Northern Indiana Public Service Co. v. Dabagia

ROBB, Judge,

concurring

I concur with the majority on all the issues, except that I write separately to address a single element of defamation, defamatory imputation, to determine whether a racial slur4 or epithet5 is the type of communication that has the tendency to harm reputation, and thus, is unprotected speech.

Initially, I recognize that the First Amendment to the United States Constitution, incorporated to the states via the Fourteenth Amendment, protects free speech, providing in pertinent part that *305“Congress shall make no law ... abridging the freedom of speech.... ” Moreover, Article I, Section 9 of the Indiana Constitution protects free speech, providing in pertinent part that “[n]o law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak....” However, the constitutional language contained in these clauses does not permit all types of language or forms of speech.

The Supreme Court of the United States has held that the First Amendment is not absolute, classifying certain types of communication as unprotected speech. The Court has determined that the Constitution of the United States does not protect speech that constitutes fighting words,6 is obscene,7 promotes child pornography,8 or is carelessly or maliciously libelous.9 The Court has stated that the First Amendment does not protect these categories of speech because they “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In short, the First Amendment does not protect every conceivable use of language, but only the “communication of ideas” in the broad sense of self-expression directed toward the intellectual/emotional faculties.

In the present case, we are only concerned with that category of unprotected speech known as defamation, which can be legislated by the states individually. Chaplinsky, 315 U.S. at 571-72, 62 S.Ct. 766. Defamation is a tort action. See Long v. Durnil, 697 N.E.2d 100, 105 (1998), trans. denied (observing that the United States Supreme Court has held that defamation is a tort actionable under the laws of most states but is not a constitutional deprivation); see also Mart v. Hess, 703 N.E.2d 190, 192 (Ind.Ct.App.1998) (“In a defamation action, the place of the tort is generally considered the place of publication, i.e., where the defamatory material is communicated to a third party”). The goal -of defamation law is to define a realm of socially unreasonable communication, and compensate individuals for the harm to reputation resulting from such communication. A defamatory statement is capable of harming an individual in all areas of his life, social, political, economic, psychological, even physical. Defamation is easily committed and is frequently ineradicable and sinister in effect.

To recover in an action for defamation, that which caused the alleged defamation must be both false and defamatory. Kitco, Inc. v. Corp. of Gen. Trade, 706 N.E.2d 581, 587 (Ind.Ct.App.1999). The plaintiff must establish the basic elements of defamation: (1) a communication with a defamatory imputation; (2) publication; and (3) damages. Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied. The determination of whether a communication is defamatory is a question of law for the court. Id.

A communication may be defamatory per se or per quod. Rambo, 587 N.E.2d at 145. In the case of slander, a communication is defamatory per se if it imputes: 1) criminal conduct; 2) a loathsome disease; 3) misconduct in a person’s trade, profession, office, or occupation; or 4) sexual misconduct. Id.; Restatement (Second) of Torts § 570 (1977). If a communication is defamatory per se, the plaintiff is entitled to presumed damages as the natural and probable consequences of the per se defamation. Elliott v. Roach, 409 N.E.2d 661, 683 (Ind.Ct.App.1980). The law presumes that the plaintiffs reputation has been *306damaged, and the judge may award a substantial sum for this presumed harm, even without proof of actual harm. Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671, 684, 321 N.E.2d 580, 589 (1974), cert. denied, 424 U.S. 913, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976). In short, defamation per se is a statement defamatory on its face, and does not require proof of special damages.

All other factual communications, even if they are defamatory in that they tend to harm a person’s reputation by lowering the person in the community’s estimation or deterring third persons from associating or dealing with the person, are generally considered defamation per quod. Rambo, 587 N.E.2d at 146. Defamation per quod is actionable only if it causes the plaintiff special damages. Jacobs v. City of Columbus, 454 N.E.2d 1253, 1264 (Ind.Ct.App.1983), trans denied. The Restatement (Second) of Torts provides that “[o]ne who publishes a slander that, although not actionable per se, is the legal cause of special harm to the person defamed, is subject to liability to him.” Restatement (Second) of Torts § 575 (1977). Essentially, special damages are pecuniary loss. See generally Rambo, 587 N.E.2d at 146. Because the phrase “camel jockey” and the word “Arab” do not fit within any of the categories of defamation per se, I agree with the majority that the plaintiff is only left with a defamation per quod cause of action.

