If you want to be a quasi-literate racist asshole, go right ahead. It's a free country. There are lots of quasi-literate racist assholes around and it's unlikely you will distinguish yourself. I trust the marketplace of ideas to assign appropriate social consequences to you and your business. I may or may not help distribute those social consequences depending on the degree to which you irritate me.
But when you start threatening to sue people for pointing out that you're a racist asshole, I feel that you are going out of your way to antagonize me. I feel that it's time to put on my cockroach-stomping boots.
You might have seen the coverage at Lowering the Bar or FindLaw or numerous other sites of a breathtakingly racist caricature in a purported law firm advertisement produced by a company called Definitive Television, the vehicle of one Jim DeBerry of DeBar Holdings Ltd. The advertisement features a man dressed up in an Asian-caricature costume using an Asian-caricature voice to recommend a law firm called McCutcheon & Hamner, PC in Alabama. The caricature is a character Definitive TV offers to its clients. Definitive TV is a little defensive about it right out of the gate:
IF YOU ARE ON A SENSITIVE WITCH HUNT OUR SUGGESTION IS TO FOCUS YOUR ATTENTION TO MURDERERS, DRUG DEALERS, CHILD MOLESTERS THAT LIVE NEAR BY YOU.
When Joe Patrice at Above the Law reported on this, two things happened. First, the law firm of McCutcheon & Hamner PC claimed that it had been "hacked" and that it did not approve the commercial. That may or may not be true. Second, Jim DeBerry wrote Above the Law and threatened to sue for suggesting that the advertisement is racist.
The threat is a masterful example of sub-literate drivel from a self-important tool who thinks he's learned law from ten minutes on Google, seven of which were spent looking at lolcats. There's the moronic "it's not racist under this dictionary definition I chose" rhetoric:
We object to the statements of racism, as we do not fit under the legal definition, which is, The belief that race accounts for differences in human character or ability that a particular race is superior to others. 2. Discrimination or prejudice based on race.
There's the bizarre use of commas, odd diction, and weird capitalization that suggest that Jim DeBerry just took a break from sending 419 scam emails:
Furthermore, upon your interview request, we have read MR. JOSEPH PATRICE article/blog
YOU MAY FIND IT ODD THAT I EMAIL YOU BUT I HAVE A BUSINESS PROPOSITION FOR YOU MR. JOSEPH PATRICE. I AM THE QUEEN OF ROMANIA.
Finally, there's the barely-coherent jibber-jabber threat:
We firmly believe MR. JOSEPH PATRICE statements of racism when done with intentional malice and to damage our name for gain of revenue and promotion on his article through your business. Mr. Patrice is not stupid or ignorant, by lacking intelligence or common sense. By all appearances, He is educated and he fully understood the reckless racist statement claims with intentional malice he chose to type and for yourself to distribute when he submitted for article creation in which you accepted. We are currently consulting with another party regarding how we should pursue action against the libel statements made by Mr. Patrice, through your company, and others.
I will accept a retraction and apology related to the racist claims made by MR. JOSEPH PATRICE published by your company.
Let's be clear: Jim DeBerry's legal threat is complete bullshit and shows that he's pig-ignorant in addition to a racist. When Above the Law or any other blog or individual looks at DeBery's douchey video and calls it racist, that's a classic statement of opinion absolutely protected by the First Amendment. Above the Law didn't claim that DeBerry's company produced a racist video based on a secret review of some undisclosed videotape. If that had been the case, DeBerry might argue that Above the Law was implying false undisclosed facts. Instead, Above the Law and other commentators are offering opinions based on a specific disclosed fact — the video. You might not share the opinion that the video is racist, or that it reflects racist attitudes by the people who produced it. That's your prerogative. But calling the video racist — and calling the classless untalented hacks who shat it out racists — is classic opinion. As I have explained before, such an opinion is protected by the First Amendment:
This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.
Similarly, if I said "I've reviewed his personal papers and Jim DeBerry is illiterate," that might be defamatory, because I'm implying potentially false facts. But that's not what I'm saying. I'm saying that Jim DeBerry's idiotic legal threat, which I've linked, shows that he's less literate than the average penis-enlargement spammer — in addition to being a racist douchebag. That's opinion based on disclosed facts and therefore absolutely protected.
Before closing comments on the YouTube video, someone (consider the diction and grammar, and guess who) from Definitive TV wrote this:
We are respect your 1st amendment right and your freedom of opinion and speech on our comment board and will approve your comments. Due to the overwhelming feedback (50% positive and 50% negative) and at the request of McCutheon & Hamner at Law we have elected to disable the comment thread. We may open the comment section back up soon when we can reply.
Of course, this is wrong. YouTube is private and Definitive TV is private and nobody has a First Amendment right to post comments there if YouTube and Definitive TV don't want them to. But Definitive TV's mention of the First Amendment here is more than a little erratic, given their bogus legal threat to Above the Law. Maybe being a racist douchebag all the time is mentally taxing.
So: don't let the stupid threats of the Jim DeBerrys of the world chill you. Instead, call them out.
And I propose, to commemorate Mr. DeBerry's idiocy forever, that we make "We are respect your 1st amendment right!" a catchphrase for dealing with such censorious thugs.
Last 5 posts by Ken White
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