Lesson of "Communist" Libel Cases in Vietnamese Community: Know Your Audience

In the United States after the Cold War, saying that someone is a Communist may not have the same sting that it did during the the decades of tension between the U.S. and the Soviet Union, and their respective allies.

But within the past three years, courts in California, Minnesota and Washington have held that calling someone a Communist can be the basis of a valid libel claim when the audience is the Vietnamese-American community, which consists mostly of refugees who fled the Communist regime in their native land after the Vietnam War.

In 2007, the Minnesota Court of Appeals partially affirmed a defamation award to a Vietnamese-American businessman and his company, holding that "appellants' statements [in letters] that respondent Pham is a 'Communist lackey controlled by the Vietnamese Communists' are not political speech protected by the First Amendment.” Pham v. Le, Nos. A06-1127 and A06-1189, 2007 WL 2363853 (Minn. App. Aug. 21, 2007) (unpublished), cert. denied sub. nom., Van Tran v. Pham, 552 U.S. 1320 (U.S. April 14, 2008).

In February 2009, a California appeals court affirmed denial of a motion under the state's anti-SLAPP statute to strike libel and tortious interference claims brought by a Vietnamese- American public school administrator against a community activist who called her a Communist. In making the decision, the court accepted plaintiff’s evidence that calling someone a communist in the Vietnamese community was “extremely harmful to [her] reputation.” Nguyen-Lam v. Cao, 90 Cal.Rptr.3d 205 (Cal. App., 4th Dist. Feb. 26, 2009), reh'g denied (Mar. 5, 2009), rev. denied (Cal. May 13, 2009).

And, most recently, in mid-April a Washington Superior Court jury awarded $310,000 to a civic leader in the Vietnamese-American community of Olympia, Wash. over statements in a Vietnamese language newspaper and websites that said he and his organization were Communist sympathizers. Tan v. Le, No. 04-2-00424-9 (Wash. Super. jury verdict April 16, 2009). [UPDATE: A Washington appeals court reversed this verdict, but the Washington state Supreme Court reinstated it.]

The labeling of someone as a Communist has apparently been an ephitet in the Vietnamese-American community since the fall of Saigon in 1975. But other communities within American society have their own mores and values, which can make a statement that might be benign in one context a defamatory statement in another. "If the [statement] obviously would hurt the plaintiff in the estimation of an important and respectable part of the community, liability is not a question of a majority vote." Peck v. Tribune Co., 214 U.S. 185, 190 (1909).

Note that this differs from "group libel," which is disparaging an entire group or class of people, rather than an individual within a particular group. See Beauharnais v. Illinois, 343 U.S. 250 (1952) (upholding group libel statute which was later repealed); see also AIDA v. Time Warner Entertainment Co., 772 N.E.2d 953 (Ill. App. 2002), appeal denied, 787 N.E.2d 154 (Ill. 2002) (affirming dismissal of suit alleging that "The Sopranos" disparaged Italians as a group).

Some examples:

  • A court found insufficient evidence that calling a lawyer "[Frank] Sinatra's mouthpiece" in a photo caption was defamatory to an audience of business magazine readers (Rudin v. Dow Jones & Co., 557 F. Supp. 535, 9 Media L. Rep. 1305 (S.D.N.Y 1983));
  • A court declined to rule on whether a statement in German directed at a German audience was defamatory, since English translation may not reflect nuance of language as understood by that audience (Kirch v. Liberty Media Group, 449 F.3d 388 (2d Cir. 2006));
  • Appeals court reversed dismissal of libel claim by scholar on Palestine over an article falsely published in her name that made her appear ignorant in her area of expertise, and "holds her up to ridicule and derision in the eyes of all those in any way acquainted with the land, its people and its past." Ben Oliel v. Press Publishing Co., 251 N.Y. 250, 167 N.E. 432 (1929).

But there are limits to this principle: a statement that may harm someone's reputation in a particular community may not win a libel case if the statement was addressed at the larger public as a whole, rather than the specific community in which the statement is harmful. So an inmate who was labeled an "FBI informant" in a news story aimed at the general public cannot recover for the harm to his reputation amongst his fellow inmates. (Saunders v. WHYY-TV, 382 A.2d 257, 3 Media L. Rep. 1959 (Del. Super. 1978)).

In short, an allegedly libelous statement "must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it." (Lucas v. Cranshaw, 659 S.E.2d 612, 615 (Ga. App. 2008)).

The bottom line for creators of content, both online and off? Know your audience and its sensitivities. Keep in mind that your audience could be far broader than you expect. Be aware that if you say something false about someone that will hit a particular nerve in their particular community, you might face a libel lawsuit.


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Appeals Court Reverses Washington Award

A state appeals court has reversed the $310,000 that a Washington state jury awarded to a civic leader in the Vietnamese-American community of Olympia, Wash. over statements in a Vietnamese language newspaper and websites that said he and his organization were Communist sympathizers. The appeals court held that the statements were opinion and rhetorical hyperboyle, and were not made with actual malice. Tan v. Le, No. 39447-2 (Wash. App., 2d Div. April 19, 2011).

Eric P. Robinson

Washington Supreme Court Reinstates Verdict

In a 6-1 decision, with three justices not participating, the Washington state Supeme Court has reinstated the jury's verdict, reversing the lower appeals court's ruling.

The majority rejected the appeals court's holding that "the right to call someone a communist" is a statement of opinion "protected by the First Amendment."

"We hold that the defamatory statements made by Norman Le and other authors were not protected opinion," the majority wrote in  Tan v. Le, No 86021-1 (Wash. May 9, 2013).

"The mere fact that the defendants disclosed a basis for their false charge that Tan and the [organization he leads] support the [Communist] VietCong government does not protect them from liability when the opinion itself is based on false and defamatory facts. ...  Indeed, the vast majority of the statements made by defendants were made as statements of fact, not opinion."

In his dissent, Justice J.M. Johnson wrote that "[t]he majority does not recognize the First Amendment's inherent protection of conjecture within a political debate," and that the statement should be protected as opinion.

But, in accordance with the majority's ruling, Mr. Tan will get the $310,000 awarded by the jury.

Eric P. Robinson