When someone calls another person a “racist,” as Sen. Bernie Sanders did of President Donald Trump on Martin Luther King Jr. Day, is it considered defamatory speech?
Speaking at an event in South Carolina on Jan. 21, Sanders labeled the president of the United States “a racist,” but didn’t offer evidence of the claim.
“I must tell you it gives me no pleasure to tell you that we now have a President of the United States who is a racist. We have a president intentionally, purposefully trying to divide us up by the color of our skin, by our gender, by the country we came from, by our religion,” Sanders said.
Following the remark, Republican National Committee Chair Ronna Romney McDaniel came to the president’s defense in a tweet.
“Absolutely disgusting and wrong. [Trump] has brought African American and Hispanic unemployment to record lows, passed historic criminal justice reform. Even worse that Bernie is using MLK Day to make an incendiary comment like that,” McDaniel wrote.
Hurling “racist” accusations across the political aisle has been a staple of some politicians during election cycles going back to 1968. But do such insults pose any legal risk to the person committing the slur?
Last August, when “CNN Tonight” news host Don Lemon said President Trump “traffics in racism,” he appeared to receive no consequence for making the claim.
Nevertheless, calling someone “racist” without cause is highly damaging to the person accused and has become a powerful political tool of the left in the United States.
Are smears legally actionable?
According to current legal opinion, calling someone a “racist” may be moot as far as defamation and slander claims are concerned. Defamatory statements are defined by legal sources as any communication which harms an individual’s reputation so much that it negatively impacts the person’s respect or confidence on the job or in the community.
Aaron Minc, principal of Minc Defamation Law LLC, in Orange Village, Ohio, told True North that Trump wouldn’t have much luck going after Sanders on legal grounds.
“Unfortunately, there really isn’t much or any of a case here for defamation — certainly not in the context of politicians calling each other names,” Minc said of the Sanders comment.
“Statements by public officials are pretty well protected, so not likely a defamation case here. There’s little a president can do,” he said.
Minc noted that defamation laws vary from state to state, and the person who is smeared must prove that a statement was defamatory in order to make a claim.
Clay Calvert, a mass communication professor at the University of Florida in Gainesville, has written that only factual assertions are grounds for libel and defamation suits.
“The bottom line is that what is defamatory will vary from time to time and place to place,” Calvert wrote in a 2014 HuffPost commentary. “Proving whether or not one actually is a homophobe [for example] will be extremely difficult. … Mere name-calling generally does not make for successful libel suits. And to the extent that people loosely bandy about the word homophobe, much like they often do ‘racist,’ some courts may simply find it to be an expression of opinion unless there are factual instances of discrimination to back it up.”
Calvert cites the 2013 Forte vs. Jones federal court ruling in which the judge declared “the allegation that a person is a ‘racist’ … is not actionable because the term ‘racist’ has no factually verifiable meaning.”
In other countries, however, false accusations of racism may carry more weight, at least compared to the United States.
Attorney Ivan Israelstam, of Labour Law Management Consulting, a legal firm located in Randburg, South Africa, reports that accusations of racism, especially in the workplace, in the are taken seriously in the former apartheid nation. False accusations of racism are taken just as seriously, too.
“Employees must avoid making false accusations of racism as this could put them on hot water,” according to Israelstam. “In the case of SACWU and another vs NCP Chlorchem (Pty) Ltd (2007, 7 BLLR 663) the employee was attending a meeting when he unjustifiably accused a colleague of racism and threatened to call for his dismissal. The employee was then dismissed for having made a false allegation of racism. He then referred a dispute of unfair dismissal to the bargaining council where the arbitrator upheld the fairness of the dismissal. The employee then took the matter to the (South African) Labour Court where it was decided that: Falsely accusing a person of racism threatens racial harmony at the workplace, it is racially offensive, abusive and insulting, and such accusations therefore deserve strong discipline.”
TNR reached out to Daniel McLean, spokesperson for Bernie Sanders, to comment on the Vermont senator’s slur against the president. He did not respond to multiple requests for comment.
Lou Varricchio is a freelance reporter for True North Reports. Send him news tips at firstname.lastname@example.org.