The threshold inquiry in every defamation action is whether the statement, word, or phrase at issue is capable of a defamatory meaning. The Restatement (Second) of Torts provides that “[t]he meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” Restatement (Second) of Torts § 563 (1977). Typically, the trial court utilizes a two-step process to determine whether a communication has a defamatory meaning. First, the court interprets the communication uttered or written by the defendant to determine its meaning. This “linguistic analysis” of the defendant’s statement largely involves an examination of the communication itself and the context and circumstances surrounding the speech. Second, the court must determine whether the communication is of the type that harms an individual’s reputation, and thus, is defamatory. Under this step, the court must look to societal and cultural attitudes, beliefs, and prejudices to determine whether the communication is unprotected speech because it has a tendency to harm an individual’s reputation.

We have defined defamation as communication or speech which tends to injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff. Kitco, 706 N.E.2d at 587. The Restatement (Second) of Torts defines a defamatory statement as one that “harm[s] the reputation of another so as to lower him in the estimation of the community or ... deter[s] third persons from associating or dealing with him.” Restatement (Second) of Torts § 559 (1977). To qualify as a defamatory communication, the communication need not “ ... prejudice the person in the eyes of everyone in the community or of all one’s associates, nor even in the eyes of a majority of them. It is enough that the communication would tend to prejudice one in the eyes of a substantial and respectable majority of that group....” Restatement (Second) of Torts § 559 cmt. e (1977). The gravamen of a defamation action is harm to the plaintiffs reputation in the eyes of others. Rambo, 587 N.E.2d at 146. Thus, in simplest terms, a defamatory statement is one that harms an individual’s reputation in the eyes of the community.

Speech is the primary means by which human beings communicate ideas and beliefs. Therefore, it is clearly evident that speech may influence an individual’s ideas, beliefs, and attitudes. Speech also is one of the easiest methods an individual can utilize to injure a person’s reputation and *307good name, requiring no more than a few spoken words by the defamer to others. Furthermore, speech is the primary means by which individuals identify others. For example, if I tell others that Jill is a Protestant, I am identifying her with a religion. But racial slurs and epithets provide no means of identifying others; the verbal insults only provide a means of stereotyping and dehumanizing victims of the verbal insults. Racial slurs are ad hominem to an individual, and have no place in a civilized society.

Some categorize racial slurs as political speech, and thus protected. However, I wholeheartedly oppose such categorization. I cannot envision anything about racial defamation that would justify its participation in the “marketplace of ideas.” Racial slurs and epithets accomplish nothing except to dehumanize others solely upon the basis of their race. Moreover, racial insults stigmatize victims by race and perpetuate racial prejudice in society. The phrase “camel jockey” is clearly a racial slur, and has no other purpose than to demean and lower a person before others. I believe that phrase in and of itself has a defamatory meaning, and thus, constitutes defamation per quod if the plaintiff can prove special damages.

This is especially true when one examines racial slurs as they relate to the primary defense to defamation, truth. We have held that true statements never give rise to liability for defamation. Conwell v. Beatty, 667 N.E.2d 768, 774 (Ind.Ct.App.1996). The truth defense to defamation is derived from Article I, Section 10 of the Indiana Constitution which provides that “[i]n all prosecutions for libel, the truth of the matters alleged to be libelous, may be given in justification.” It is generally recognized that a defendant who asserts the defense of truth in a slander action is not required to justify every word of the alleged defamatory matter; it is sufficient if the substance of the matter is true. See Restatement (Second) of Torts § 581 cmt. b (1977). If, for example, I called John Smith a murderer, the trial court must examine the evidence to determine whether or not the statement is true. If the evidence shows John is in fact a murderer, then John’s defamation action is defeated. However, truth has no relevance when examining a racial slur because the substance of a racial slur is never true.10 Thus, the racial slur “camel jockey” is defamatory in and of itself, and thus, constitutes defamation per quod if the plaintiff can prove special damages. This comports with Article I, Section 12 of the Indiana Constitution which provides in pertinent part that “[a]ll courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law....”

