Dirty T-Shirt Defamation

Submitted by Gene Howington, Guest Blogger

Is an opinion defamation?  Is it defamation if it is worn on a t-shirt?  Is it defamation if you post a picture of yourself wearing said t-shirt on Facebook?  Is the manufacturer liable for civil damages a purchaser of their t-shirt incurred since they wrote the content later found defamatory?  An unusual case in Spain raises these questions and more.

A woman in Madrid, Spain is certainly perplexed by a court ruling that found her guilty of a “dignitary tort”. She was sentenced and initially ordered to pay 2,000 euros ( ≈ $2640) in damages and a 240 euro-fine ( ≈ $317), but the court later reduced the damages on appeal to 1,000 euros ( ≈ $1320) and eight days of house arrest in lieu of the fine.  Adding insult to injury, the claimant – her ex-husband – asked that the damages be paid in installments to supplement his 700 euro per month income ( ≈ $924 per month).

This is a cause of action here is one we do not have an exact analogy for in the United States, but defamation is close.  Historically, the primary dignitary torts recognized in English and subsequently American law are battery, assault, and false imprisonment.  These torts still exist under modern American tort law, but they also have criminal law counterparts because they contain elements of violence.  Under modern jurisprudence, the term dignitary torts is more closely associated with defamation (slander and libel), false light, intentional infliction of emotional distress, invasion of privacy, and alienation of affections. In some jurisdictions, the use of the phrase “dignitary torts” is limited to those torts which do not require the threat of or actual physical injury. What was required in the present Spanish case was that the statement in question insulted someone’s dignity and effectively damaged that person’s reputation.

What did this woman do to merit this punishment?  She posted a picture of herself to Facebook wearing a t-shirt with a slogan on it.  Her boyfriend bought it for her while they were on vacation.  It’s the kind of “gag t-shirt” commonly sold around the world.  What did the shirt say that was so offensive?  I’ll tell you below the fold.

The woman, who had been divorced for several years, was wearing a t-shirt that said, “Mi exmarido es gilipollas”.  Just like the tort in question has no exact English analog, neither does this phrase, but it roughly translates as “My ex-husband is an asshole”.  The reason for the lack of precise translation has to do with the insulting word “gilipollas”.  My Spanish is weak to the point of being non-existent, but according to The Register, “[t]he word gilipollas is a top-notch Spanish insult. It doesn’t have an exact translation in English, but conveys the sense of an obnoxious arsehole with an added touch of ‘self-aware’ stupidity in the gilipollas in question.”

What is curious about this whole scenario is that the statement itself seems to be opinion.  Not only is opinion protected free speech under U.S. law, it is protected under Spanish law as well.  Article 20, found in the First Section, Title I, Chapter 2 of the Spanish Constitution “recognizes the ‘right to express and freely disseminate thoughts, ideas and opinions through spoken word, text or any other means of communication’”.  Freedom Of Speech In American & Spanish Law: A Comparative Perspective by Alfredo Coll (2010).

In fact, as a matter of comparative law, the Spanish Constitution’s Article 20 protection of free speech is quite robust and explicit compared to our own 1st Amendment.

Article 20
1.The following rights are recognised and protected:
a) the right to freely express and disseminate thoughts, ideas and opinions through words, in writing or by any other means of communication;
b) the right to literary, artistic, scientific and technical production and creation;
c) the right to academic freedom;
d) the right to freely communicate or receive accurate information by any means of dissemination whatsoever. The law shall regulate the right to invoke personal conscience and professional secrecy in the exercise of these freedoms.
2. The exercise of these rights may not be restricted by any form of prior censorship.
3. The law shall regulate the organisation and parliamentary con-trol of the social communications media under the control of the State or any public agency and shall guarantee access to such media to the main social and political groups, respecting the pluralism of society and of the various languages of Spain.
4. These freedoms are limited by respect for the rights recognized in this Title, by the legal provisions implementing it, and especially by the right to honour, to privacy, to personal reputation and to the protection of youth and childhood.
5. The confiscation of publications and recordings and other information media may only be carried out by means of a court order.” Spanish Constitution of 1978,  First Section, Title I, Chapter 2, Article 20 [emphasis added]

Compared to . . .

