Thirty years after the late D.C. Mayor Marion Barry’s famous statement, House Speaker Nancy Pelosi declared that a Salon owner set her up in an embarrassing incident where Pelosi was shown not just violating San Francisco’s pandemic laws in getting her hair done but not wearing a mask while doing it. Pelosi refused to take responsibility for the violation (including the failure to wear a mask) and, in the tape below, only took responsibility to “failing for a set up.” She added “I think that this salon owes me an apology, for setting me up.” The Salon owner, Erica Kious, has stated that she expects to close eSalon after receiving a torrent of death threats and hostile massages after Pelosi’s allegation. The question is whether she could actually sue for defamation.
Speaker Pelosi has previously used the eSalon, according to Kious, and was shown below on Monday getting her hair down despite a ban on salons for such appointments.
While not addressing her failure to wear a mask, Pelosi publicly attacked the Salon.
Pelosi’s lawyer Matthew Soleimanpour further made damaging statements about Kious: “The fact that Ms. Kious is now objecting to Speaker Pelosi’s presence at eSalon, and from a simple surface-level review of Ms. Kious’ political leanings, it appears Ms. Kious is furthering a set-up of Speaker Pelosi for her own vain aspirations.”
Carla Marinucci, a senior Politico reporter covering California, made her own veiled allegation in suggesting that the tape itself might be illegal: “Have to ask upon seeing this: Is it legal in CA — a ‘two party consent’ state — to videotape someone in a private home or business without their consent?” That reference to the politics of the owner further suggests an improper political hit job.
Marinucci’s question is not defamatory, though it is curious that the focus was on the legality of having the security camera footage as opposed to Pelosi’s conduct.
The incident was reminiscent of Chicago’s mayor, Lori Lightfoot, getting a haircut after warning Chicagoans that they cannot go to barbers or salons in a mocking tone. For Pelosi, the incident was particularly embarrassing after just blasting President Donald Trump for setting a “bad example”in allowing people to gather for his nomination acceptance speech without masks or social distancing. Pelosi was also previously criticized when the pandemic was unfolding for calling people to Chinatown in San Francisco to demonstrate.
In this case, Pelosi is suggesting that she might have been defamed or shown in a false light by being set up while Kious could claim to have been defamed due to the allegation of a politically motivate set up. In liberal San Francisco, such an allegation is particularly deadly for a business. A hair cut is certainly not in the league of using crack with Marion Barry. Yet, in San Francisco it may be worse to be accused of enabling a Republican attack on Nancy Pelosi than enabling a crack session with her.
Kious is likely a public figure under 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). Her status as a salon owner alone would not trigger this status but her releasing the video and doing an interview on Fox would make her a public figure of limited public figure.
Pelosi is obviously a public figure. Indeed, arguably the third highest public official in the United States as third in line for the presidency.
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. 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.
California recognizes categories of per se defamation including alleging (1) a criminal offense; (2) a loathsome disease; (3) matter incompatible with his or her business, trade, profession, or office; or (4) serious sexual misconduct. See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008).
In the very least, Kious has been accused of a matter “incompatible with business, trade, profession, or office. Pelosi has also been accused for such misconduct. (I am going leave the suggestion of criminality in one-party taping as meritless since this is a business where security cameras are usually posted and obvious).
For Kious, “truth is a defense.” While Pelosi said she was set up, she was in violation of San Francisco’s law and did fail to wear a mask.
For Pelosi, it gets tougher. Her comments allegedly triggered threats and contributed or caused the likely closure of the salon. The hair stylist Jonathan DeNardohas insisted that the owner knew about the appointment. Kious said that she learned about it after it was set up.
Truth again can be defense but, unlike the Pelosi allegation of violating local laws on getting an indoor haircut and not wearing a mark (which is clearly true), this would be a matter for a jury. It is ultimately a question of motivation.
The fact is that it could be presented as a viable defamation claim but, because of her status as a public figure, it would be difficult under the higher standard. Complication this more is the heavy layer of political opinion during an election season. Thus, my view is that a defamation claim is viable but challenging.