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The courtroom battle between Johnny Depp and his ex-wife Amber Heard fascinated America like few that came before it. According to the data firm NewsWhip, Depp and Heard’s dueling defamation cases generated more social media engagement than any other story in the country, including the Russia-Ukraine war, the pending Roe v. Wade reversal, and even Elon Musk.

Axios

Over the course of a six-week trial, Depp pulled off a stunning reversal of public opinion. Just four years ago, Depp was a villain in the public’s eyes, after Heard made sensational abuse allegations (ghostwritten by lawyers with the ACLU) in the pages of the Washington Post. But Depp conclusively showed that he, not Heard, was the victim of long-running domestic abuse. And while members of the media class shrieked in horror, the vast majority of onlookers were happy to see Depp emerge victorious, extracting about $10 million in damages from Heard.

Captain Jack Sparrow’s big win is proof that America’s courts remain a venue where Americans can defend their reputations and win justice for themselves, without playing by the ever-changing rules of a sinister and malicious media. And Depp’s win also demonstrates the viability of defamation law, specifically, as a way to vindicate one’s reputation against media smears. Defamation laws don’t just exist for deep-pocketed celebrities. They provide a path for all American patriots to win important victories, and at this very moment patriotic legislatures can help more plaintiffs achieve them.

Want to strike a blow against cancel culture and the power of the media? Then don’t simply complain, do something: Make it legally risky to throw around the allegations that are a canceller’s bread and butter. Expand defamation law, and make clear that bogus accusations of being a “racist” or “white nationalist” are factual smears and defamatory per se.

American common law recognizes two different breeds of defamation: “Defamation per quod” and “defamation per se.” In “defamation per quod,” a false statement is not inherently damaging, and a person must demonstrate specific and concrete harms its publication caused. For instance, UVA dean Nicole Eramo’s lawsuit against Rolling Stone for portraying her as indifferent to a gang rape (which never actually happened) was a successful defamation per quod claim.

“Defamation per se” denotes statements so inherently damaging that their false utterance is presumed to hurt the target, no matter what – even if he cannot prove economic harm. The damages are simply assumed automatically. When a libel or defamation case involves statements that are defamation per se, it is substantially easier to win a case. But just as importantly, by reducing the pleading hurdles at the outset of a case, defamation per se makes it much easier to hold a defendant’s feet to the fire in discovery — for example, by demanding all Slack or Journolist logs pertaining to the smear.

Traditionally, four types of false allegations have been considered severe enough that they constitute defamation per se:

  • Claiming a person was involved in criminal activity
  • Claiming that a person was unethical or incompetent in their professional conduct
  • Claiming a person has some kind of contagious or loathsome disease.
  • Claiming a woman is unchaste or has otherwise engaged in sexual misconduct (Yes, in an age of slut pride parades, questioning woman’s chastity is defamatory per se. Historically, this tort was only available for women, though many jurisdictions now allow it for men also)

It’s time for this list to expand. Today, there is no false accusation thrown around more freely, and with greater harm, than the claim that a person is a “racist,” “white nationalist,” or “white supremacist.” It’s time that our courts adapted accordingly. America’s courts should adopt the standard that falsely accusing someone of being a racist, or of being a white nationalist, is per se defamation.

Imagine you’re the typical American mid-career professional, a doctor or lawyer or college professor—if you already are one, no need to imagine. What do you fear more? Being falsely accused of having monkeypox, or of being a “racist”? Would it be worse to appear on your local newspaper’s front page under a headline suggesting you embezzled money, or one suggesting you are a white nationalist? The answer, we suspect, is obvious.

When Gawker published Hulk Hogan’s sex tape leak in 2012, it was deeply embarrassing but not otherwise devastating to his career. It was only in 2015, when transcripts from a longer version of the tape revealed Hogan saying the n-word, that Hogan was totally essentially un-personed (emphasis ours):

The WWE has fired Hulk Hogan after reports surfaced that the wrestling legend went on a racist N-word-filled tirade.

“WWE terminated its contract with Terry Bollea (aka Hulk Hogan),” the company said in a statement Friday morning. “WWE is committed to embracing and celebrating individuals from all backgrounds as demonstrated by the diversity of our employees, performers and fans worldwide.”

The WWE has not confirmed the specific reason for ending its contract with Hogan. According to a “joint investigation” by the The National Enquirer and Radar Online, the decision came down after additional footage from Hogan’s 2012 sex tape leaked, showing the wrestler making racist comments about his daughter Brooke‘s boyfriend, whom he believed to be black.

“I’d rather if she was going to f– some n–er,” Hogan reportedly said on the tape. “I’d rather have her marry an 8-foot-tall n–er worth a hundred million dollars! Like a basketball player!

The WWE has since scrubbed all mentions of Hogan’s name from its website. A source tells THR that a replacement judge will appear in Hogan’s place on Tuesday’s episode of WWE Tough Enough. Further details will be announced on Tuesday’s episode. Additionally, the WWE will no longer air previous episodes of the series that involve Hogan.

According to USA Today, Hogan is also no longer present on the WWE Hall of Fame page. All merchandise has been removed from WWEShop.com.

[Billboard]

The single greatest pro wrestler in history was blotted out like he never existed. For the WWE, Hogan’s choice of words was roughly as bad as Chris Benoit murdering his entire family.

The West’s most powerful institutions have repeatedly sent the message that there is absolutely no offense worse than being a racist.  Countless rapes are committed in Central Park, but almost none of the rapists are as infamous as Amy Cooper, the “Central Park Karen” who was unfairly accused of threatening a black birdwatcher who serially followed and menaced dog owners like her. Even a vague adjacency to alleged racism is worse than almost any other offense. Fox News kept Ed Henry on the air after his first Vegas stripper scandal, but chucked a Tucker Carlson writer for posting on a web forum where other people used the n-word. In the U.K., Sky Sports recently apologized to a soccer player for mistakenly calling him a “racist” instead of a “rapist” (emphasis ours):

David Goodwillie received an apology from Sky Sports News on Wednesday, after a presenter accidentally called him a ‘racist’ live on air.

