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Sorry . . . I meant to call you a dumb "ASS"

In September 2001 John Vogel and Paul Grannis, both candidates for local public office, filed a defamation complaint Vogel et al. v. Felice, 127 Cal.App.4th 1006, 26 Cal.Rptr.3d 350, charging Joseph Felice with libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligent damage to reputation. The gist of the complaint was that Felice ran a website which contained defamatory statements about Vogel and Grannis, including a list entitled “Top Ten Dumb Asses,” in which Felice listed Vogel and Grannis as the number 1 and number 2 dumb asses, respectively.

The court held that in order to support a defamation claim, the challenged statement had to convey a provably false factual assertion. In odering the lawsuit be striken under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, Code of Civil Procedure section 425.16 (section 425.16 or the Act), the court found that a statement that either Vogel and Grannis was a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation.

Noting that it is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence,” depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. The court held that to call a man “dumb” often means no more than to call him a “fool.” One man’s fool may be another’s savant. Indeed, a corollary of Lincoln’s famous aphorism is that every person is a fool some of the time.

As Felice did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass,” the court found that when applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb,” the court held, merely converts “contemptible person” to “contemptible fool.” Acknowledged that Vogel and Grannis were justifiably insulted by this epithet, the court noted Vogel and Grannis failed entirely to show how it could be found to convey a provable factual proposition. The dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

Nothing in the record suggested that the context in which the challenged statements were made would have infused Vogel or Grannis with a provably false meaning. Judging from additional portions of the website offered by Vogel and Grannis, the website’s overall tone was one of “puerile vituperation and wretchedly excessive tastelessness.” The court found the main purpose of the page seems to be to employ the term “ass” as often as possible, preferably in conjunction with “dumb.” In such a context, the court held, it is inconceivable that placement on the “Top Ten Dumb Asses” list could be understood to convey any imputation of provable defamatory fact. In odering the lawsuit striken, the court concluded that Felice’s statement simply could not support a defamation claim.

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