Assume that I call you a racist. Is that defamatory? Remember: Truth is a defense.
Let's be more concrete. Assume you run a company that employs a lot of low-skilled laborers. Assume further that the IRS contacts you in connection with an audit and tells you that 231 of your current employees have invalid social security numbers -- which is common for undocumented/illegal immigrants -- and that you could be penalized a substantial amount for employing such individuals. You then tell each of these employees that they better give you a right social security number within 30 days. Only one does so, with several others admitting that they were in the country illegally. For everyone who can't (or doesn't) give you a valid social security number, you send 'em another letter giving them another 30 days, and when they can't (or don't) provide the required information, you fire them.
The fired employees, and other activists, then take to the streets. Calling your company "racist" for its acts, which disproportionally affected -- as you might imagine would be in the case -- Hispanics. The company then sues for defamation. Defendants file an anti-SLAPP motion -- as, again, you might expect -- arguing that their speech is protected and that their assertions are opinion and are not demonstrably false.
Who's right?
On the one hand, I'm pretty convinced that the company didn't fire the employees on account of their race. Or gender, or anything else that's protected. They fired them because they couldn't provide valid social security numbers, and were probably undocumented/illegal immigrants. Either way, they were someone who the company could get in trouble for employing. So I'm confident that any inference that the company fired people on account of their race is demonstrably false. As indeed the employer would undeniably prove, even on summary judgment, were any of the fired employees to sue for race discrimination.
On the other hand, what does it mean to be a "racist," or to be called such during a labor dispute? After all, your act did indeed have a disproportionate effect on a particular racial group. Maybe what we're saying is that you engaged in a "racist" act because it had such an effect. Or, more accurately, that you were insufficiently sensitive to such consequences, and were all-too-willing to engage in such an activity -- that you should (and would) have borne the risk of IRS scrutiny if the affected workers had been of another race. Or maybe calling someone a "racist" is simply an inherently subjective assessment, and not "demonstrably false" for purposes of defamation law.
So see who you think's right in this one. I've slightly changed (and added to) each side's arguments. But you've got both a majority opinion and a dissent. Who comes out the winner?
P.S. - I can't believe the Court of Appeal didn't initially publish this one. It not only meets the standards for publication, but is also thought-provoking. Good call to publish it. Albeit belatedly.
