Thursday, May 26, 2016

Are you foul-mouthed?

I have watched enough Judge Judy to know that truth is a defense to any defamation action. So that if you call me a crook, and I sue you for defamation, and I really am a crook, then there is no defamation case. What if you call someone "foul-mouthed"? Is that defamation?

The case is In Re Application of Kate O'Keefe, a summary order decided on May 26. The Court of Appeals does not decide whether "foul-mouthed" is a defamatory slur. The Court instead decides whether the defendant can take the deposition of the plaintiff's chauffeur in Hong Kong. The Court says the district court did not abuse its discretion in refusing to quash the subpoena.

The plaintiff is Sheldon Adelson, the billionaire casino magnate who bankrolls Republican presidential candidates. As the Second Circuit (Cabranes, Straub and Lohier) puts it, "Adelson has sued O’Keeffe in Hong Kong for defamation. His claim involves an article that O’Keeffe co-authored for the Wall Street Journal, which described Adelson as 'foul-mouthed.' O’Keeffe’s defense in that lawsuit depends, in part, on her contention “that the term foul-mouthed is true in substance and fact.' To facilitate that defense, O’Keeffe seeks to subpoena [Kwame] Luangisa for evidence of Adelson’s use of 'foul' language."

I don't know the legal doctrine in Hong Kong, but in New York, unless you call someone a criminal or some other falsehood that hurts your business reputation, defamation cases require proof of special damages, i.e., emotional distress or lost income. I don't think calling someone "foul-mouthed" will lose you any money. It might cause you some distress, but unless your career depends on a squeaky-clean image, who cares?  

As far as the deposition in Hong Kong, my guess is that Adelson's driver will testify to some colorful language from the man who made his fortune in Las Vegas. I know about three people who never use foul language. Everyone is foul-mouthed. Vulgarity is the official language of the United States of America.

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