Below is my column in Fox.com on the controversy caused by ABC host Whoopi Goldberg in attacking a local bakery. This could make for an interesting defamation case.
Here is an expanded and updated version of the column:
The hosts of The View have long fueled panic politics to support a Democratic hold on power in Washington. That includes dystopian predictions of an American Third Reich if Donald Trump were elected. Much of this hysteria has been fostered by host Whoopi Goldberg, who told ABC viewers how Trump is already committed to being a dictator who will “put you people away … take all the journalists … take all the gay folks … move you all around and disappear you.”
Such fearmongering is the lowest form of political discourse, but neither Goldberg nor ABC is legally liable for dispensing with any journalistic or ethical standards. That may not be the case with regard to Goldberg’s most recent rant targeting a local New York bakery. Some have said that the fact that Goldberg did not name Holtermann’s Bakery means she cannot be sued. That is wrong.
On the program last week, Goldberg portrayed herself as an early victim of the backlash against Trump critics when she was denied an order of Charlotte Russe cakes.
Goldberg stated ominously, “Now, I should tell you, Charlotte Russe has no political leanings, and the place that made these refused to make them for me.” With that line, one of the co-hosts, Sara Haines, spit out the cake in her mouth on the table as the other hosts expressed horror.
Goldberg continued
“”Charlotte Russe has no political leanings, and the place that made these refused to make them for me…They said that their ovens had gone down, but folks went and got them anyway, which is why I’m not telling you who made them. It’s not because I’m a woman, but perhaps they did not like my politics. But that’s OK because you know what? Listen, this is my mother’s celebration. Pick these up and celebrate with me and my mom. Thank you, everyone, for celebrating my birthday today.”
Her co-hosts and the audience were clearly appalled that Goldberg would be the victim of political retaliation. It was all the more horrifying and contemptible that she was trying to obtain the cakes to celebrate her 69th birthday on-air. It was a scene right out of Apocalypse Now.
While she pointedly said that she would not name the bakery, it took little time for people to deduce that it was Holtermann’s Bakery on Staten Island given its signature Charlotte Russe cakes, a local legend in New York.
Over the weekend, Goldberg repeated the allegation, posting a video clip in which she stated:
“It does seem a little odd that when we called a few weeks before my birthday and we were told they couldn’t process the order because of an equipment failure,” she said, apparently still doubting the 145-year-old bakery’s explanation.
“But somehow they were able to accept an order of a different 48 of the same dessert when somebody else called without using my name.”
The fact is that the ovens did go down. The establishment’s 60-year-old boiler could not make it to its own’s 67th birthday. After all, it was installed when Goldberg was only seven years old.
The bakery stopped taking orders until it could get a working boiler. The alternative was to leave people like Goldberg without cakes for their special events. The bakery can reportedly show that Goldberg accusation was demonstrably untrue.
Borough president Vito Fossella (R) immediately accused Goldberg of defamation: “Recently someone took to the national airwaves and defamed, frankly, this family business. We’re here to stand up for one of the best families and businesses, not just in Staten Island but in the country.”
There are two reasons cited for why Goldberg cannot be sued. Her refusal to name the bakery (which she portrayed as a way of denying them favorable publicity since they eventually got the cakes) and that she used the word “perhaps” in her accusation.
The Name Game
The failure to name a party in an otherwise defamatory context is not an absolute defense to defamation. It can clearly undermine a case challenged in a dismissal motion under Rule 12(b)(6) or other rules. The defendant can claim that the statement was not sufficiently clear as being ‘of and concerning’ the plaintiff.”
The statement must be sufficiently detailed to identify the plaintiffs. This can be established by the context or extrinsic evidence. For example, in the famous case of Depp v. Heard lawsuit, Amber Heard wrote an op-ed that did not mention Johnny Depp by name but it was still found to be defamatory. The article could clearly be shown to be referring to Depp.
New York has recognized that a “not named” plaintiff can still bring a viable action. See DeBlasio v. North Shore University Hospital, 213 A.D.2d 584, 584, 624 N.Y.S.2d 263, 264 (2d Dep’t 1995) (“[W]here the person defamed is not named in a defamatory publication, it is necessary, if it is to be held actionable as to him, that the language used be such that persons reading it will, in the light of the surrounding circumstances, be able to understand that it refers to the person complaining.”). Again, it adds a challenge in the motion to dismiss, but it is possible to maintain such an action.
The strongest and easiest cases to make on defamation are those fitting into a per se category of defamation like calling someone falsely a criminal or the carrier of an infectious disease. Damages in such cases are often presumed.