Amendment 1 – Freedom of Religion, Press, Expression.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  U.S. Constitution, 1st Amendment.

While there is American jurisprudence that addresses many of the items specifically mentioned in the Spanish Constitution, the relevant point of similarity is that both legal systems recognize opinion as protected free speech.

Is calling your ex-husband (or ex-wife) an asshole – even the fancier more detailed insult of gilipollas – an opinion and protected or is it actually defamation?

I’m pretty sure that not only is it protected opinion and should be recognized as such, but it is probably a common and generally socially expected opinion among divorcees of either gender.

Did the Spanish Court err in this holding and infringe upon free speech?

What do you think?

Source(s): Huffington Post, The Register, Yahoo! Finance Currency ConverterFreedom Of Speech In American & Spanish Law: A Comparative Perspective by Alfredo Coll (2010) (.pdf), The Spanish Constitution of 1978 (.pdf, English translation)

~Submitted by Gene Howington, Guest Blogger

48 thoughts on “Dirty T-Shirt Defamation

  1. Doesn’t seem to be opinion, as Fox pointed out, when the ex took her to court over this he proved her point.

    Now she can wear a shirt with her opinion of the court…but again it wouldn’t be opinion…it’d be a FACT!! LoL

  2. 4. These freedoms are limited by respect for the rights recognized in this Title, by the legal provisions implementing it, and especially by the right to honour, to privacy, to personal reputation and to the protection of youth and childhood.
    ————————–
    the white glove thrown, the duel was lost

  3. It’s nanny government making adults “play nice.” It is clearly opinion and maybe even well-founded opinion by a person in position to know, but it is not violative an any law worth having.

  4. Opinions based upon fact…. Probably not…. Private embarrassing information used for harassment of a private individual…. You betcha….. The common law not codified in statues is still valid law….. Every state in the US recognizes the core principals of the right to privacy…. I had the occasion to verify this fact recently….

  5. mespo7272721, March 4, 2012 at 8:35 am

    It’s nanny government making adults “play nice.” It is clearly opinion and maybe even well-founded opinion by a person in position to know, but it is not violative an any law worth having.
    ————————————————-
    so any law that you decide is ‘not worth having’ is breakable as opposed to changeable? [ :) ]

  6. Just one of millions of examples. The Judiciaries of the worlds will continue to suppress and usurp individual rights and I suggest that as long as the Judiciaries are maintained under any sort of political system, they will continue to be the primary cause of the protection and confiscatory cartels that governments have always been. Most of the problems facing mankind through out history and today can be isolated as being caused by some level of government granted monopoly such as central banks or of the resultant monopoly power itself gained through licensure laws. Has not prohibitions such as alcohol and drugs grant monopoly power to the drug cartels and gangs. Try to compete against then and see where you end up; dead or in prison. No society wants to acknowledge that our fine upstanding Judges are in fact a part of the criminal conspiracy to provide protection to some and usurp the rights of others for money, privilege and power. Sadly breaking down this power has been histroically imprudent to those who attempt to alter the system. Even the lawyers are afraid of the system they work in. Try getting a lawyer to sue a Judge, another lawyer or the IRS. There is only one way in my opinion and in reality it may even be futile. http://rsjexperiment.wordpress.com – Repairing the Scales of Justice.

  7. Woosty:

    “so any law that you decide is ‘not worth having’ is breakable as opposed to changeable? [ ]

    *******************

    That’s what Jefferson said.

    “No one has a right to obstruct another exercising his faculties innocently for the relief of sensibilities made a part of his nature.”

    -~Thomas Jefferson (Letter to Pierre Samuel Dupont de Nemours, 1816).

