January 16, 2018

SYMPATHY FOR THE DEVIL: The Daily Caller reported yesterday that New York University professor Michael Rectenwald is suing NYU and four of his colleagues for defamation after faculty used the school’s email system to call him a “right-wing misogynist,” an “asshole” and “Satan.”

As sympathetic as one might be towards a professor who stands his ground and rails against out-of-control indoctrination in higher education, if those are the words over which he is suing, he doesn’t stand much of a chance in court. A long line of cases hold that what might be deemed “offensive” language does not meet the critical element in a libel case of making a false statement of fact with the requisite fault level.

All kinds of offensive words that might ordinarily harm a person’s reputation, in certain contexts (like political discussions, union disputes, an even competition in the marketplace) are often rendered mere opinion, or “hyperbole and rhetoric” by dint of their “over-the-top” nature, their literal improvability, and the heated context in which they appear.

The words “scab” and “traitor” were so held in Letter Carriers v. Austin; “pimp” in Knievel v. ESPN; “rip-off,” “fraud, “scandal” and “snake-oil job” were not actionable in Phantom Touring, Inc. v. Affiliated Publications; and “trashy” in Levinsky’s v. Wal-Mart Stores, Inc., my very first Court of Appeals case.

*Classical reference in headline