily figure out what happened at trial, or whether the case settled, but the reversal of summary judgment announces a legal principle that the defendant's speech could lead to liability.)

In any case, here are the relevant facts:

The plaintiff is a 22 year-old Mexican National having been born in Mexico. She has been legally residing in the United States since she was 3 years of age and now is living in Grants, New Mexico....

Plaintiff was the director of the Senior Citizens Program in the Village of Central, New Mexico on September 16, 1980. Defendant Stone was a member of the Board of Trustees of Central which is its governing body. On September 16, 1980, during a public meeting of the Village Trustees and later during a closed meeting, or executive session of the Village Trustees, the defendant made ... statements ... to the effect that plaintiff was not suited for her employment with the Village of Central because she was a Mexican. Defendant's statements included a statement to the effect that the person performing the duties of program director of the Village of Central Senior Citizens Program should not be a Mexican, part of his reason being that the program is funded with American tax dollars.

The defendant interrogated the plaintiff at the meeting concerning payment of income and property taxes and whether she possessed a green card, whether she applied for United States citizenship, and whether she had registered to vote in the United States. On September 17, 1980, the defendant personally went to the office of the Grant County clerk to determine whether plaintiff was a registered voter. He was told she was not.

DEFAMATION OF REPUTATION

... The trial court dismissed this cause of action in its summary judgment.... "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The question we are confronted with now is whether there is an issue of fact that any of the comments of the defendant lowered the plaintiff's reputation in the estimation of the community, third parties, or her employers, the Board of Trustees.

The defendant contends that he had some sort of immunity to act as he did because he was a member of the Board of Trustees. We disagree. Public officials are not above the law. "The law protects only those who act reasonably and with a reasonable belief of the truth of their remarks." ...

There is evidence in the record from which a jury could conclude that the defendant was prejudiced against the plaintiff and that he was attempting to persuade the Board of Trustees to accept his views and attitudes towards the plaintiff. There is an issue of fact of defamation of reputation in this respect.

It is common knowledge in New Mexico that the word "Mexican" when used in circumstances similar to those in the instant case connotes prejudice and disparagement. It is also common knowledge in this State that, like defendant, many citizens of Mexican and Spanish descent also served in the armed forces, and some gave their lives for this country. Hardly an Hispanic family in New Mexico escaped the anguish of the Bataan Death March in World War II; Hispanics have served bravely in other conflicts as well.

We are not impressed with defendant's contention that because plaintiff is an alien, she should not be employed in Grant County. President Franklin D. Roosevelt, in an address to the Daughters of the American Revolution in 1938, said: "Remember, remember always, that all of us, you and I especially, are descended from immigrants."

We hold that the court erred in granting summary judgment in respect to this cause of action.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." ... "The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ...

We discuss here an identical case to the case at bar:

The court in Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977), held that the Plaintiff had sufficiently stated a cause of action under the tort of outrage as defined by the Washington courts and the Restatement (Second) of Torts, § 46 (1965), where it was alleged that the plaintiff, while in the employ of the defendant corporation, was subjected to intentional or reckless conduct on the part of the defendant's agents and employees which was beyond all reasonable bounds of decency and which caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public, and exposure to scorn and ridicule, when the defendant's agents knew or should have known that by reason of the plaintiff's Mexican nationality and background he was particularly susceptible to emotional distress as a result of the conduct. Noting that liability under the tort of outrage has been recognized in Washington when premised upon outrageous conduct such as alleged in the present case; the Court pointed out that when one in a position of authority over another allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior, the relationship between the parties being a significant factor in determining whether liability should be imposed. The Court stated that where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions through its supervisory personnel or by other means. The Court further observed that as to the various slang epithets that may have once been in common usage regarding Mexican-Americans, it was for the trier of fact to determine, taking into account changing social conditions and the plaintiff's own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage. (Emphasis added.)

We believe and hold, that the testimony of the plaintiff and the defendant which we have quoted in this opinion heretofore and all the evidence in the record do establish that an issue of fact does exist as to this cause of action....

