The First Amendment and the Law of 'Skank'

The NY Post reports on the case of a model battling a blog saying nasty things about her:

A former Vogue cover girl is standing up to cyber bullies - fighting to unmask the anonymous cowards who've turned to the Web to ruin her reputation in the modeling business with a "Skanks in NYC" blog.

Liskula Cohen, 36, is seeking a court order that would force Google to reveal the person or persons behind the postings so she can hold them accountable with a defamation lawsuit.

The anonymous bloggers have "posted entries, including photographs, captions to the photographs and commentary solely about Liskula Cohen that describe her as a 'skank' and a 'ho,' " her filing in Manhattan Supreme Court says.

So is it defamatory to call someone a "skank"? Not in California! The California Court of Appeal considered this precise issue in a case called Seelig v. Infinity Broadcasting and determined that the First Amendment protects the right to call someone a "skank" because the word has "no generally recognized meaning," is "a "subjective expression of disapproval, devoid of any factual content," and is mere "rhetorical hyperbole":

The phrase big skank is not actionable because it is too vague to be capable of being proven true or false. Attributing the comment to a specific source, plaintiff' s ex-husband, does not alter that conclusion. The word skank is a derogatory slang term of recent vintage that has no generally recognized meaning. Like "' creepazoid attorney,' "it is a "subjective expression[] of disapproval, devoid of any factual content." (Ferlauto v. Hamsher, supra, 74 Cal.App.4th at p. 1404; Copp v. Paxton (1996) 45 Cal.App.4th 829, 838.) 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.

Furthermore, when considered in the context of defendants' entire radio broadcast, the term skank constitutes rhetorical hyperbole which no listener could reasonably have interpreted to be a statement of actual fact. The irreverence of the Sarah and Vinnie morning radio program, which may strike some as humorous and others as gratuitously disparaging, is not atypical of this genre. (Hobbs v. Imus (1999) 266 A.D.2d 36 [698 N.Y.S.2d 25]; Wilson v. Grant (1996) 297 N.J.Super. 128 [687 A.2d 1009].) Listening to the tape of the radio broadcast confirms the nonserious nature of the discussion apparent from the written transcript. The colloquy comes across as light banter between the participants, frequently punctuated by laughter, concerning the Show and plaintiff' s unwillingness to be interviewed on defendants' radio program without receiving written assurance that defendants would not "bag on her." 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," [FOOTNOTE 7] are presented in such a way that no reasonable listener would take them as factual pronouncements. (See Hobbs v. Imus, supra, at p. 26.)

As useful as the Seelig decision is to attorneys defending media clients, I don't think it's particularly persuasive on the "skank" point; most people know what the word actually means. So New York judges may not agree with their colleagues to the west. (And the Post article does make clear that the blog used words other than "skank" that may be more clearly actionable.) So we First Amendment lawyers can still look forward to the day when the Supreme Court may be called in to resolve the pressing issue of the various states' disagreements over skank.