  8. H. Skip Robinson:

    “Even the lawyers are afraid of the system they work in. Try getting a lawyer to sue a Judge, another lawyer or the IRS.”

    **********************
    I’m not sure where your info is coming from but I know plenty of lawyers who sue the IRS, BOP, DOD, other lawyers, and, yes, even judges. Done 2 out of 4 myself.

    Here’s a wonderful example by laywer Scott Milliard whose client was being pilliored by Judge Kenneth Post about when he last had used drugs:

    JUDGE: “I’m not interested in what you think [about the defendant’s right to invoke the Fifth Amendment]. Haven’t you gotten that yet?”

    MILLARD: “I have gotten that, and I…understand that, and your honor, the court fully, certainly has the right to not care what I say. How—“

    JUDGE: “Thank you. Then be quiet.”

    Then, speaking directly to Millard’s client…

    JUDGE: “When was the last time that you, the date that you last used controlled substances, sir?”

    Millard then interrupts to prevent his client from answering…

    JUDGE: “One more word, and I’m going to hold you in contempt.”

    Then the judge did just that and sent Millard to jail, where the 29-year-old lawyer would have remained over the weekend if another judge had not ordered his release.

    That’s putting your money where your mouth is. Namby-pambys need not apply to this profession.

    Let me know if you need a referral.

  9. I would bet that if this had been a case of a man wearing a t-shirt that said his ex-wife was an asshole, the judge would have thrown the case out of court.

  10. firefly raises another interesting question: is this verdict a cultural product of the well known Spanish personality trait “machismo“? A dual cultural and gender bias?

  11. It is not what she did wearing the T shirt.It is what humans did to her. I do not see Jesus in the legal system.. A human does not know when their life will end..Therefore being like Jesus is who is forgiving is extremely important more than you know.The legal system does not glorify God.Not glorifying God makes him sad. God in that woman is sad. leaving her alone would make her glad. Give her joy. That is what we need to do.

    ]Eliminating indecent exposure will humble humans decreasing, and or eliminating shirt incidence like what happened to that woman.

  12. It is not what she did wearing the T shirt.It is what humans did to her. I do not see Jesus in the legal system.. A human does not know when their life will end..Therefore being like Jesus is who is forgiving is extremely important more than you know.The legal system does not glorify God.Not glorifying God makes him sad. God in that woman is sad. leaving her alone would make her glad. Give her joy. That is what we need to do.

    Eliminating indecent exposure will humble humans decreasing, and or eliminating shirt incidence like what happened to that woman.

  13. It would be interesting to see what would have happened in Firefly’s example. I think the Male would have won.
    Mespo,
    Great example of an attorney “spitting in the eye” of an out of control judge.

  14. Gene H.
    Not to be contrarian, least of all with you. Smile.

    But yes, Spain has machismo. But the young women say screw you, as this one did. As for justice being corrupted by such influence, I would hope you also consider the USA system as being so, if not as much. At least we have discovered the codification of restrictions in Spain. How easy is that to find in the States?
    Not rebutting, but being a layman am curious.

    One also has to consider the fascistic and RCC influence. It would take your skills to dissect them.

    PS My doctor in Thailand was reknown for the number of Siamese twins he had successfully separated. A wise and wonderful man.

  15. That’s what Jefferson said.

    “No one has a right to obstruct another exercising his faculties innocently for the relief of sensibilities made a part of his nature.”

    -~Thomas Jefferson (Letter to Pierre Samuel Dupont de Nemours, 1816).

    —————————–
    :)

    I love that, but then why shouldn’t the Judge call out the druggy?

  16. The judge was out out of line wootsy….. The judge was proceeding with the judge’s agenda…. The man was on the stand, under oath and he could have subsequent criminal charges based upon his own statements…..just saying….

  17. id707,

    “As for justice being corrupted by such influence, I would hope you also consider the USA system as being so, if not as much. At least we have discovered the codification of restrictions in Spain. How easy is that to find in the States?”

