The parents of Holden Armenta have retained counsel and sent a retraction letter to Deadspin in moves that usually precede the filing of defamation actions. Armenta was the target of a vicious and false attack by Deadspin’s Carron J. Phillips.  The writer has long been controversial, but Deadspin retained him. It could now come at a high cost, but the defamation action will face challenges.

Phillips posted a side image of Holden at a game of the Kansas City Chiefs against the Las Vegas Raiders, showing his face painted black. The 9-year-old was wearing a headdress while doing the signature “Tomahawk Chop.”

Phillips went into full attack mode.

The senior Deadspin writer had a Pavlovian response in a scathing article on the boy’s “racist” and “disrespectful” appearance.

“It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate black people and the native americans at the same time…Despite their age, who taught that person that what they were wearing was appropriate?”

Phillips also denounced the NFL for “relentlessly participating in prejudice.” In a now-deleted tweet, Phillips later called people “idiots” for “treating this as some harmless act.”

Of course, the full picture showed that Armenta had the other half of his face painted in red paint — the Chiefs colors.  It also turns out that he is Native American. Indeed, his grandfather is serving on the Santa Ynez Band of Chumash Indians.

The letter was sent by the new lawyer for Holden and his parents Shannon and Raul Armenta. Clare Locke LLP  warned Deadspin that “[t]hese Articles, posts on X, and photos about Holden and his parents must be retracted immediately.”

These retraction letters are often the open salvo in defamation actions. The letter notifies Carron J. Phillips, Deadspin, G/O Media, and Great Hill Partners.

There are 33 states with retraction statutes. Other states effectively make such a letter a required step. States differ on the impact of retractions, which must be made within a set period of days or weeks. If a full and effective retraction is issued (and published as prominently as the offending statement), it can limit damages or bar punitive damages entirely in some states.

Missouri does not appear to have a formal retraction law, but it is still considered a necessary step. It shows an affirmative decision to stand by the story. The Deadspin article remains on the website, but was updated to include a statement from Santa Ynez Band of Chumash Indians denouncing the use of such headdresses in costumes.

Phillips’ attack on the child and his parents stated that they were racists and hateful. He can claim that this was merely an opinion. The use of the headdress could be treated by a court as opinion since many denounce such images as cultural appropriation. What constitutes racist imagery is a matter of public debate and Phillips can argue that this is obviously just his opinion.

In Wilkow v. Forbes, Inc., 241 F.3d 552 (7th Cir. 2001), opinion prevailed as a defense. In that case, a journalist with Forbes was sued for harsh characterizations of a lawyer and his practice. Judge Frank Easterbrook wrote that “although the article drips with disapproval of Wilkow’s (and the judges’) conduct, an author’s opinion about business ethics isn’t defamatory under Illinois law.” Notably, that article was not on an opinion page, but the court found that the expression of the journalists opinion was obvious from the tenor of the column.

In the defamation action, Armenta could claim that he falls under the lower standard for defamation actions.

In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.

The standard was later extended to public figures.  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).

This child was clearly not a public figure before Phillips shoved him into public notoriety. Since the incident, the family has engaged the media and would not constitute at least limited public figures.

They could also sue for false light given the use of an image of only half of the child’s face. While some states have rejected false light claims in favor of using defamation actions exclusively, many recognize both claims.

Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.

For example, in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.

In 1967, the Supreme Court handed down Time, Inc. v. Hill, which held that a family suing Life Magazine for false light must shoulder the burden of the actual malice standard under New York Times v. Sullivan. Justice William Brennan wrote that the majority opinion held that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.”

This case screams of reckless disregard. All Phillips had to do is literally look at the boy’s full face. Yet, Phillips may claim that it would not matter. He still believed that the headdress and appearance remain racist and disrespectful. A court could easily view that question as a matter for the jury to determine.

Deadpsin obviously values Phillips’ take on race as do journalists. Despite his past controversial writings, he was selected as the 2019 & 2020 National Association of Black Journalists Award Winner.