Is It Libelous to Falsely Call Someone a Racist, White Supremacist, Socialist, or Communist?

Many derogatory and even unjustifiable criticisms are treated only as opinions, which is why they cannot be legally brought to justice. For example, the claim that an individual’s facial expression in a video, especially one you have linked to, shows a “smirk”, rather than a painful smile, can be taken as opinion. A rational reader would interpret it as the poster’s subjective judgement about the subject and as speculation, not an assertion of fact. Here’s a summary of a federal court case.

Statements that Plaintiff is racists are simply expressions of an opinion and cannot be proved true or false. The North Carolina courts that appear to have addressed this matter do not seem to have any. However, there are many other courts who have dealt with the problem of defamation claims made based on allegations of racism or bigotry and have ruled the statements non-actionable. See, e.g., Stevens v. Tillman (7th Cir. 1988). (holding that no general statement charging someone with racism, unfair, or unjust nor references to general discriminatory treatments, without further, are provably false assertions de facto); Standing Comm. Standing Comm. (9th Cir. (9th Cir. 1995). (holding that labeling a judge as “antisemitic” is a non-actionable view); Ward v. Zelikovsky (N.J. 1994) (accusation that plaintiffs “hated Jews” nonactionable); Covino v. Hagemann (N.Y. Sup. Ct. 1995). (Dismissed Defamation Claim Based on Statement that Plaintiff was Racially Insensitive”), “an expression is not actionable for defamation no matter how offensive or vituperative it may be,” and “[a]Ccusations of prejudice and racism” were routinely found to be non-actionable expressions. Williams v. Kanemaru (Haw. Ct. App. 2013.) (Accusation of Racism based upon disclosed facts that are not actionable in defamation); Lennon v. Cuyahoga County Juvenile Court (Ohio Ct. App. (2006) (“Appellant being called racist was an opinion of one employee and is therefore constitutionally protected speech, so it’s not subject to defamation claims”

Also, it is not legal to accuse someone else of sympathizing with Communism or defending Communism. See, e.g., McAndrew v. Scranton Republican Pub. Co. (Pa. 1950); Clark v. Allen (Pa. 1964):

Common knowledge is that many patriotic Americans disagree about what actions, words, and policies help the Communist cause or show Communist tendencies. They also differ on what constitutes an “appeasement of Communism” or what qualifies as a pro-Communist.

While these words and expressions have a different meaning or meanings for very many Americans and often are undoubtedly intended to be derogatory, they are not libelous…. These words and any other expressions would be considered libelous and could effectively stop searching for and illuminated discussion. This will likely lead to dire consequences.

This is Judge Frank Easterbrook, who wrote in an overview of the reasons for his position. Stevens v. Tillman (7th Cir. 1983):

Word [“racism”]Overuse has made it a common term in political discourse. Stevens called Tillman racist. Stevens released a statement calling Tillman “racist” while her supporters were “bigots”. Formerly a “racist” was a believer in the superiority of one’s own race, often a supporter of slavery or segregation, or a fomenter of hatred among the races…. Politicians sometimes use the term much more loosely, as referring to anyone (not of the speaker’s race) who opposes the speaker’s political goals—on the “rationale” that the speaker espouses only what is good for the jurisdiction (or the audience), and since one’s opponents have no cause to oppose what is beneficial, their opposition must be based on race….

It has also taken on intermediate meanings. The speaker may use “she is a racist” to mean “she is condescending to me, which must be because of my race because there is no other reason to condescend”—a reaction that attaches racial connotations to what may be an inflated opinion of one’s self — or to mean “she thinks all black mothers are on welfare, which is stereotypical.” This kind of meanings are acceptable within the context of name-calling immunity.

Language has the ability to be levelled. If a word has strong meaning, it can be used in rhetoric. The power of one word is enough to convey an image. The plantation owners had blacks held in chattel slavery. 100 years later, governors declared that “segregation is permanent.” This was the first time anyone knew what a “racist”. You can use the strength of this image.

Orators used the term to create emotional impact by using it without strong reasons, shading the meaning a bit. If any remnants of the original meaning are left, the tendency is to invoke the word to increase its meaning rather than conveying a clear meaning. It is possible to regret the loss of the word’s meaning, particularly if there isn’t a ready replacement. However, we are a court for law and not language. We cannot force speakers to adhere to the older meanings.

Everyday “racist” can be hurled around so randomly that it’s a mere verbal slap in one’s face. The target has the option to slap back (as Stevens did). If it suggests the existence of undeclared, defamatory facts Stevens isn’t able to take action.

Now falsely accusing someone of a specific act—e.g., of firing or prosecuting someone because of the target’s race—may well be libelous. For example, you might incite someone to commit a crime. Phila v. MacElree Newspapers, Inc.(Pa. 1996) The court found that plaintiff’s characterisation of his conduct as “abusing his authority as the District Attorney, an elected position to further racism, and his own aspirations”, could be actionable. The court emphasized that this statement was more than a “merely label”.[ the plaintiff] a racist”The plaintiff’s statements were actionable as they focused on the actual actions of the plaintiff rather than on his beliefs.[ed]A charge of misconduct in office.”

Falsely claiming that “Kyle Rittenhouse was a white supremacist”, or “Saule Olavova is a Communist” is not libelous because it is an opinion. However, falsely claiming “Kyle Rittenhouse has joined the KKK” and “Saule Olavo is a Communist Party USA Member” is not libelous – unless context proves otherwise.