However, the word “Arab” is more troubling. Standing alone, the word “Arab” generally refers to a person whose ethnic origin is from the Middle East or North African regions of the world.11 However, I believe that the word “Arab” can also have a defamatory meaning, and thus, be actionable as defamation per quod if special damages are proven by the plaintiff. This court has held that some communications are susceptible to either a defamatory or a non-defamatory interpretation. Rambo, 587 N.E.2d at 140. Words not actionable in themselves may be actionable by their allusion to some extrinsic fact, or by being used and understood in a different sense from their natural meaning. McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, *30865 (Ind.App.1999). Moreover, we have held that the determination of whether a communication is defamatory is to be presented to the jury as a question of fact only if the communication is reasonably susceptible to either a defamatory or a non-defamatory interpretation. Chestnet v. K-Mart Corp., 529 N.E.2d 131, 135 (Ind.Ct.App.1988), trans. dismissed.

Furthermore, I believe that defamation is a “recipient-based tort” in that it focuses on the views and opinions of others and their response to the defamatory statement. Because the climate of opinion changes according to the time and place of publication, the circumstances surrounding the communication are important in determining whether the speech is defamatory. For example, if I referred to another as a “Tory” and published the statement to a third party in the Thirteen Colonies during the American Revolution, it would surely be defamation if false. However, if I made the same false statement about someone and published it to a third person in America in the present day, it clearly would not injure the person’s reputation in the community, and thus, would not constitute defamation. Therefore, I believe that it is a question of fact whether the NIPSCO Supervisor’s reference to Dabagia as an “Arab” had a defamatory meaning, and thus, it was within the province of the jury looking to the context and surrounding circumstances to determine the meaning of the word when spoken.

Finally, I believe that the relationship between the defamer and the victim of the racial defamation is relevant in determining whether communication has a defamatory meaning. The defamer, the NIPSCO supervisor, retained a superior position over the victim of the racial defamation, Dabagia, because she was Dabagia’s boss. The defamer’s status as a NIPSCO supervisor effectively rendered his disparaging remarks about Dabagia more injurious to Dabagia’s reputation in the community than if the defamer was a subordinate employee of the company. Dabagia could not respond to the defamer’s verbal insults for fear of losing his job or being disciplined.

Although I believe that the phrase “camel jockey” has a defamatory meaning, and that the word “Arab” is susceptible to two different meanings, I agree with the holding of the majority because Dabagia has not proven special damages. Dabagia has not proven that he has suffered pecuniary loss as a result of the defamatory communication, and thus, this court may not allow recovery under defamation per quod. He has failed to prove that the communication was the proximate cause of his lost wages and medical bills. Because Dabagia has failed to prove special damages, no action for defamation per quod may lie.

. A slur is defined as a “[disparaging remark; an aspersion; stigma.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1218 (1981).

. An epithet is defined as ”[a]n abusive or contemptuous word or phrase used to describe a person.” Id. at 441.

. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

. Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952).

. I disagree with the cases cited in Rambo that racial slurs and epithets cannot constitute defamatory per quod, because I believe that the true/false distinction has no applicability to verbal insults, unlike other defamatory communication.

. Arab is defined as “ ... [a]ny of a Semitic people originally from Arabia, but later widely scattered throughout the Near East, North Africa, and the Arabian Peninsula. Loosely, any of a nomadic people living in North African and Near Eastern desert regions.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 66 (1981).