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Apr 19, 2017

The Dilemma of Group Libel: How big is it?

My latest column for the South Carolina Press Association:

An ongoing story in the state in recent weeks has been the suspension of the Coastal Carolina University cheerleading team amidst allegations that some team members worked as strippers and escorts, provided alcohol to minors and paid other students to do their coursework.

While the investigation continues, the allegations have been made against the 20-member cheerleading team as a whole: so far, no individual members of the team have been publically identified as having specifically done anything improper. Of course, many on the Coastal Carolina campus – and beyond – likely can identify at least some of the cheerleading team members. But can the allegations against the team – or, more precisely, unspecified members of the team – be the basis of a libel lawsuit?

Libel law is based on the premise that an individual can be compensated for a proven injury to his or her personal reputation. Thus one of the basic requirements that a plaintiff must show in a libel case is that the statement at issue was “of and concerning” the plaintiff, since it is that individual’s reputation that is protected by libel law. Without a showing that the statement that led to the lawsuit actually refers to the plaintiff him or herself, a plaintiff’s libel claim is likely to be easily dismissed by the court.

Often, determining whether a statement is “of and concerning” the plaintiff is easy: if the person is mentioned by name, it is likely about them. (Although it could possibly be about someone who coincidentally has the same name. There have actually been such cases.) This is especially true if, besides the name, the statement uses characteristics or other information about the person who is the subject of the statement, and that information matches the characteristics of the plaintiff.

But the “of and concerning” formulation becomes problematic when a statement discusses a group, rather than an individual. Of course, a group entity – such as a corporation – can sue for libel, and would have to show that the reputation of the entity was harmed. But in order to win a libel case over a statement about a group, an individual plaintiff who have to show that the statement about the group injured the individual’s personal reputation, which is distinct from the reputation of a group of which the individual is part.

The general rule that courts have used is that at a certain point, a group is so large that “there is no likelihood that a reader would understand [a statement about a group] to refer to any particular member of the group,” as the federal Seventh Circuit Court of Appeals put it. There is no “magic number” threshold for this. But in the leading decision on this issue, a federal trial court addressed claims against the publisher of a book which alleged that “some” of the nine models and “all” of the 382 saleswomen at a Dallas department store were “call girls,” and that most of the store’s 25 salesmen were “faggots.” The court allowed the salesmen’s individual claims to proceed, but the dismissed the saleswomen’s action on the grounds that there were too many of them for the statement to relate to them individually.

But statements about some members of a group – that identify them as members of the group, but do not identify them individually – can libel the individuals in the group, depending on the nature of the statement. A general statement that some judges of the Oklahoma Supreme Court were corrupt was held to not be a defamatory statement about each individual member of the court, but a statement that all the members of the Oklahoma University football team used amphetamines and other drugs was held to be defamatory to each of the players individually.

The Coastal Carolina University cheerleading team is relatively small, with 20 members. And, of course, the members of the team will not be able to sue if the allegations against them are actually true. But journalists and others should always be careful when reporting on or discussing allegations against such a group, since group members who were not involved in any impropriety may be able to successfully argue that they were tainted with broad statements about the group as a whole.

Roof Release: Back in December, I wrote about federal judge Richard Gergel’s decision to close to the public and press a hearing into Emanuel AME Church shooter Dylan Roof’s competency to stand trial, and to represent himself in the case. At the time, Judge Gergel pledged that he would later release information from the hearing. Now, after Roof was convicted of federal charges and pleaded guilty to state charges, information from the competency hearing has been released. At the time of the hearing, Gergel recognized the right of public access to court proceedings, but ruled that releasing the information at that time could endanger the fairness of Dylan’s trial. By releasing the information, he has reinforced that court trials are a public process, which should be open to public scrutiny.

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