Slander or Opinion? Claims Of Racism and Defamation Fly After Education Council Member Is Seen Bouncing Black Child On Lap

download-4A 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 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” by articulating that standard that now applies to both public officials and public figures.

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.

 

296 thoughts on “Slander or Opinion? Claims Of Racism and Defamation Fly After Education Council Member Is Seen Bouncing Black Child On Lap”

  1. Boy, that sure is a pretty squirrel JT!

    WTF?

    Is there a law suit? You don’t mention one but use discussion of possible legal issues as excuses to show and discuss citizens on an obscure “educational council” with very limited power acting like jerks. Good work Sherlock, I bet this hasn’t happened anywhere else over other topics, and it must not stand.

    Hey, do you have one of those pocket lasers? I bet you can get most of your readers running up and down the hall trying to catch the beam.

  2. ‘Thus, Wrocklage’s denouncing the slander is likely as rhetorical as the allegation of racism from a legal perspective.’

    So, why does Turley spend so much time mired in this bull*&#@?

    Read the f*&^$()#paper. There are far more important things going on. Somehow this nonsense seems to entertain the level to which Turley panders.

    1. It’s about the “hits” which he proudly notes. That 80% are from racists and alt-right paranoids does not concern him and in fact he chums for them.

      1. Turley put his foot in the swamp. and now he’s neck deep. No articles about SCOTUS decisions, he deflects always on a bad Trump news day which is almost everyday. And you’re right bythebook just like Trump, all he cares about is his hits on the blog. Ratings is what it’s all about.

        1. And if loses in November, every single day between the election and inauguration will be like this.

          1. Playing cards would be fun with Turley, cause he’s got a tell. Ask yourself a question, why in the world would Turley go silent on SCOTUS decisions. Because if he was truthful with himself on Trump and Barr’s BS, Turley would lose his Trump base in a NY minute.

            1. Once again, you find yourself disappointed JT hasn’t quenched your thirst. He may have decided it wasn’t as consequential as you apparently believe. Here’s a portion of a very balanced analysis of the two decisions:

              The “doomsayers” who oppose Pres. Trump in these cases point out that in both instances the Court rejected the claim of “absolute immunity” for a President, which was an argument put forth by the President’s attorneys but not embraced by the Solicitor General of the United States. They point out that in both cases the Court upheld the proposition that subpoenas from Congress and a local prosecutor could be issued to a President for personal financial records. But both cases were sent back to the lower courts for further consideration of issues which the Supreme Court said were not sufficiently considered by those courts in reaching their decisions on the validity of the subpoenas issued. The nature of those issues are such that it would be quite easy for the Court to later turn around and invalidate those same subpoenas based on further information gathered as part of such lower court consideration.
              https://www.redstate.com/shipwreckedcrew/2020/07/09/the-supreme-court-gives-pres-trump-two-wins-in-subpoena-cases/

            2. Professor Turley’s “base” consists of the precious few who still want to conduct a reasoned and civil discourse. Obviously, that doesn’t include you!

    2. If you actually read what Turley wrote and noted that this is a legal blog that educates the public about the law you would never have made this comment. Here is Turley’s response.

      “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.”

        1. Ignorance. One can attempt to sue for anything.

          A better answer would be is there a suit that can win significant damages that are worth the resources spent?

  3. A new drinking game.. “Complete this thought!” Today’s celebrity guest is Robin Broshi, who has way too much influence over publicly-funded education than she should…

    “And I’m not trying to be a martyr! I’m trying to illustrate to you that you think I’m a f**k–… “

    So, members of the audience… COMPLETE THAT THOUGHT!
    I’ll start the ball rolling with “…wit?”

  4. It is increasingly difficult to take the constant screams of racism seriously when these same dimwits are silent about the random acts of violence that are committed on New York streets by black thugs, usually against elderly people or Jews, or when some black neighborhoods are overrun by black gang members and other thugs with bullets flying everywhere and so many black lives are thrown away. Do they really think that bouncing a friend’s baby on the man’s lap is worthy of such outbursts when nothing is said about the things that really hurt blacks. They could learn an important lesson by doing the supermarket test. Listen for a baby crying and try and guess the baby’s race or ethnicity. You can’t because all babies crying sound alike. Like babies in a supermarket, I suspect that the child on that man’s lap was laughing and having a good time because he has not yet been schooled about how evil white people are by idiots like Broshi and her comrades in arms. Is it still true that 60% of the graduates of New York public schools cannot take a college course without extensive remediation? Is it still true that the budgets for New York City schools is larger that the entire state budgets of Massachusetts and Connecticut combined? I bet there’s a lot about public education they could be talking about if they gave a damn about it.

    1. What a bunch of idiots who we let educate our children!

      Since they are your children they are your responsibility, not anyone else. Stop being a wuss.
      You are acting like ….your children

      Parents…families…it begins there.

      Delinquent parents produce delinquent children
      Bishop Fulton Sheen

      THE FAMILY AND SOCIETY

      2207 The family is the original cell of social life. It is the natural society in which husband and wife are called to give themselves in love and in the gift of life. Authority, stability, and a life of relationships within the family constitute the foundations for freedom, security, and fraternity within society. The family is the community in which, from childhood, one can learn moral values, begin to honor God, and make good use of freedom. Family life is an initiation into life in society.

