Photo courtesy iStock
By RANDALL CHASE, Associated Press
DOVER, Del. (AP) — Delaware’s Supreme Court on Aug. 16 upheld the dismissal of a defamation lawsuit filed by a Delaware attorney who was forced to resign from his law firm after defending a Pennsylvania high school’s American Indian mascot.
Scott Cousins, a Pennsylvania resident who worked at a Wilmington law firm, filed a complaint on his own behalf against the Unionville-Chadds Ford School District in August 2020 in an unsuccessful effort to prevent the district from retiring Unionville High School’s mascot. Sports teams at the school had long been known as the Indians, a reference to the Lenape Indian tribe, and the logo featured the letter “U” draped by a feather. The school’s mascot is now a longhorn steer whose horns form a “U” shape.
Less than an hour after Cousins filed the lawsuit, Rosemary Goodier, another Delaware attorney and Pennsylvania resident, sent an email to Cousins’ employer, Bayard, P.A., with a link to a related news article and a subject line saying the lawsuit “reflects poorly” on the firm.
“Members of our community wish to bring to the firm’s attention the lawsuit filed by one of your directors, Scott Cousins, against the Unionville Chadds Ford School District,” Goodier wrote.
“In all likelihood, your management committee approved this suit, but in the event that it did not, we would like to bring it to your attention,” she added. “We hope you can reflect upon how shockingly racist and tone deaf this suit is…. Our tax dollars and administrative resources will be plunged into countering some shockingly racist statements by Mr Cousins about protecting his white, Christian heritage.”
The next day, according to Cousin’s defamation suit against Goodier, the president of the Bayard firm demanded his resignation, while saying he knew Cousins was not a racist. Cousins was told that the lawsuit had caused “negative consequences” for the firm, and that the partners had lost confidence in him.
Cousins sued Goodier, alleging that she tortiously interfered with his employment agreement with Bayard, defamed him with her email, and conspired with others to injure him.
A Superior Court judge last year granted a motion to dismiss filed by Goodier, who argued that the statements in her email were “constitutionally protected opinion.” The judge described the accusations in Goodier’s email as “subjective speculation” or “merely rhetorical hyperbole” that amounted to non-actionable opinion.
The Supreme Court affirmed the lower court ruling, declaring that Goodier’s statements cannot be proven true or false and do not imply that they are supported by undisclosed defamatory facts.
As statements concerning an issue of public concern, moreover, they are entitled to heightened First Amendment protection and cannot form the predicate of the plaintiff’s tort claims,” Justice Gary Traynor wrote in a 48-page opinion.
“It is not within our purview to adjudicate the longstanding controversy surrounding mascots and symbols that use American Indian iconography. But that the recognition of such mascots and symbols is controversial and has been for decades is scarcely subject to doubt,” Traynor wrote, while also noting that the definition of what is “racist” is a topic of considerable disagreement among the public.
“It suffices that we conclude that Goodier’s statements, on their face, cannot reasonably be interpreted as stating actual facts,” he explained. “Ordinary readers of her email, instead, would understand her adjectival use of the word ‘racist’ and her reference to Cousins’ ‘white, Christian heritage’ as expressing her subjective interpretation of the tone and objectives of the Unionville Lawsuit. That interpretation, in our view, is not, without more, objectively verifiable as true or false.”
Given that Goodier’s statements were protected speech, they cannot serve as the basis for Cousins’ tortious interference claim, the justices also ruled.
“We offer no opinion on the merits of the controversy underlying the Unionville Lawsuit. Nor do we pass judgment on the civility of the means Goodier chose to air her grievance about the lawsuit,” Traynor concluded. “Our concern here is limited to whether her response gives rise to actionable state tort claims in light of the Free Speech Clause of the First Amendment. We hold that it does not and therefore affirm the judgment of the Superior Court.”
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