Other cases are called per quod cases where the harm and damages are not immediately evident or presumed. Rather than be libelous on their face, per quod cases must often be proven through use of extrinsic facts or evidence. In such cases, you need to prove special damages.
It is worth noting that the implied accusation against the bakery could fit into a per se category of impugning business or professional integrity. Goldberg’s statement was clearly meant to undermine the reputation and professional standing of the bakery. It can be argued as defamatory per se by implication.
Goldberg could argue that the bakery was not harmed because conservatives and supporters flooded the establishment with orders. However, for many other customers in New York the accusation of Goldberg and the memory of Haines spitting out the cake on the table as vile will not be easy to erase. The bakery can argue that it has likely lost that segment of its customer base.
The fact that Goldberg identified the bakery only as a local bakery associated with these cakes is not a defense. The identity of the bakery was quickly deduced and published widely.
“Perhaps” Defamation
Goldberg could also claim that using the word “perhaps” reduced the statement to a mere opinion. This is a common misunderstanding. Often people will say “in my opinion” and then follow with a defamatory statement. It is not treated as an opinion if it is stated as a fact.
Clearly, a statement of opinion alone is not actionable when “the facts on which they are based are fully and accurately set forth and it is clear . . . that the accusation is merely a personal surmise built upon those facts.” Gross v. New York Times Co., 623 N.E.2d 1163, 1169 (N.Y. 1993).
New York courts look to whether a reasonable person would consider the statement to be conveying a fact. Davis v. Boeheim, 22 N.E.3d 999, 1005 (N.Y. 2014) Moreover, “[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made,” including the forum, to determine how a reasonable reader would view them.” Brian v. Richardson, 660 N.E.2d 1126, 1130 (N.Y. 1995).
Moreover, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it… is a mixed opinion” and is actionable. Bacon v Nygard, 189 A.D.3d 530, 530 (1st Dept. 2020).
Goldberg was clearly trying to convey that the bakery imposes a political litmus test or engages in political discriminatory practices against Democrats, Trump critics, or liberals. That can have an obviously harmful impact on business for the family-owned bakery.
Goldberg can argue that she was stating a fact that the order would not be filled and merely offered an opinion as to the reason. However, the bakery can argue that the accusation was presented as a shocking fact (as demonstrated by the reaction of Haines in spitting out her cake). While Goldberg said that she did not believe that this was gender discrimination, the same would be true if she offered an “opinion” that the bakery was engaging in gender or racial or religious discrimination.
The question is whether a case could be made under these facts that could get to a jury. As discussed in the aforementioned cases, New York courts have allowed cases to go forward when an opinion is challenged as an implied false fact. Even if the bakery had to show malice (of a knowing falsehood or reckless disregard of the truth), it would have a cognizable basis for such a claim against Goldberg and ABC. A court could easily decide that whether this was stated as a true opinion or a fact should be left to a jury.
It is not clear if the bakery has sent a “cease and desist” letter to ABC. It would not be the first time that they had to make such a correction and the audience of the The View does not appear to care about such false or unsupported claims.
In one such incident, Turning Point USA issued a cease and desist letter to ABC after the hosts suggested that it allowed neo-Nazis to join an event. In discussing Turning Point USA’s summit in Florida, host Joy Behar said “Neo-Nazis were out there in the front of the conference with antisemitic slurs and … the Nazi swastika and a picture of a so-called Jewish person with exaggerated features, just like Goebbels did during the Third Reich. It’s the same thing, right out of the same playbook.”
Whoopi Goldberg, then added, in reference to Turning Point USA, “you let them in and you knew what they were, so you are complicit.”
ABC then had the hosts issue an on-air apology. However, they had host Sara Haines do it: “We want to make clear that these demonstrators were outside the event and that they were not invited or endorsed by Turning Point USA.” She added “the hosts apologize for “anything we said that may have been unclear on these points.”
Obviously, it would be up to a jury to balance the earlier standards and the evidence in this case. As noted above, Goldberg clearly has defenses to make. However, my point is only that a case could be made for defamation and a court could find that the matter should be left to the fact finder at trial. The failure to name the bakery and the opinion defense are not necessarily determinative.
Goldberg and ABC would be wise to apologize on the air to the bakery on Monday.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, 2024).
I believe in free speech, including defamation, lies, and “foul” language. If people choose to believe anything that Whoopi Goldberg says, it is their right to be that foolish and claiming the right to sue Goldberg for saying something false is claiming the right to determine truth and become a censor. It is wrong to punish a liar for the error a listener makes in deciding to believe the liar.
