From Cooper v. Franklin Templetion Investments, decided Thursday by the Second Circuit (Judges Rosemary S. Pooler, Barrington D. Parker and Alison J. Nathan):
On May 25, 2020, Plaintiff, a white woman, encountered Christian Cooper (no relation), a black man in Central Park, while she was walking her dog and he was birdwatching. Plaintiff alleges that Mr. Cooper confronted her, and his “intentionally aggressive actions” caused her to “fear for her safety and the safety of her dog.” She alleges this fear caused her to warn Mr. Cooper that she would tell the police there was “an African-American man threatening [her] life,” and then to place a 911 call to that effect. The confrontation, which was recorded on a video that went viral, “became international news as a racial flashpoint.” Plaintiff alleges that she was “characterized as a privileged white female ‘Karen’ caught on video verbally abusing an African American male with no possible reason other than the color of his skin.”
Later that same day, Franklin Templeton published the following statement on Twitter regarding the incident: “We take these matters very seriously, and we do not condone racism of any kind. While we are in the process of investigating the situation, the employee involved has been put on administrative leave.” Plaintiff alleges that while Franklin Templeton did contact her that day, it did not seek to interview Mr. Cooper about the incident, did not obtain a recording of Plaintiff’s 911 call from the police, and did not take various other potential investigative steps. The following afternoon, Franklin Templeton put out another statement on Twitter (the May 26 Statement): “Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton.” As relevant here, Johnson, Franklin Templeton’s president and CEO, made two further public statements about the incident. In a June 2, 2020 interview with Bloomberg, in response to questions about Plaintiff’s termination, Johnson stated:
I just have to commend [ ] our crisis management team, it was a holiday. Everybody got together. We needed to spend time getting the facts. Sometimes videos can get manipulated and so you have to make sure that you’ve reviewed all the facts. I think the facts were undisputed in this case, and we were able to make a quick decision.
And in a July 6, 2020 interview with Fortune, Johnson stated: “[Defendants] espouse zero tolerance for racism.”
Ms. Cooper sued, claiming that she was fired based on race and sex, and that Franklin Templeton’s statements were defamatory. The court concluded that
Plaintiff fails to allege facts giving rise to even a minimal inference of discriminatory motivation with respect to her termination. To the extent that Plaintiff contends that Defendants “implicated the race of their employee with each of [their] communications to the public, by repeatedly connecting [their] stated stance against racism with their termination of the Plaintiff,” that argument fails as a matter of law. Defendants’ statements made no mention of Plaintiff’s race, and even to the extent they could be read as accusing Plaintiff of being a racist, “a statement that someone is a ‘racist,’ while potentially indicating unfair dislike, does not indicate that the object of the statement is being rejected because of h[er] race. ‘Racism’ is not a race, and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race.”
Plaintiff’s effort to raise an inference of discrimination based on Defendants’ treatment of other individuals is equally unavailing…. [But] the three proffered comparators each “occupied roles that were vastly different on their face” and allegedly engaged in misconduct that “is simply too different in kind to be comparable to [Plaintiff’s] conduct in this case.”
And the court rejected the defamation claim:
To the extent that Defendants’ statements are read as accusing Plaintiff of being a racist, the reasonable reader would have understood this to be an expression of opinion based on the widely circulated video of Plaintiff’s encounter with Christian Cooper. See, e.g., Silverman v. Daily News, L.P. (App. Div. 2d Dep’t 2015) (statements characterizing plaintiff’s written matter as “racist writings” are non-actionable opinion); Russell v. Davies (App. Div. 2d Dep’t 2012) (statements characterizing plaintiff’s essay as “racist and anti-Semitic” are non-actionable opinion); cf. Buckley v. Littell (2d Cir. 1976) (“[T]he use of ‘fascist,’ ‘fellow traveler’ and ‘radical right’ as political labels … cannot be regarded as having been proved to be statements of fact, among other reasons, because of the tremendous imprecision of the meaning and usage of these terms in the realm of political debate ….”).
Plaintiff attempts to salvage her claim by arguing that Defendants’ statements implied the existence of undisclosed facts upon which their opinion was based. However, we agree with the district court that the May 26 Statement—which did not on its face indicate that Defendants relied on any non-public information, and to the contrary specified that it was “following [Defendants’] internal review of the incident in Central Park yesterday“; was made less than 24 hours after video of the Central Park incident was circulated widely and “became international news as a racial flashpoint”; and “took place in the midst of an ongoing national reckoning about systemic racism”—would be understood by the reasonable reader as being based on the publicly available video of the incident. The same is true of the June 2 and July 6 Statements.
This is indeed the general legal rule (see more on that in this post). A statement that in effect communicates, “Based on these publicly disclosed facts about what Jane Smith did, we infer that she is a racist / sexist / anti-Semite / Communist / etc.,” is treated as a statement of opinion, and thus can’t be actionable defamation. On the other hand, a statement that in effect communicates, “We have evidence that Jane Smith did X or said Y,” when it turns out that she didn’t do X or say Y, is treated as a factual assertion, which can indeed be actionable defamation. The court concluded that, on the facts as alleged, a reasonable person would interpret Franklin Templeton’s statements as a comment on the publicly available facts, not a statement about supposed facts that Franklin Templeton had uncovered.
Bryan Killian and Grace E. Speights (Morgan, Lewis & Bockius LLP) represent Franklin Templeton.
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