2 Chainz Likely to Beat Defamation Rap: Defamation Actions can be Problematic

Rapper 2 Chainz was sued in North Carolina court by Christine Chisholm, a woman who claimed she was referred to as a “THOT” (“that ho’ over there”) in a video, posted on YouTube, in which she appeared backstage after a 2 Chainz concert. (See “2 Chainz Sued for Five Million Over ‘THOT’ Video.”) In the video, 2 Chainz asks his rap colleague “Cap 1” “Is this your THOT?” while Ms. Chisholm is waiting in another room, apparently having been invited backstage. She is then invited to approach 2 Chainz, speaks with him for about a minute, at one moment directly speaks into the video camera, and is then asked to leave.   The characters #isthisyourthot appear over the entire video. She was then fired from her job as desk manager at a barbershop allegedly because, according to her manager, the video would cause negative publicity for the business. The complaint alleges that Chisholm suffered damages, including mental suffering, injury to reputation and injury to her ability to work in an amount in excess of $5,000,000.

Persons publicly insulted may seethe with a desire to sue their antagonist for defamation, the utterance or publication of false statements causing injury to reputation. Defamation cases, however, can be hard to prove and difficult to justify economically.

The defamation plaintiff must prove that the statement in question was one of fact, in other words, an assertion capable of being proven true or false. Statements of opinion, name calling or hyperbole will not support a defamation case. A statement that a person had been convicted of a felony is an assertion of fact, whereas a statement that a person is a “jerk” is not. A California jury would be told to consider whether recipients of the statement reasonably concluded that statement was an assertion of a true fact. In Ms. Chisholm’s case, the term “THOT” would likely be received as one of a rapper’s derogatory slang terms for women generally, not an assertion by 2 Chainz that Ms. Chisolm was a prostitute.

If the defamation plaintiff is a public figure, s/he must meet heightened standards, proving by clear and convincing evidence that the defendant knew the statements were false or had serious doubts about their truth. This is due to First Amendment concerns that robust discussion of public issues not be unduly restrained by threats of litigation.

If these elements are proven, the plaintiff must then show that others relied on the false statement and s/he consequently suffered damages. If two businesses were competing for a valuable contract, and one procured the contract by falsely stating that the CEO of the competitor was a convicted felon, this would be excellent proof of reliance and specific damages. The problem is that few defamation causes involve such clear proof. More often the plaintiff feels certain that the false statement must have caused injury, but there is no witness to say that he heard and relied on the false statement, resulting in a specific loss. Damages for shame and hurt feelings are theoretically available. An instruction is available for defamation in the business arena that the plaintiff is presumed damaged and that nominal damages may be awarded. However, in the absence of evidence of tangible monetary losses, I would think a jury would be slow to award more than nominal damages.

Nearly one hundred years ago, Henry Ford sued the Chicago Tribune over an article entitled “Henry Ford is an Anarchist,” filled with hyperbolic insults to the Ford Motor Company founder. After a fourteen week trial, the jury concluded that Ford had been defamed, but apparently unable to conclude that he had lost any money, awarded him six cents. (See “The Libel Case with a Six Cent Verdict.”)

My prediction in the pending case is that the judge eventually dismisses Ms. Chisolm’s case, unless 2 Chainz chooses to enter into a quiet settlement.

Those of us who are the target of insulting behavior are most often better off weathering life’s slings and arrows without attempting the daunting task of proving a defamation case in court.