Monday, March 28, 2005

Dumb-Ass law

The title of this post is a description, not a put-down.

Here's an excerpt from a newly-published California defamation case (6th District Court of Appeal) that tackles the heady question of whether the sobriquet "Dumb Ass" is a statement of fact (and therefore defamatory if false) or a statement of opinion (and therefore just an opinion -- everybody's got one . . . )

"The accusation that plaintiffs are top-ranking “Dumb Asses” cannot survive application of the rule that in order to support a defamation claim, the challenged statement must be found to convey “a provably false factual assertion.” (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724.) A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. To call a man “dumb” often means no more than to call him a “fool.” One man’s fool may be another’s savant. Indeed, a corollary of Lincoln’s famous aphorism is that every person is a fool some of the time.

"Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 [“the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact”].) If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim. (See ibid.; Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1475-1476.)

"Nothing in the record before us suggests that the context in which the challenged statements were made would have infused them with a provably false meaning. Judging from additional portions of the website offered by plaintiffs in their opposition papers below, the website’s overall tone was one of puerile vituperation and wretchedly excessive tastelessness. The ostensible author of the list of “Top Ten Dumb Asses,” apparently a fictionalized figure, is himself presented as a “dumb ass,” i.e., “Dumb Ass Bob,” who purports to be providing “advice” to supposed readers who may or may not themselves be fictional or fictionalized. If the page containing the “Top Ten List” is any example, “Dumb Ass Bob” refers to his readers (real or concocted) as “dumb ass[es].” In fact, the main purpose of the page seems to be to employ the term “ass” as often as possible, preferably in conjunction with “dumb.” In such a context it is inconceivable that placement on the “Top Ten Dumb Asses” list could be understood to convey any imputation of provable defamatory fact. This statement simply cannot support a defamation claim, or any other claim pleaded by plaintiffs." (Vogel v. Felice 3/24/05 CA6 )

To which I can only add: That isn't a dumb-ass analysis.

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