Goodwillie’s move from Scottish League One side Clyde to Scottish Championship side Raith Rovers caused outrage at the end of January’s transfer window.

The striker was ruled to be a rapist by a civil case in 2017 and Rovers’ decision to sign him was understandably met with anger from the club’s fans.

…

Whilst talking about the move on Sky Sports News, one presenter accidentally said the 32-year-old was a ‘racist’ before the broadcaster later had to make an apology, correcting the mistake to ‘rapist.’

“We would like to issue an apology to Mr Goodwillie,” the reporter making the apology said.

“A little earlier this evening, in error, we reported that he had been ruled to be a racist in a civil case in 2017.

“The ruling in question was actually that Goodwillie was ruled to be a rapist in that case.

“We apologise for the error in reporting.”

[Sport Bible]

In fact, people lose their jobs in the U.S. just for having family members accused of racism. In 2018, the WWE fired an executive because his wife was outed for making anti-Islam tweets. In 2020, the LA Galaxy soccer team cut a player because his wife (in Serbian) trashed rioters following George Floyd’s death. Holy Land, a restaurant and hummus brand in the Minneapolis area, was destroyed after activists dug up tweets the owner’s daughter made as a teenager eight years previously. Despite the owner firing his own daughter, stores yanked Holy Land’s products from shelves, a landlord evicted it from one of its restaurants, and ultimately nearly 70 people lost their jobs.

Compare those catastrophes with the consequences when several traditional per se defamation categories become public. Progressive “journalist” Noah Berlatsky has blogged openly for a pedophile advocacy organization, but he has no trouble getting bylines at genteel outlets like the LA Review of Books, which would obviously be impossible if he blogged for VDare. Hunter Biden’s infamous debauchery was no barrier to him becoming a “celebrated” “artist,” but would art connoisseurs have been so supportive if, instead of videos showing him cavorting with prostitutes, Hunter’s laptop had been filled with his rants about “naggers”?

Yet despite the enormous damage accusations of racism can inflict, there is little burden of proof for making such a claim. In San Diego two years ago, a utility company fired a Hispanic employee because he was photographed cracking his knuckles, and a hysterical liberal perceived it as a white power gesture.

At this moment in America, while it is possible to bring a defamation claim based on allegations of racism, succeeding is difficult. Courts routinely treat the smear “racist” as a statement of opinion, not fact, and can require proof of specific damages. That is absurd, and it gives the benefit of the doubt to sinister actors who gleefully use such tactics as a weapon. If a person becomes the target of an online lynch mob, that mob can bombard the media and their employers with grossly inflated and knowingly false accusations with essentially zero fear of of any consequences.

For an example of how current laws fall short, consider the 2020 case in Illinois, Jaros v. Vill. of Downers Grove. Plaintiff Arthur Jaros sued Downers Grove, its mayor, and several others after a League of Women Voters report accused him of making racist comments at a library board meeting, and the town responded by voting Jaros off the board. Further specifics of the case need not concern us here, except for this line from the court ruling shooting down Jaros’s claims (emphasis ours):

Regarding counts I and II, the court agreed with Farley and the League that the reported statement was not defamatory per se because plaintiff alleged “nothing * * * that’s defamatory regarding [his] inability to perform his office as a library trustee and nothing * * * concerning his ability to perform as an attorney.” At worst, the reported statement portrayed plaintiff as “somehow a racist,” which “in and of itself is not defamation.” The court also found that counts I and II lacked “sufficient facts” in alleging actual malice and provided only “conclusions.”

…

Plaintiff denies that he mentioned race or advocated rejecting people. He construes the reported statement as an “accusation of bigotry” or “racism,” which, he submits, prejudices his legal practice in that nonwhite, non-straight persons will be reluctant to retain his services as an attorney, out of suspicion that he is biased against them. We disagree that the reported statement impugns plaintiff’s character in a manner relevant to his profession as attorney.

…

Without doubt, a statement recommending the “reject[ion] [of] *** people different from white straight people” immediately strikes one as offensive. We cannot, however, base our analysis on the visceral impact of the statement but must analyze it dispassionately under the proper criteria. A statement is not defamatory simply because it paints the plaintiff as a bad character.

[Jaros v. Vill. of Downers Grove]

As both Revolver readers and the general public know, being presented as “somehow a racist” is far worse than merely being accused of being an incompetent or unethical professional. In the modern America civic ideology, “racism” is not mere “bad character,” it is an unthinkable taboo—practically a crime against humanity. Yet according to many courts, a false claim of racism is not inherently defamatory. This may have made sense forty years ago, but today such a standard makes no sense.

This is something that the courts have the power to change. But more importantly, it’s also something that state legislatures can change. Every state sets its own libel and defamation laws. A Republican legislature, right now, could pass a bill clarifying that false accusations of being a “white nationalist” or “white supremacist” (or a supremacist of any other race) are viewed by the state as utterances of fact, not opinion.  Moreover, they are defamation per se, and will expose one to hefty damages if they are knowing lies, or spread with a reckless disregard for the truth. There is no reason such legislation cannot be passed tomorrow.

Would this have a “chilling effect” on public discourse? Absolutely, and it should, just as publications today are “chilled” from labeling random citizens as pedophiles, adulterers, or domestic abusers. To borrow a line that supporters of cancel culture like to use, Americans wishing to smear others as “white supremacists” can keep their freedom of speech — but must forfeit freedom from consequences.

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