      2208 The family should live in such a way that its members learn to care and take responsibility for the young, the old, the sick, the handicapped, and the poor. There are many families who are at times incapable of providing this help. It devolves then on other persons, other families, and, in a subsidiary way, society to provide for their needs: “Religion that is pure and undefiled before God and the Father is this: to visit orphans and widows in their affliction and to keep oneself unstained from the world.”12

      https://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c2a4.htm

      1. Anonymous– “It is the natural society in which husband and wife are called to give themselves in love and in the gift of life.. The family is the community in which, from childhood, one can learn moral values, begin to honor God, and make good use of freedom. Family life is an initiation into life in society.”

        Although I am sure the idiots on the Board would condemn “husband and wife” as homophobic, I think any thinking person would agree that the large number of unwed mothers in the New York school system is depriving their babies of the rich resources that a loving family offers, and this tragedy has been going on for some time. For a number of years, New York’s school system has provided special programs for “pregnant and parenting teens” (what a lovely way to say it), even to the point of having several high schools devoted solely to those teens. I wonder if the board ever talks about how to keep unwed teens from having babies?

        1. honestlawyer – I always told my female students to keep their legs crossed and the boys to tie a knot in it.

  5. First, what does any of this have to do with the function of the “education council?” What a misnomer. I’d replace all members if I lived there. Also, I saw a brief video of this exchange and Broshi was so screaming so much that there was absolutely no opportunity to discuss anything.

  6. Too many suits. This woman is crazy and the craziness is likely heightened due to the present environment with Covid and rioting. It reminds me of the dog incident in Central Park. Much about nothing. Too many people trying to tell other people how to act and think.

  7. Yeah, a total shite show for sure.

    So glad you called my attention to it rather than focusing on the mundane business of Stone twisting a commutation out of Trump by intimating on social media that he could’ve told the truth. Or that Barr now has completed the trifecta of taking out the heads of SDNY, EDNY and Washington D.C. in order to take control of, and squash investigations of Trump in those districts.

    Always keeping the priorities straight, JT.

        1. Johnny Buglife, Trump is the death cult messiah, just ask 135,000 dead Americans. And just trying to count the dead brains cells from Trump supporters with the help from JT is infinite.

  8. “Others then join in on attacking Wrocklage for having a black child on his lap.”

    “…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.”

    I can’t think of any way to respond to this whole affair other than to call it insane.

    It’s impossible to imagine having a rational conversation with people like Wrocklage’s accusers. They don’t want to converse; they want to dictate. That’s all there is to it.

  9. What’s amusing is the extent to which these horrid women fancy Wrockledge should adopt the mentality commonly ascribed to battered wives. Can you imagine being married to one of these harpies?

  10. 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.

    I’m sure ‘engagement’ will work real well with this crew.

  11. Robin Broshi is an exemplar of how the process of emptying state asylums was too thorough.

    Seriously, the schools have real problems to which they’re not giving attention. Instead they’re whinging about fictional problems that have no reality outside their imaginations. When the world is run by serious men, such people are ignored and (if necessary) escorted out the door. The last of the serious men shuffled off into retirement around about 2003.

    1. I read the quotes with a sense of disbelief.

      At first it was like reading “Alice in Wonderland”, but there was no wit or humor.

      Then I realized that Ms. Broshi is crazy.

      1. Have you ever thought you might go to hell? Consider this, hell is is being in close contact with Ms. Broshi.

  12. White Fragility is a diatribe with no citations written to make whites feel guilty. It is being made required reading on campus, both colleges and secondary. That the woman (and I use the term loosely) demands that he read the book or some other Marxist diatribe is obnoxious on its face. She can be guilty, he does not have to be. She was offended because he was bouncing his neighbor’s black baby on his knee. She needs to get a grip on reality. She did defame him, although I am not sure there is a cause of action.

    1. You make an excellent point, Paul.

      White Fragility may rise to the academic standards of socilogy, but if it does, that says more about the intellectual rigor of the social sciences than it does about any one, white, black or brown. It’s an extended essay, and no one ought to be made to change their behavor based on its prescriptions.

      I think that, unfortunately, too many people believe in what physicist Richard Feynman called “cargo cult science”. Sociology and its offshoots wrap polemic in the language of science loosely, and say they’ve proven “white fragility” or something else based on the emotions of essay writers, not on traceable science – solid assertions based on observation, the scientific method, and rigorous reality testing.

      Wrocklage’s best recourse is to find another avenue for his energy and efforts. Anyone who can be assailed with as little evidence as Wrocklage was in a meeting of purported professionals (some of whom claimed to speak for people who were upset about a video of a white man expressing appropriate affection toward a child of a friend) should probably work elsewhere. Mr. Wrocklage has been singled out for obloquy, I suspect for political reasons. Wrocklage will never get a fair hearing on charges of “racist behavior” from that council because they base their charges on political essays which don’t meet the burdens of objective proof.

      The social sciences are now such a shambles that proving racism in the current politically-charged environment is impossible – “racism” is whatever it needs to be to extract lucrative compensation from people with no personal, provable guilt of malicious action toward others.

      1. Sociology and its offshoots wrap polemic in the language of science loosely, and say they’ve proven “white fragility” or something else based on the emotions of essay writers, not on traceable science – solid assertions based on observation, the scientific method, and rigorous reality testing.

        Again the broad pushing ‘white fragility’ is the issue of a teacher training faculty, not a sociology faculty. She’s never undertaken a serious quantitative research project.

      1. America has been fundamentally transformed – the press has helped the Democratic Party legitimize street violence by its stormtroopers in BLM and antifa as a legitimate means of shaping public policy.

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