A New York City education council meeting recent attracted national attention after one member of the council (and its past President), Robin Broshi, accused another member,  Thomas Wrocklage, of racism after he was seen in a zoom meeting bouncing a black child on his lap. The video below is rather breathtaking but the incident has led to countervailing claims of racism and slander.  As is often the case, we tend to jump on any novel torts claims and this is a good example of the tension between opinion and slander, particularly in such overheated (indeed radioactive) moments in public debates.  It is unfortunately an increasingly common legal question in today’s rage-filled politics. The video of his meeting has now been shown throughout the world.  However, it has some interesting elements as a pedagogical tool for understanding the underlying applicability of tort liability, or lack thereof.

 THE FACTUAL BACKGROUND

The entire 4-hour council meeting is available but here are the highlights. It began with references to a prior “ugly” meeting and a call for more civil discourse by President Maud Maron who notes that “it is possible to condemn racism and at the same time to extend grace and compassion to the people who disappoint you.” That hope however is quickly dashed whenCouncil member Eric Goldberg denounces her “hollow” statement as  “deny[ing her] culpability in creating an environment of division and divisiveness.”

That is when Broshi enters with a bang and refers to a letter campaign and adds:

“a member of this council was racist and I did nothing and I’m ashamed I did nothing and I can sit here during a public meeting and say I’m sorry, I made a mistake, I didn’t speak out verbally when multiple times during the meeting one of the members engaged in behavior that made me ache and hurt for the non-white people that were logged in.”

With that, the meeting was off to the races with allegations of racism and slander.

Ironically, it is Broshi who is then accused by Council Vice-President Edward Irizarry. Irizarry states:

“You, in your comfortable white world can tell us about how we ought to reach down and help the poor Latino, and help the poor black, condescendingly look at us as though we are inferior. Because never, do I see anyone, or any of these advocates, really in communion with these poor students that are not getting the education that they deserve… We don’t want handouts… Cosmetic diversity, that’s what you’re looking for, you’re not looking for true change. You’re not looking to really educate all of the people of this district.”

Broshi then denounces her own white supremacy:

“I want to apologize to you.  I want to acknowledge that calling out the one vote was an example of white privilege and it was an example of trying to silence the legitimacy of your space on this council . . . . There’s work — everyone has work to do and I have work to do.  I have 40 plus years of white supremacy I need to undo and that was unfair of me to make that point and I don’t want to silence your voice, and your voice has merit, Edward.”

It is then that it is clear that Wrocklage was being referenced as a racist earlier and denies the allegation but Broshi again refers to his “racist behavior” and his example of “white people exhibiting their power over people of color.”  She further notes “if you won’t even read a book about white fragility . . . I can’t sit here in a working  business meeting and educate you.” (This issue of the book was raised repeatedly: “Tom! I’ve explained it to you! You can Google, you could read a book!”. “Read Ibram X. Kendi! Read White Fragility! Read How to Talk to White People… It is not my job to educate you! You’re an educated white man! And you could read a book! And you can educate yourself!”).

Well you get the idea, but here is a clip:

This is the relevant transcript:

Morden: During our last meeting you were talking about someone’s friend on someone’s lap when there were actual kids who were saying there are racist acts in your school! Sad! You are sad! But today you want to talk about…

Broshi: Ben!…It hurts people when they see a white man bouncing a brown baby on their lap and they don’t know the context! That is harmful! It makes people cry! It makes people log out of our meeting! They don’t come here! They don’t come to our meetings! And they give me a hard time because I’m not vocal enough! And I’m not trying to be a martyr! I’m trying to illustrate to you that you think I’m a f**k–excuse me–you think I’m a social justice warrior! And you think I’m being patronizing and I’m getting pressure for not being enough of an advocate! And I take that to heart and that hurts me! And I have to learn to be a better white person!

Wrocklage: I would like to know before this meeting adjourns how having my friend’s nephew on my lap was hurtful to people and was racist. Can you please explain?

Broshi: Tom! I’ve explained it to you! You can Google–you can read a book! Read [inaudible]! Read White Fragility! Read How to Talk to White People! It’s not my job to educate you! You’re an educated white man! You could read a book and you could learn about it yourself!

Others then join in on attacking Wrocklage for having a black child on his lap.  Emily Hellstrom joins in attacking Wrocklage and demands an apology:

“You had a smirk and a grin on your face when you pulled that child in… you in a joking tone, said ‘my living room is integrated right now’… as if, as if, the hundreds of years of first slavery and then segregation were nothing, would go poof, because you happened to have a black friend… So the fact that—and perhaps you didn’t intend it to be racist—and that does not matter, actually, was racist… You need to look deep inside and say ‘wow, I hurt a lot of people.’ Whether you intended to or not, you did.”

Wrocklage insisted “I was also laughing at the absurdity of the cognitive dissonance of people like you. People exactly like you, who are telling people of colour how they should feel. How absurd that is.”

