In today’s political climate, “racist” is the go-to pejorative in most every conversation. The moment one person feels that they are losing the argument, they call the other a racist. In fact, the use of the term is so common that one court has held that the term has become “meaningless.”
“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The word has been watered down by overuse, becoming common coin in political discourse.” Kimura v. Vandenberg.
Even outside of politics, “racist” is frequently employed to add extra sting to any criticism. I frequently see Yelp reviews where there is no apparently context for the use of the word, but it is used nonetheless, almost as an afterthought. “Oh, and he is a racist too.”
So, the question presented by this article:
Is it defamatory to call someone “racist”?
As always, we must begin with the elements of the claim. The elements of defamation are: “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Price v. Operating Engineers Local Union No. 3.
However, the second element, falsity, is subject to further clarification. The false statement must be verifiably false. Overstock.com, Inc. v. Gradient Analytics, Inc. It is for this reason that cases have routinely held that calling someone a racist is not defamatory, because it is not verifiably false. There is no measure we can use to determine the truth or falsity of the statement, because it will always be a matter of opinion.
Some callers will offer all the ways they can prove that they are not a racist, including a spouse and children who belong to the race in question, years of fighting for the rights of that race, a Nobel Peace Prize for the work they have performed fighting for equal rights, and thousands of friends belonging to the race. (I obviously exaggerate to make the point.)
None of that defeats a claim of racism, at least as to the person making the claim. If that person claims the Barista at the Starbucks is a racist because they misspelled their name on the cup, who is to say that is not true?
“But I just misheard the name.”
“Then you’re a racist for not asking for the proper spelling.”
“But the point is just so the person knows which cup is theirs; it’s not about the spelling.”
“So you don’t care how they spell their name? Racist.”
Ultimately, whether or not someone is a racist is always a matter of opinion, and the cases have so held. But there is an exception, as explained in the case of Overhill Farms, Inc. v. Lopez.
Overhill Farms, Inc. v. Lopez
In Overhill Farms, the IRS informed the company that according to its records, 231 of its employees were using bogus social security numbers, and threatened the company with penalties and criminal liability if it failed to investigate and resolve the matter.
The company informed all of the employees of the situation, and gave them time to clear up any issues with their social security numbers, telling them the company would have to let them go if they were using false numbers. Only one of the employees was able to clear up the confusion, and the other 230 were let go.
Defendant Lopez, the director of an organization supporting workers’ rights, issued a press release protesting the “racist firings by Overhill,” and claiming that the problems with the social security numbers was a pretext for all the firings, which were really designed to eliminate full time workers and replace them with part time workers with no benefits.
Overhill sued for defamation, in part for the “racist” claim. Lopez brought an anti-SLAPP motion, assuming he would carry the day based on all the prior case law holding that “racist” was not defamatory, but he lost.
The reason? Here, the use of the word “racist” was not merely a matter of opinion, because it was tied to specific false claims. Overhill was able to prevail, not because it could somehow show that it was not racist, but because it could show that the terminations were not made for racist reasons, as Lopez had claimed.
So, if you want me to represent you against a false claim of being a racist, I’m there for you. But here is the analysis we will be performing. If it is a claim of racism, with no explanation of what makes you a racist, then there is probably not much we can do. But if the person explains why you are an alleged racist, and those reasons are false, that might be actionable.
And at the risk of perhaps stating the obvious, it is also the case that the context itself must be true. Going back to our Barista example, the person was free to conclude that the Barista was a racist for misspelling his name, as ridiculous as that might be. But if in reality that person had never even visited the Starbucks, then he could not have formed a valid opinion about the Barista’s racism, and the racist comment would on that basis be defamatory.
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