Note also the complexity of the reasoning that Mr. Turley must go through to find a path to punish Goldberg. He concludes that the lie does not need to be precisely a lie, but can be called a lie because the overall effect in a “reasonable” person’s mind would be that of a lie. But what of the effect in Goldberg’s silly mind? Perhaps she actually believed what she said based on what she has read – perhaps in an article by some lawyer? Goldberg began her career as a clown and has never departed from that role. Any truly “reasonable” person knows better than to take anything Goldberg – or any lawyer – says at face value. Truth is not “received”, it is discovered. If some of the Bakery’s customers choose to act on Goldberg’s remarks and stop buying there, that is their right and it is not a harm to the Bakery. To be harmed requires that a property right has been violated and customers are not property. Pretending that libel and defamation are harms is reminiscent of the error of Intellectual property law which pretends that imitation is a harm. Customers are not property.
Attempts to defend free speech while punishing free speech using libel and defamation laws amount to a massive epistemological contradiction requiring evasions about both property rights and unknowable psychological motives. No one has a right to demand the truth from anyone about anything. Believing otherwise is the very basis of censorship. Lies do not violate rights. Since mind-reading is impossible, there is no way to know the difference between a lie and a sincere belief. And knowing the difference between a truth and falsehood is called “having an opinion”. See “The Nature of Evil: Centuries of Parasitic Philosophy” on Amazon.
It is wrong to punish a liar for the error a listener makes in deciding to believe the liar.
If somebody despised you sufficiently to spend the money to write an ‘Anonymous-Harvey Weinstein Dossier’, written to persuade people in your city that there was hidden law enforcement evidence that you partied with Weinstein, screwing little pre-teen boys and girls, and that destroyed your reputation and your livelihood, would it be wrong to punish that deliberate act?
Would you say “I thought truly reasonable people would know better than that”, as you claim here while justifying Goldberg’s targeting of that bakery as just low grade free speech?
To be harmed requires that a property right has been violated and customers are not property.
That’s pretty sophomoric stuff right there. Only tangible physical things can be harmed? Reputation isn’t a factor in business success?
So you’re self-identifying as a lawyer who knows the law on this issue better than Professor Turley. He’s wrong and you’re right?
Fantastic! Where do we go to read your own legal blog? And the name of your law firm is????
Anonymous, Anonymous and Anonymous, LLC?
‘Reasonable’ people do not constitute the cult of thousands of psychofanatic supplicants who have raised Goldberg and the rest of her coven to deem themselves’all that’. Their following was roundly trounced November 5th.
There’s nothing “complex” about the Professor’s reasoning. It was simple defamation law analysis, and in this case, libel, and more particularly libel per se and libel per quod. Everything the Professor wrote can be found any Tort text book, as he cited in his article. Any first year law student would recognize it immediately.
If you disagree, cite some case law, as opposed to weird pseudo analysis, using words that mean nothing.
“If you disagree, cite some case law, as opposed to weird pseudo analysis, using words that mean nothing.”
Ah, I see. Professor Turley’s columns and this site are only for practicing attorneys. Thank you for the enlightenment; if the rest of us apply it, his universe of readers should be considerably streamlined.
The View is just an entertainment center as was the Coliseum in Rome all those years ago! Sadly, ABC allows these gals to get away with it and this I put in the ‘bullying’ category. Congrats ABC — you have proven that the execs are more interested in money than honesty, fairness or intellectual growth. These are base-lined women whose opinions are of little value to most. Sadly, the viewers are easily pleased and one would only hope that they watch because they like to look at the ‘ridiculous’ and not actually believe these people — all of whom get very big paychecks! To the bakery — Whoppi probably increased their business because a good cake is very hard to find! Move on and spend your money expanding your business!
* the bakery might create a new cake– the whoopee liar cake…oh, the whoopee pie.
The people who believe anything Whoopi says are even dumber than Whoopi herself.
Was Whoopi outraged when a restaurant kicked out Sarah Huckabee Sanders and her family? Hmm.
* Whatever happened to– I don’t like you but I have to serve you?
Happens all the time
No, it doesn’t, because you DON’T have to serve someone you don’t like. Where do people get the idea that you do?
Obviously, Goldberg suffers from a mental disorder whereby anytime she does not get whatever it is that she wants at the precise second that she wants it, someone must be persecuting her. LOL! They should make a sitcom out of this!
* entitled…how dare that boiler went down when I, the great Whoopi wanted cake! Off with their heads.
Publicity at another’s expense is immoral.
The extreme left has made an industry and lots of money churring out victimhood propaganda. Caryn Johnson, stage name Whoopi Goldberg, who is a highly paid and extremely wealthy performer on the attack dog, pseudo information and hate based propaganda program on ABC should be taught the difference between free speech and defamation via false statements of private citizens just trying to make a living.
