California Court of Appeal: “Dumb Ass” is not a defamatory term

[Thanks to Denise at Bag and Baggage for alerting me to this entertaining and humorous case.]

It’s not too often that the courts get to pass judgment on the really important issues of our time. But in its March 24 decision in the case of Vogel v. Felice, the California Court of Appeal has determined that calling someone a “dumb ass” does not give rise to liability for defamation. “A statement that [a person] is a ‘Dumb Ass,’ even first among ‘Dumb Asses,’ communicates no factual proposition susceptible of proof or refutation.”

Of course there was a bit more at issue in this case. The plaintiffs were two candidates for public office who filed a libel suit against the defendant website operator. On his site, the defendant had listed the “Top Ten Dumb Asses,” and the plaintiffs occupied the top two slots on this list. The defendant accused one of the plaintiffs of being a “dead beat dad,” while accusing the other plaintiff of being “Bankrupt, Drunk & Chewin’ tobaccy.” Various links associated with plaintiffs led to certain unsavory websites.

The defendant filed a special motion to strike the complaint under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute (Cal. Civ. Proc. Sec. 425.16) which entitles such motion in any cause of action “arising from any act of [the defendant] in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue … unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” The trial court denied the motion to strike, but the Court of Appeal reversed.

The court broke the analysis down to three questions: (1) Did plaintiffs’ cause of action arise from conduct in furtherance of the defendant’s petition or speech rights? (2) Was defendant’s conduct connected with a public issue? and (3) Had the plaintiffs established a probability of success on their claims? The court easily determined that the first two questions were to be answered in the affirmative. Most of the analysis focused on the third question. The court determined that the plaintiffs had not established a probability of success on their claims.

In finding that plaintiffs had not established a probability of success, the court noted that the complaint was legally insufficient on its face, because plaintiffs had failed to plead that defendant acted with “actual malice.” Furthermore, the complaint and the record was factually insufficient to support a probability of success for various reasons.

First, as discussed above, the claim that being called a “dumb ass” was defamatory failed as a matter of law for the inability of such a statement to be proved or disproved. Secondly, because the plaintiffs were public figures, they had the burden of proving the challenged statements were false. The court found that plaintiffs had not provided enough detail to show the “substantial falsity” of the claims. Finally, the court held that linking to various sites in connection with the plaintiffs’ names was not defamatory in that the association created thereby did not convey a substantially false meaning.

Vogel v. Felice, 2005 WL 675837 (Cal. Ct. App., March 24, 2005).