However, Council member Shino Tanikawa also demanded an apology from Wrocklage:

“If you’re not willing to read then you’re not doing the work. And this is work we all have to do. And you can disagree with people but this is not an ideological difference. This is how black and indigenous people of color see the world. And it’s not for you and me—East Asian affluent person–to deny that reality. And we have to get on board, we have to understand what these people are telling us, we have to do the work, we have to get uncomfortable. But I don’t see some of you willing to do that uncomfortable work.

…When somebody tells you that you did something wrong, the first thing to do is reflect on that and then apologize, even if you don’t agree, you apologize… That is what grown-ups do.”

That is just a part of the meeting, but it raises a common question for meetings and protests where such allegations fly of racism and other forms of bias.

PRIVATE CITIZEN OR PUBLIC FIGURE?

The first step is to determine the status of these council members. Until this meeting became an international sensation, none of these individuals were high visibility individuals.  However, they are council members who appear at public meetings, including current or former officers of the council.  A claim could be made that they are all at least limited public figures, if not full public figures, due to their thrusting themselves into the public eye. There is however a claim to be made that participating in such public meetings should not cause a private citizen to trigger the higher burdens of being a public figure.  This video has gone viral but, until it did so, this was a small educational council meeting with an open mike.  That threshold issue could create some very interesting arguments over the tipping point for public figures.

This issue will turn on Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases.  The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).  Given the earlier controversy from the preceding meeting and the letter campaign referenced by Broshi, a court could find that Wrocklage is a limited public figure but there is a room for challenge on this point.

THE STANDARD

Under New York law, Wrocklage must show (1) a “defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault [(actual malice for public figures)]; (4) falsity of the defamatory statement; and (5) special damages or per se accountability (defamatory on its face).” Biro v. Conde Nast, 883 F. Supp. 2d 441, 446 (S.D.N.Y. 2012).

The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth.

THE ALLEGED DEFAMATION

At various points, it is clear that Wrocklage is being called an effective racist, which Wrocklage objects to as slander.  There is no question that an allegation of racism is a serious matter but Broshi could challenge the basis for claiming a per se category of defamation.  New York recognizes four categories: “statements (i) charging plaintiff with serious crime; (ii) that tend to injure another [plaintiff] in his . . . trade, business, or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.” Liberman v. Gelstein, 605 N.E.2d 344, 347 (N.Y. 1992). This is not an allegation of a crime, but it certainly would injure the professional reputation of Wrocklage to be labeled a racist.

Yet, a defamatory statement “must do more than cause discomfort or affront”; it must lead “reasonable minds” to “think the speech attributes odious or despicable characterizations to its subject.” Chau v. Lewis, 771 F.3d 118, 127 (2d Cir. 2014). In this case there are countervailing statements that Wrocklage is being accused of acting like a racist rather than being a racist.  For example, consider Broshi’s later comment:

“Integration is a system. Tom I don’t know what to tell you, I know you believe you did nothing wrong, but you have a 100 people that told you—I am not calling you racist… I’m saying that was racist behavior. . . We are all capable of racist behavior. I am capable of racist behavior… I owned up to it in this meeting! Right now, when I apologized to Edward… And we should apologize when we offend people of color! When they get upset. When they say this is a harmful space, when they log out of a meeting immediately because they see white people exhibiting their power over people of color… If you can’t even read a book about White Fragility or Ibrahim X. Kendi, I can’t sit here in a working business meeting and educate you about the distinction between interpersonal racism and systemic racism.”

 

For Wrocklage, the distinction between acting racist and being racist is a precious one.  He is still being denounced as effectively or actually a racist.

That however leads to the next complication: opinion or hyperbole.  The Supreme Court actually dealt with such an overheated council meeting in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:

It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.

Of course, calling someone repeatedly a racist is more than simply “rhetorical hyperbole.” However, it is also part of a public debate that is heavily laden with protected political speech.  If Broshi can be sued for defamation in making such an allegation, it could chill political speech at a time when the entire nation is focused on our continuing struggle with racism.  This is her opinion of the actions of Wrocklage– an opinion that has been subjected to both worldwide criticism and support.

Yet, the Supreme Court has shown that there are limits to opinion as a defense as in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). In that case, there was another inflammatory allegation stemming from a public meeting.  An Ohio high school wrestling coach sued over an opinion column alleging that he had lied under oath at a public hearing, saying that it was tantamount to an allegation of perjury.  The trial judge granted summary judgment on the ground that the assertion in the newspaper column was opinion.  The Court however rejected the defense in the case in 7-2 opinion written by Chief Justice William Rehnquist. The Court noted that “expressions of ‘opinion’ may often imply an assertion of objective fact”  and may inflict “as much damage to reputation” as factual claims. Moreover, some opinions are based on assertions that are “sufficiently factual to be susceptible of being proved true or false.”

I would submit that calling someone a racist is not one of those facts easily “susceptible of being proved true or false.”  Moreover, the risk to chilling political speech is too great, particularly when the meaning and systemic presence of racism is being debated throughout our society.

THE VERDICT

Thus, Wrocklage’s denouncing the slander is likely as rhetorical as the allegation of racism from a legal perspective.  That does not excuse any of these attacks, but the recourse for Wrocklage is to engage his critics in the court of public opinion, as he has with a global audience.