Both ABC and the “stars” of this program should be sued because they all participated in defaming this business and the owners though false statements and actions.
Whoopi, actress/ celebrity/ politico… what I see is cultural phenomena – like the kings of old, political elitists/ American aristocracy have chosen to surround themselves with the beautiful and talented as means, among other things, of enhancing image in projecting wealth, power and prestige… Bear in mind, in terms of true doctrinaire leftists, that “conservative” is the natural state of all mankind, for who would not recommend a path of prudence, Dear Prudence? Even New York, reputed to be one on the most liberal states in the nation, has proven itself unable to garnish sufficient support to sustain a liberal party, there is no liberal party in New York, but there is a so-called “conservative party.” No, what I see, what some majority also very likely see, is not so much liberal as it is double-speak and hypocrisy. Hollywood’s support of Roman Polansky, of Charles Weinstein, or it’s “threats” to remove to Canada or Western Europe if Americans are successful in demands to close the Southern border, rather than, of course, move to Mexico or South America. No, I don’t see doctrinaire leftists or “liberals,” what I see instead are unscrupulous individuals determined to leverage politics for the sole purpose of gigs, grants, and favorable tax and legal treatment. Witness, for example, the rise of Clintonesque-type Hollywood “foundations,” do you really believe they’re truly scrutinized by our weaponized IRS? Or do they simply look away to tune of hundreds of millions? Which is to say, in my opinion, it’s all about money…
Whoopee is highly offensive to many. She intends to be offensive. She does actually hate some people and demands to say it. There’s all kinds of them. Chappelle, Rock, etc.
The bakery should address the false slur. It was intentional.
Oberlin College 2.0? How deep are her pockets?
Whig98,
That is an interesting point. Leftist Democrats attempt to tear down small businesses. Locals and the MAGA movement support small businesses and help them build up against leftist Democrat attacks.
* approx 50 million…
Nope. Unlike Oberlin about Gibson’s, Goldberg did not make any false factual statements about this bakery. Just some opinion and speculation. Had Raimondo stuck to calling Gibson’s racist there would have been no case.
The upside,
NYC pols demand Whoopi Goldberg apologize for false Staten Island bakery slam — as store is flooded with orders
“The owner said she’s had people calling up from as far as Alabama and Tennessee so they can donate orders of baked goods to nearby schools and first responders in a bid to drum up business.”
https://nypost.com/2024/11/15/us-news/nyc-pols-demand-whoopi-goldberg-apologize-for-false-staten-island-bakery-slam-as-store-is-flooded-with-orders/
Apology? From anyone on that show?
“Words without thoughts never to heaven go”
Whoopie and the entire cast of The Sows, supported the homosexuals that sued Jack Phillips in Colorado for not baking them a cake!
no one more hate filled than a democrat
Until these clowns on the left, start paying a serious price for their behavior, it’s not going to end. Every opportunity we get, we should sue them, and date them, make them pay. Once they hurt enough , maybe they’ll learn the lesson.
Exactly!
The bakery should sue Goldberg and ABC. The only way these radical Left Wing Radical/DEMS and news organizations learn and fear is a major lawsuit and they have to pay $$$$$$$. Left Wing Liberals love threatening others and lawfare but when you go after them and take their $$$$$ they scream, they hatr paying out $$$$$$$ or be held accountable.
Sue for what? There was no false statement of fact, just opinion and speculation.
“perhaps”
Did her fearmongering co-hosts only “perhaps” spit out the cake and and only “perhaps” express horror in sympathy?
If the bakery feels they have a case and have a good lawyer or law firm who feel they can make the case in court, I wish them luck.
It would be business madness to sue ABC and their clearly biased hosts. Yes, Staten Island is the only arguably conservative Bourough of NYC but if I was advising the bakery it would be to send the ladies on the View free Charlotte Roussel cakes for a year and ask that they eat them on the air.
I hate frivolous lawsuits as much as the next person but these toxic leftist haters need to start paying for their BS. For years they have gotten away with murder gaslighting people, doxxing them, etc. After November 5 you would think they would have gotten the message- that people are fed up with this nonsense- but I am still appalled at the intelligent, well educated women (some men, but mostly woman, of which I am one) that do nothing more than just spit out the toxic, unfounded rhetoric. My sister is a 72 year old therapist with a masters degree, that does nothing but spew the same mantra as the leftist next to her. It is like they received some talking points in an email that they were required to memorize and repeat. I find it jaw dropping- hey, it is not my fault that you chose probably the worst 2 candidates (Harris and Walz) to go up against Trump. With the baggage that Trump had going in to this election, a Democrat candidate should have handily won, but thank God she didn’t. We sure dodged that bullet- thank you Lord!