	[Eugene Volokh, April 15, 2008 at 8:06pm] Trackbacks Sued for Accurately Saying Government Employee Was a Mexican (and Shouldn't Be Employed): My student Daniel Koontz is writing an article on free speech and the intentional infliction of emotional distress tort, and a draft of his pointed me to this remarkable case, Dominguez v. Stone, 638 P.2d 423 (N.M. App. 1981). It's nearly 30 years old, but it was decided very much during the modern era of free speech law, and it remains cited as precedent as to its general discussion of the emotional distress tort. Remarkably, the court held that an elected official could be sued for defamation for accurately saying that a direct of a local program was a Mexican citizen, and he could be sued for intentional infliction of emotional distress for so saying, and for arguing that non-citizens ought not be employed in this job. It may well be that it would be unconstitutional to actually discriminate against non-citizens in government job decisions, but surely a government official ought to be entitled to condemn the current state of affairs, even if there's nothing that the government may constitutionally do about that state of affairs. This strikes me as a total violation of First Amendment principles; even if the defendant hadn't raised the First Amendment — possible though unclear — those principles have to be considered by the court in developing the state law of torts. Yet a New Mexico appellate court held precisely that. And while this story is hardly breaking news, it does show how courts can suppress disfavored viewpoints unless they're assiduously policed by higher courts, as well as what bad precedents there are in some state courts. (Note that, procedurally, the court reversed summary judgment in the defendant's favor, which is to say that the court allowed the plaintiff to take the case to the jury. I can't easily figure out what happened at trial, or whether the case settled, but the reversal of summary judgment announces a legal principle that the defendant's speech could lead to liability.) In any case, here are the relevant facts: The plaintiff is a 22 year-old Mexican National having been born in Mexico. She has been legally residing in the United States since she was 3 years of age and now is living in Grants, New Mexico.... Plaintiff was the director of the Senior Citizens Program in the Village of Central, New Mexico on September 16, 1980. Defendant Stone was a member of the Board of Trustees of Central which is its governing body. On September 16, 1980, during a public meeting of the Village Trustees and later during a closed meeting, or executive session of the Village Trustees, the defendant made ... statements ... to the effect that plaintiff was not suited for her employment with the Village of Central because she was a Mexican. Defendant's statements included a statement to the effect that the person performing the duties of program director of the Village of Central Senior Citizens Program should not be a Mexican, part of his reason being that the program is funded with American tax dollars. The defendant interrogated the plaintiff at the meeting concerning payment of income and property taxes and whether she possessed a green card, whether she applied for United States citizenship, and whether she had registered to vote in the United States. On September 17, 1980, the defendant personally went to the office of the Grant County clerk to determine whether plaintiff was a registered voter. He was told she was not. DEFAMATION OF REPUTATION ... The trial court dismissed this cause of action in its summary judgment.... "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The question we are confronted with now is whether there is an issue of fact that any of the comments of the defendant lowered the plaintiff's reputation in the estimation of the community, third parties, or her employers, the Board of Trustees. The defendant contends that he had some sort of immunity to act as he did because he was a member of the Board of Trustees. We disagree. Public officials are not above the law. "The law protects only those who act reasonably and with a reasonable belief of the truth of their remarks." ... There is evidence in the record from which a jury could conclude that the defendant was prejudiced against the plaintiff and that he was attempting to persuade the Board of Trustees to accept his views and attitudes towards the plaintiff. There is an issue of fact of defamation of reputation in this respect. It is common knowledge in New Mexico that the word "Mexican" when used in circumstances similar to those in the instant case connotes prejudice and disparagement. It is also common knowledge in this State that, like defendant, many citizens of Mexican and Spanish descent also served in the armed forces, and some gave their lives for this country. Hardly an Hispanic family in New Mexico escaped the anguish of the Bataan Death March in World War II; Hispanics have served bravely in other conflicts as well. We are not impressed with defendant's contention that because plaintiff is an alien, she should not be employed in Grant County. President Franklin D. Roosevelt, in an address to the Daughters of the American Revolution in 1938, said: "Remember, remember always, that all of us, you and I especially, are descended from immigrants." We hold that the court erred in granting summary judgment in respect to this cause of action. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ... "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." ... "The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ... We discuss here an identical case to the case at bar: The court in Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977), held that the Plaintiff had sufficiently stated a cause of action under the tort of outrage as defined by the Washington courts and the Restatement (Second) of Torts, § 46 (1965), where it was alleged that the plaintiff, while in the employ of the defendant corporation, was subjected to intentional or reckless conduct on the part of the defendant's agents and employees which was beyond all reasonable bounds of decency and which caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public, and exposure to scorn and ridicule, when the defendant's agents knew or should have known that by reason of the plaintiff's Mexican nationality and background he was particularly susceptible to emotional distress as a result of the conduct. Noting that liability under the tort of outrage has been recognized in Washington when premised upon outrageous conduct such as alleged in the present case; the Court pointed out that when one in a position of authority over another allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior, the relationship between the parties being a significant factor in determining whether liability should be imposed. The Court stated that where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions through its supervisory personnel or by other means. The Court further observed that as to the various slang epithets that may have once been in common usage regarding Mexican-Americans, it was for the trier of fact to determine, taking into account changing social conditions and the plaintiff's own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage. (Emphasis added.) We believe and hold, that the testimony of the plaintiff and the defendant which we have quoted in this opinion heretofore and all the evidence in the record do establish that an issue of fact does exist as to this cause of action....