A Kansas City fan–was a child–“wore “Native American headdress, painted his face black and red, and donned a Chiefs Jersy.” The sports blog Deadspin wrote an online article claiming this was “black face” and was “hate” directed at “Black people and the Native Americans.”
Interestingly, after the fan’s parents requested Deadspin to remove the article, Deadspin republished an updated version on November 30, 2023 that “retained accusations of … Black face, hatred for Black people and the Native Ameri, and continued to display his picture.” Later in December, Deadspin “again updated the article” but removed the “picture and changed the headline to read ‘Culturally Insensitive Face Paint’ instead of ‘Black face.'”
On February 6, 2024, the child’s parents sued Deadspin for defamation. They alleged that the article “caused them serious reputational and emotional harm” after receiving “hateful messages and death threats.” Deadspin then asked the Court to dismiss the case because “the article contained an expression of opinion and is therefore insulated from … defamation claims.”
The Court applied “California substantive law” concerning defamation “because that is the plaintiff’s home state.” And as the Court noted, under California law, defamation requires four things: “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” California also uses a “totality of the circumstances test” to determine if a “reasonable fact finder” could conclude that a “published statement declares or implies a provably false assertion of fact.”
Delaware trial court Judge Sean Lugg’s Order is available at: https://courts.delaware.gov/Opinions/Download.aspx?id=370430.
You likely will want to read Professor Eugene Volokh’s post on this Order, and any post of his or his blog “The Volokh Conspiracy” concerning defamation law: https://reason.com/volokh/2024/10/08/young-kansas-city-chiefs-fans-and-familys-defamation-lawsuit-against-deadspin-based-on-blackface-allegations-can-go-forward/.