A remarkable talent of denizens of the left is their ability to share and accept among themselves slanders and defamations of the worst sort and to repeat them, and themselves, over long periods of time, in a knowing manner, as if they were true. The View, with its one point of view, is like the worst sort of gossip club (perhaps centered at a beauty parlor) that passes on hateful comments, often lies, about others that spread wildly. In this case, the bakery, rather than sueing, ought to advertise “As slandered by The View”.
Lawyers advise and clients decide. Part of what brought Johnathan to apply the law of defamation started with ABC’s decision to go on air with the no cupcake rant. Most corporate law departments take defamation liability as seriously as a heart attack. Behind the cloak of attorney client privilege, what level of law department advises with what rank of corporate decision maker on the day’s upcoming on air content? Liability is the opposite of plumbing. Liability flows uphill.
The fact that you can see how foolish others are is the proof that libel and defamation laws are unnecessary. The false premise is, “Since I am so smart, I can see that Goldberg is wrong and that her fans are foolish, I have the right to punish Goldberg to protect her fans”. No you don’t. That premise opens the door to all those thinking they are smarter than you and therefore have the right to shut you up.
If she, abc and that vulgar individual who spit out a perfectly good confection on air can be sued, they should be sued. This program started by Barbra Walters has morphed from entertainment to angry rants. Time to Bud Light it.
Meh. I expect the show and its celebrities to become increasingly irrelevant, and viewership to drastically decline, over the next few years. A lawsuit could easily provide publicity that would counter that. My preference is to just alllow the st’unt Goldberg, Joy B Whore, and the rest of the idiot View Crew, to fade into well-deserved oblivion as quickly as possible.
* It won’t fade away. There’s always a market for the carnival freak shows with the bearded lady and man with 3 arms kind of thing. Look at Jerry springer and success in those programs.
Yes, the bakery now has a stain, a smudge of not quite clean on it now. Yes, a lawsuit is needed. A bakery must have a clean reputation.
People who are inclined to believe utter bu11 $hit, are going to find utter bu11 $hit to believe. An annoying preponderance of people are buffoons who exhibit an unseemly combination of stupidity and profound intellectual laziness, such that they prefer being passively bamboozled to needing to exert effort to be accurately informed. According to some comments here, Staten Island is a relatively conservative, Republican-leaning area of NY. Is it not possible that more people from Staten Island will want to buy from the bakery, rather than fewer, as a result of this calumny from such a biased source? According to other comments, in a reaction to the unfairness of Goldberg’s comments, the bakery is swimming in orders from other parts of the country. So, it would appear that the net effect on the bakery’s business could well be positive, not negative. Wouldn’t that make it rather difficult to enumerate harm in court? What I sense from your comment, and those from some other posters that I have read here, is that you want the bakery to sue, and the court to award damages, not out of any concern for the financial well-being of the bakery, but to vicariously exact revenge upon someone you detest, for saying something that you do not like. I suggest you re-examine your motives. That kind of unbecoming projection appears to be a hallmark of leftists, and I would hope that the rest of us can avoid that kind of contagion.
Without a just legal system, applied by honest legal experts, our country would fall completely into any concocted Hell hole created by self serving incompetent cement heads on a personal mission. I hope bakery has already contacted legal advice. And, I feel that just “retracting” their false statements isn’t enough because the damage was done which can continue to grow like a virus. Until people and corporations are made to PAY DEARLY can these individuals and corporations be made to understand to be more careful when they unceremoniously open their pie hole and spew.
NY’s Letitia and Bragg have demonstrated, for all to see, how our justice system can be perverted to attack and punish, illicitly, political enemies. Their cases need to be subjected to courts of appeal, where they will be overturned in heartbeats.
A legal system that punishes false opinions is not “just”. Opening your “pie hole” is what the first amendment protects. It protects making false statements because either no one has a right to put themselves in charge of truth or everyone does.
“A legal system that punishes false opinions is not “just”.”
It takes a special level of stupid to claim on a legal blog that vicious lies with the intent to harm the targeted person or business has been wrongly punished by 200+ years of defamation law.
Opinions can’t be true or false, just right or wrong. And they’re not actionable. Only false statements of fact are actionable.
It would not be defamation to state that Poopie and her vapid disciples on The Pew are racists… just saying🤔
It’s not defamation to say that anyone is a “racist” “Racist” is an opinion, not a statement of fact, and it is not actionable.