Judge Socrates P. Manoukian has denied San Francisco Science Fiction Convention Inc.‘s motion for summary judgment in the defamation lawsuit brought against them by Jon Del Arroz. SFSFC (Worldcon 76) had asked the court to render summary judgment on the record already submitted in hope of getting the case dismissed without trial.
The court’s tentative ruling was posted online this afternoon in advance of the hearing set for May 11. The case will proceed to a jury trial scheduled to start on June 14 unless it is settled beforehand.
SFSFC, Inc. is the parent corporation of Worldcon 76, held in San Jose. Del Arroz sued SFSFC in 2018 after the Worldcon 76 committee announced he would not be allowed to attend the convention (“Del Arroz Files Suit Against Worldcon 76”. In February 2019, the court tossed four of the five causes of action in Del Arroz’s lawsuit against Worldcon 76’s parent corporation. The case continues on the fifth complaint, defamation, which focuses on SFSFC’s statement on social media banning Del Arroz from attending Worldcon 76:
…Thereafter, defendant SFSFC’s official and authorized social media posted on Facebook the following statement about the alleged reason that Plaintiff had been barred from WorldCon76: “Worldcon76 has chosen to reduce [Plaintiff’s] membership from attending to supporting. He will not be allowed to attend the convention in person. [Plaintiff’s] supporting membership preserves his rights to participate in the Hugo Awards nomination and voting process. He was informed of our decision-via email. We have taken this step because he has made it clear that he fully intends to break our code of conduct. We take that seriously. Worldcon76 strives to be an inclusive place in fandom, as difficult as that can be, and racist and bullying behavior is not acceptable at our WorldCon. This expulsion is one step toward eliminating such behavior and was not taken lightly. The senior staff and board are in agreement about the decision and it is final.”
Today’s court ruling addresses five arguments Worldcon 76’s attorney made in moving for summary judgment. Judge Manoukian said that four of the defense’s contentions were not proven, and another would need to be decided by a jury.
Here are excerpts from the court’s comments on those five points.
- Non-actionable opinion.
…In looking at the statement by defendant SFSFC at issue, it does not engage in baseless name-calling nor does it simply charge Plaintiff with being racist in some abstract sense. Instead, the average reader would understand Plaintiff has been banned from attendance at WorldCon76 “because [Plaintiff] has made it clear that he fully intends to break our code of conduct” by engaging in “racist and bullying behavior.”
Like in Overhill, defendant SFSFC’s statement accuses Plaintiff of engaging in some actual, concrete, wrongful conduct which led defendant SFSFC to believe Plaintiff would further engage in “racist and bullying behavior.” Whether Plaintiff had done so in the past or was likely to do so in the future must be based on some factual underpinning. As explained in Overhill, “if those [underlying] facts are either incorrect or incomplete, or if [defendant’s] assessment of them is erroneous, the statement may still imply a false assertion of fact.” At the very least, this court is of the opinion that a reasonable fact finder could conclude defendant SFSFC’s statement declares or implies a provably false assertion of fact.
As an alternative basis for summary judgment, defendant SFSFC contends its statement was privileged. “If the privilege arises, it is a complete defense.”
… Defendant SFSFC contends its statement was privileged because it was between “interested” parties with a mutual interest in the subject of WorldCon and for the safety of members/ attendees, in particular. Of relevance, defendant SFSFC proffers evidence that it received complaints from people in the science fiction community, including members who planned to attend WorldCon76, who had observed Plaintiff’s behavior and were afraid of confronting such harassing and disruptive conduct at the convention. Due to the ongoing controversy surrounding harassment in the science fiction community and the significant concerns raised by Plaintiff’s activities, the Committee deemed it necessary to make a statement regarding its decision.
In opposition, Plaintiff proffers evidence which raises a triable issue of material fact with regard to whether the privileged publication was made “to a person interested therein” and/or whether defendant SFSFC lost the privilege by abusing it in sending it to a much wider audience than “interested persons.” Specifically, Plaintiff proffers evidence that WorldCon76’s social media included a website and Facebook page. The readers of WorldCon76’s social media page included people [who] had never heard of [Plaintiff] or who had no concerns about [Plaintiff].
The court concluded this portion with a quote from a precedent case that indicates the issue of privilege is ambiguous enough that it needs to be determined by a jury.
- Public figure – actual malice.
Defendant SFSFC continues with its motion for summary judgment by arguing that Plaintiff is a public figure or limited purpose public figure and, consequently, must establish actual malice in order to prevail on a claim for defamation.
The court said that it did not find that Del Arroz is an “all purpose public figure” on the evidence presented.
The court also did not find that Del Arroz is a “limited purpose public figure.”
The court is not persuaded that Plaintiff, by thrusting himself into the public eye with regard to a particular controversy (political boycott/ exclusion/ cancel culture), Plaintiff has become a limited purpose public figure with regard to the defamation at issue in this case. Defendant SFSFC apparently suggests that because Plaintiff is, in defendant SFSFC’s assessment, a bad actor or behaves bad with regard to the topic of political boycott/ exclusion/ cancel culture and every topic he discusses, then his private words and acts are fair game in this case because the defamation relates to his bad acting/ bad behavior. If this were to be the case, then Plaintiff would essentially be an all purpose public figure and there would be no meaning to the term “limited purpose” and no need for there to be a nexus to a discrete matter of public controversy.
As a separate basis for summary judgment, defendant SFSFC contends its statement about Plaintiff is true. As noted above, the gist of defendant SFSFC’s statement is that Plaintiff has been banned from attendance at WorldCon76 “because [Plaintiff] has made it clear that he fully intends to break our code of conduct” by engaging in “racist and bullying behavior.” Defendant SFSFC proffers evidence that its code of conduct prohibited harassing behavior and proffers evidence that Plaintiff had previously engaged in harassing behavior online and Plaintiff threatened to wear a body camera into a convention space to film anticipated “hijinx.”
While defendant SFSFC’s argument and evidence addresses the charge that Plaintiff intended to engage in bullying behavior, defendant SFSFC does not address what the court considers to be the primary “sting” of the statement, i.e., that Plaintiff intended to engage in racist behavior. The court does not consider this to be a slight or minor inaccuracy which can be left unjustified.
Consequently, the court is of the opinion that defendant SFSFC has not met its burden of proving the truth, or substantial truth, of the alleged defamatory statement.
- Libel per se/ Libel per quod.
As a final basis for summary judgment, defendant SFSFC contends the purportedly defamatory statement is libel per quod and, therefore, Plaintiff must prove that he has suffered special damages which he cannot do. Defendant SFSFC cites two examples of libel per se (accusation of crime or being unfit to practice trade, business, or profession) and argues that since neither of those situations exist here, then the alleged defamatory statement must necessarily be libel per quod. The court does not agree with defendant SFSFC’s logic. No extrinsic aid is necessary to perceive an accusation of being racist as tending to injure the subject’s reputation. Consequently, the court need not address whether Plaintiff can or cannot establish that he has suffered special damages…
A copy of the ruling can be downloaded below; the part related to the Del Arroz suit begins on page 21.