Wednesday, April 17, 2002
Page 7
PERSPECTIVES (Column)
C.A. Torpedoes Defamation Action by Woman Accused of Promiscuity
By ROGER M. GRACE
Court of Appeal Justice Mark B. Simons of the First District’s Div. Five has, in essence, taken judicial notice of the meaning—or non-meaning, as he sees it—of the word “skank,” and has concluded that a woman who is so described has no conceivable cause of action for defamation.
“The word skank is a derogatory slang term of recent vintage that has no generally recognized meaning,” Simons said in Seelig v. Infinity Broadcasting Corporation, filed yesterday. The opinion orders that the complaint be stricken as a SLAPP suit and that the defendant broadcasting station, on which the allegation was aired, receive attorneys fees and costs.
The problem with the decision is that Simons has declared “skank” to be a vague and meaningless term while, it would seem, the term has a definite meaning. Aside from referring to a style of dancing, it connotes a woman of loose morals.
While I had never encountered that term prior to yesterday, I was able to ascertain its meaning by 1.) asking staff members—the younger ones being readily familiar with the term—and 2.) looking it up on the Internet.
Among the definitions in The American Heritage Dictionary of the English Language, Fourth Edition (available at “dictionary.com”), is this: “One who is disgustingly foul or filthy and often considered sexually promiscuous. Used especially of a woman or girl.”
The Online Slang Dictionary provided on the UC Berkeley website (at OCF.Berkeley.EDU) characterizes a “skank” as “a dirty or promiscuous female. (‘Stay away from that skank.’)”
The Rap Dictionary (at rapdict.org) defines a skank as “[a] scandalous woman.”
The High Definition Dictionary (at hdd.rox.com) includes this explanation of the term: “a promiscuous person, esp. one who transmit sexual diseases.”
There is a website which offers photos under the category of “bitch/slut/whore/skank.” It would appear that the fourth term in the list is taken to have a meaning not unlike the three terms preceding it.
The plaintiff, Jennifer Seelig, was derided on a radio program in San Francisco. Though not mentioned by name, the remarks were understood by those who knew her to refer to Seelig. Along with some clearly non-actionable barbs cited in her complaint, this remark was made:
“…I found out more dirt about this girl, since we’re not saying her name. She actually is the ex-wife of someone who works at our sister station down the hall. And uh yeh, he just says what a big skank she is.”
It turns out he made no such allegation.
Simons, after proclaiming that “skank” has no definite meaning, said this:
“Indeed, plaintiff provided no accepted dictionary definition for the term skank to the trial court and, instead, only proffered a declaration from her ex-husband stating his understanding of the term skank as referring to ‘a woman of loose morals.’ Plaintiff has cited no reported decision in California or elsewhere that has held the term skank constitutes actionable defamation, nor has our own research revealed any such decision.”
The term is of too recent a vintage for there to be any such reported decisions. That does not mean that term is not actionable. Indeed, if a “skank” is understood to be a woman who is promiscuous, there are cases aplenty which establish that there is a cause of action to try. Indeed, under Civil Code §46, a false and unprivileged oral statement which imputes to a person “a want of chastity” is slander per se.
If there is uncertainty as to what is meant by calling a woman a “big skank,” it’s for a jury, not Simons, to make that determination.
Seelig cited the Court of Appeal’s 1985 decision in Selleck v. Globe International, Inc. which recognized that actor Tom Selleck’s father had a cause of action based on a newspaper falsely reporting that he had divulged certain facts about his son. Simons wrote:
“Even if we agree with plaintiff that attributing a quote to her ex-husband would reasonably be understood by the audience as an assertion of fact, rather than further irreverent hyperbole, her reliance on Selleck is misplaced. The party damaged in that case was the one quoted, not the subject of the quote. Though the Selleck decision may support the existence of a right by plaintiff’s ex-husband to sue for a false quote attributed to him, it supports no such right for plaintiff.”
This implies that an action may not be maintained by a person who is falsely reported to have been the subject of a damaging allegation by a third party. Not so.
An untrue report that A has alleged sexual misconduct on the part of B gives B a cause of action for defamation. That was established by the Court of Appeal in 1916 in Riley v. Evening Post Pub. Co. In 1933, the Court of Appeal in Mortensen v. Los Angeles Examiner observed that a false allegation that a person has been accused of adultery is actionable.
Here, what was said on the air was, in essence, that Seelig’s ex-husband had alleged that Seelig was promiscuous. The impression is that while they were married, he had ascertained that she had committed acts of adultery. The ex husband had, in truth, made no allegation of sexual misconduct on Seelig’s part.
The false statement, made by the radio show’s on-air producer, was heard and no doubt believed by listeners.
Simons attempted in his opinion to trivialize this by pointing to dialogue that followed and portraying the accusation as having come in the course of “light banter” which no one would take seriously. One of the hosts pointed out that the woman’s identity could easily be discerned from what had been said and that a problem of liability existed. The producer, Uzette Salazar, said of the purported allegation: “Anyway, it is coming from a jilted ex-husband. What does he know?”
Simons commented:
“The skank remark, the ensuing colloquy chiding Uzette for having made the remark, and Uzette’s efforts to assuage it by noting the source had been a ‘jilted ex-husband,’ are presented in such a way that no reasonable listener would take them as factual pronouncements.”
The posing of the question by Salazar (to whom Simons presumptuously refers by her first name) as to what a jilted ex-husband would know did not conceivably undo any damage. To begin with, a jilted ex-husband presumably would know if his ex-wife had been fooling around. Moreover, to refer to him as “jilted” implies that Seelig left him for another man which, if anything, would bolster belief that she had engaged in adultery.
Simons would dispute this. He said in a footnote:
“Plaintiff overreaches by contending that the term jilted indicates that plaintiff ‘dumped her husband as part of an infidelity or extramarital affair.’ The verb jilt has a much less inflammatory meaning according to Merriam-Webster’s, which defines jilt as: ‘to drop (a lover) capriciously or unfeelingly.’ (Merriam-Webster’s Collegiate Dictionary (10th ed. 2000) p. 628.) In addition, as with the other comments, this one was made in a manner demonstrating it was meant to be humorous banter, rather than factual.”
The overreaching, I would suggest, is on the part of Simons—who was joined in the opinion by Presiding Justice Barbara Jones and Justice Laurence Stevens. A lawsuit was scuttled based on Simons’ proclamation that a word, “skank,” has no certain meaning. The fact that the Miriam-Webster dictionary which he uses does not contain a definition hardly means that the definition might not be ascertained from other sources. Indeed, if he had walked around the office and asked anyone under 30 what the word means, he would have found out.
A correct decision was made by San Francisco Superior Court Judge David A. Garcia in denying the SLAPP motion. Even if he erred in denying that motion in the absence of a dictionary definition being provided to him by Seelig, a reversal with directions to dismiss the action is unwarranted.
It’s entirely possible that when the case was before Garcia, a definition was not available on any website or in hard copy form. In any event, Seelig should not be booted out of court simply because she did not establish in connection with a motion what a dictionary says a “skank” is.
There should be no uncertainty as to the meaning of the word “stank.” That would describe the opinion handed down yesterday in Seelig v. Infinity Broadcasting Corporation.
Copyright 2002, Metropolitan News Company