    Easy enough. The U.S. judicial system has a number of problems including examples of gender biases that run both ways, both rational and irrational. You’ll find over time that I’m equally critical of all three branches of our government. Actually I’m critical of all governments, not just ours. They all suck, just in different ways just as most (but not all) of them have their strong points. The purpose of this article wasn’t to finger point at Spain and give them some nanny nanny boo boo. There are some very admirable traits to the Spanish legal system and its practitioners just as there are for the American system. It was merely to point out the seeming absurdity of the verdict in light of the evidence applied to the charge and apply a bit of critical scrutiny.

  18. Gene H.
    “It was merely to point out the seeming absurdity of the verdict in light of the evidence applied to the charge and apply a bit of critical scrutiny.”

    That was something I did not understand was the purpose.
    I thought it was culture corrupting the justice system—-or maybe it was.
    Will think about it and see if it will be clearer. SMILE.

  19. “I’m pretty sure that not only is it protected opinion and should be recognized as such, but it is probably a common and generally socially expected opinion among divorcees of either gender.” Gene H.

    “Did the Spanish Court err in this holding and infringe upon free speech?” -Gene H

    My 2-cents, as a non-lawyer: “protected opinion” and :-) to the rest of the first quote…

    Yes, regarding “error” on the part of the Spanish Court.

    Now, where do I get one of those t-shirts… ;-)

    (Thanks for the 10:14 am comment, mespo. What happened to that judge? Is he still on the bench?)

  20. AN,

    Not to appear to be stalking you…. But….to answer your question to Gene…..based upon the laws in other countries…. It is a crime to call people of some status assholes….. They are called dignitaries crimes…. That is what Amanda Knoxs parents are being charged with in Italy….. They defamed the prosecutor by calling him stupid, a criminal and other names….. Here in the US they use homeland security and hide you…. Only kidding….about here… Or may be not….

  21. I will write a book on my life’s experiences. Thank you for allowing my sister Margaret Dick post here.

  22. AY,

    Thanks for the information, clarification, correction… Admitting ignorance is, hopefully, a virtue… This is the first that I’ve heard of “dignitary crimes” and had no idea that that’s what A. Knox’s parents have been charged with… But in the AK case, they’re calling a judge “a criminal” whichsounds like it might be construed as defamation…

    Now, in my opinion, the following might be defamatory:

    A woman wears a t-shirt of her husband with his picture on it and the caption: “My ex-husband is a liar”… or, “My ex-husband is a liar, I mean… lawyer.”

  23. AN,

    The easiest one in the US is to say someone has herpes or some other STD…. Or to say a woman is unchaste…. Used to be a big deal….

  24. well, I must say, that I still have a problem with the t-shirt thingy in LIGHT of that written law. Doesn’t the law point exactly to that sort of public discourse when it says ‘…the right to honour, to privacy, to personal reputation and to the protection of youth and childhood’.
    I’m not against t-shirt opinionating but who knows ( beyond what the scenario tells us) what exactly had transpired between the ex and the woman and her boyfriend and also any kids and friends and blah blah blah. If the divorce was recent there is a potential for a lot of stigma and social and emotional damage, he may not be the only asshole.

    The bigger crime is the amount of harm that people seem capable of leveling at each other for even smaller infractions…and that we have to actually litigate about it.

  25. Woosty’s still a Cat 1, March 4, 2012 at 5:05 pm

    he may not be the only asshole.

    The bigger crime is the amount of harm that people seem capable of leveling at each other for even smaller infractions…and that we have to actually litigate about it.

    ———–

    Woosty,

    All good points… ( :-) to “he may not be the only asshole” )

    About “the bigger crime…”, we’ve reached an all-time low, it would seem…

  26. The word literally means “licks chickens” or “chicken licker.” Think of a word for a male chicken, and you’ll get it. But the word’s “real” or figurative meaning is more like “a**hole” or “jerk” than “c***sucker.”

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