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George Washington University Law School

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Wednesday, April 23, 2008

CNN sued for Cafferty's "thugs and goons" comment

CNN has now been sued in China over Jack Cafferty's now-famous "thugs and goons" comments. Lawsuits have been brought in both Beijing and Luoyang. According to news reports, the Beijing court has not yet "accepted" the case (this might refer to formal docketing (li'an 立案)); the Zhengzhou court has "accepted" (接受) the complaint (in this case, presumably meaning it has agreed to read it and think more about it), but has not yet decided whether to docket it.

Here's my quick-and-dirty analysis (I'm busy preparing for a class):

Chinese law does allow damages for what under US law would be considered merely insulting expressions of opinion (and therefore non-actionable) - I'm thinking of the case in which a journalism professor sued a web site for posting a student's derogatory opinions about him and his teaching materials. (Discussed here.) Thus, under existing Chinese law, I think the Dalai Lama, Nancy Pelosi, Chris Patten, and Chen Shuibian might have a good case against Xinhua and various Chinese government officials (although of course the prospects of their being allowed to sue and win are, to say the least, remote). The problem here, though, is different: can individuals who feel offended by a general derogatory reference about their group do anything about it? (Let's assume for the sake of argument that Cafferty was including all Chinese, and not just the government.) To allow this kind of suit is opening a real can of worms. The relevant precedent in this case might be the Zhengzhou lawyers who sued the Shenzhen Public Security Bureau because they were offended at the PSB's insulting banner about Henan criminal gangs. (Discussed here.) That case ended in a mediated settlement, though, so we don't have a court ruling. Still, I guess it's significant that the court accepted the case in the first place, and didn't throw it out immediately as not stating a claim. At the same time, though, the court in question was a Zhengzhou court, and in any case may not have analyzed the complaint in terms of whether or not it stated a claim for which relief could be granted.

SUPPLEMENTAL POST: Prof. Eugene Volokh, a First Amendment expert at UCLA School of Law, has very kindly responded to my invitation to comment on US law aspects as follows:

Indeed, under U.S. law the "thugs and goons" comment would be clearly constitutionally protected opinion.  Even under Beauharnais v. Illinois (1952), which upheld some sorts of group libel laws, such a statement about a foreign country would likely be protected.  But Beauharnais is widely (and correctly, I think) viewed as having been implicitly overturned by New York Times v. Sullivan (1964) and later libel cases.

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Comments

Indeed, under U.S. law the "thugs and goons" comment would be clearly constitutionally protected opinion. Even under Beauharnais v. Illinois (1952), which upheld some sorts of group libel laws, such a statement about a foreign country would likely be protected. But Beauharnais is widely (and correctly, I think) viewed as having been implicitly overturned by New York Times v. Sullivan (1964) and later libel cases.

Posted by: Eugene Volokh | Apr 23, 2008 2:08:35 PM

I personally think that Cafferty should be forced to pay every dime of the $1.3 billion or be held in contempt of court and sold into slavery along with his immediate family to live on a Chinese work prison. I can't wait for China to take over this country. They will make good governors and bring order and probity back to Washington and end all racism. Their culture is the oldest in the world, rooted in the values of Confucianism which teach honesty and altruism. Our laws are rooted in money and corruption going all the way back a paltry 400 years if you consider Blackston's Commentaries to be the seed of American jurisprudence.

Posted by: James Leather | Oct 12, 2008 4:25:10 AM

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