Defamation Semantics

Nicholas Carroll
September 16, 2018

Courts routinely hew to the standard of what “a reasonable person” would think, either through a judge’s decision, or a judge’s advice to the jury, or simply the jury going their own way. However equally reasonable people can see things differently depending on their cultural background. In stopping our car for a red traffic light, “reasonable” means the same thing in any culture. When it comes to insults, what is reasonable can vary wildly. (See ethnolinguistics – in plain English, how words are understood when seen by different ethnic groups.)

in 2018 I've seen S. California juries award wildly varied damages to plaintiffs based on the interpretation of hazy libel – which is not all that hazy when understood in context:

1. $2.5+ million in damages – the full claim – awarded to three Vietnamese-Americans described as "communists" in an online Vietnamese venue. To a mainstream American born in the U.S., the accusation would be more confusing or humorous than anything else, as in “Huh? I don’t think so. Let me check my wallet to see if I have a Communist Party card!” But the jury apparently understood the accusation in the right context, since the word is hugely defamatory in the cultural context of someone who fled Vietnam, much as it would be to a Cuban who fled Cuba after Fidel Castro became dictator.

2. Less than $100,000 (on a $5 million claim for damages) awarded to a Mexican woman imputed to be a "puta" online, with numerous nasty user comments using that exact word.

The jury probably didn’t understand that this is more harmful to a Hispanic woman than calling a mainstream American (woman or man) "a whore." To call a mainstream American a whore might refer to their business methods – that they will do anything for money – but in this case the defamation was entirely sexually-oriented.

Accusing a mainstream American of being a prostitute would probably confuse readers more than anything, with thoughts like “But aren’t they married?” or “How do they manage that while working nine-to-five and raising kids?” If anything, the accusation would probably make the accuser look like a nut case, hurting their reputation more than the target’s. But Latin culture is different: “puta” easily means “slut,” “nympho,” “sleeps around,” “cheats on her husband with multiple partners,” or any number of connotations highly damaging to her reputation.

Why the huge difference? Because most mainstream Americans are of Northern European cultures, and “honor” (to the extent that Americans value that word) is defined by their relationship to other people, or whether they obey the law. To someone from a Hispanic culture, honor is defined by their relationship with God … a deeper and more emotional issue.

The Bottom Line In Foreign Cultures:
When defamation depends on the jury understanding the allegations in the correct cultural context, then a successful defamation claim can depend on either getting a jury from that particular cultural group, or having a witness clarify the contextual meaning for the jury. If the case depends on a witness, who should that be?

In written translation, the ideal is that the translator is native – not merely “fluent,” which can mean anything or nothing – in both languages. If the translator is only native in one of the two languages, then – picking the lesser of two evils – in written translation the translator should be native in the “target language” – in this case, U.S. English.
    E.g., with a translator native to the target language, President Jimmy Carter would never have said “I lust for the Polish people” to a Polish audience. Luckily, Poles have a sense of humor, and after a roar of laughter, the American-trained translator was quickly replaced with a native Pole who re-translated it as “I love the Polish people.”

In courtroom testimony, I would probably lean the other way: that the translator should be native to the language of the defamation, to be sure they understand the full depth and breadth of the defamation. If their English accent is not perfect, that might be to the good, particularly if their facial expression clearly conveys the extent of the defamation.

(This will generally not be an issue with Spanish or most European languages, where one can find translators who are completely native bilingual speakers. Get into Hmong, Cambodian, or Thai, and there might be a hard choice to make.)

American Cultures
Europeans like to think of the U.S. as a consistent culture. They’re wrong; it’s a huge country with diverse cultures. Americans themselves are often equally unaware of the diversity. The insult “trash” means next to nothing in Boston. In the Deep South, it’s “fighting words,” and strongly suggests that a person is completely worthless, unemployable, and who knows, possibly a drug addict and child molester.

Other states? Try “trailer park trash” for a hot button defamatory term. Again meaningless in Boston or New York City, in vast areas of America where people do live in trailer parks, it’s extremely defamatory.

How Long Before a Defamatory Word Loses Its Meaning?
Anywhere from a generation to hundreds of years. In formerly Nazi-occupied European nations, “collaborator” is still a deadly insult, and it will remain so until the last actual Nazi collaborator has died. (The nations that collaborated with the Nazis will probably still be disliked, but there are little grounds for a defamation lawsuit against a group.) In a Vietnamese-American community, “communist” will still anger people born in the U.S., but its defamatory significance will drop off fast when the last living refuge from Vietnam dies. The same holds true for calling Cuban-Americans a communist; the second generation will still be angered by the insult, but it won’t be seriously defamatory to their reputation.

Conclusion
The meaning of a single word in the context of a niche or subculture can make or break a case … for either plaintiff or defendant.

Background note: Carroll is or has been a native speaker in English (American, British, and Canadian), French, and Italian, and a fluent speaker in Spanish and Sicilian.

References

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