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Beyond the law

Kia Vaughn out to make a point in suit against Imus

Posted: Thursday August 16, 2007 11:26AM; Updated: Thursday August 16, 2007 1:46PM
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Can Rutgers' Kia Vaughn win her case?  Maybe not, but she could still get what she wants.
Can Rutgers' Kia Vaughn win her case? Maybe not, but she could still get what she wants.

SI.com caught up with Mississippi College School of Law professor Michael McCann, who is a frequent contributor to a blog on sports law, about the lawsuit Rutgers center Kia Vaughn's filed against Don Imus.

SI.com: On what grounds is Kia Vaughn suing on?

McCann: Kia Vaughn has filed a civil claim against Don Imus, alleging he intentionally used slanderous terms to describe her on his radio show. She apparently has other claims as well, but the slander claim will likely prove to be the most contested. Slander is the oral version of defamation, which refers to an untrue public statement that injures another person's reputation and exposes that person to public ridicule. Imus's comment that Vaughn and her teammates were "nappy-headed hos" serves as the primary basis for her claim.

SI.com: What are her chances and what will she have to do to win?

McCann: Slander is tough to prove. Vaughn will have to establish the basic elements of a slander claim and overcome any defenses Imus brings forward. First, she will have to show Imus's statements defamed her. Determining what constitutes sufficient "defamation" usually depends on the case law in the jurisdiction, but it is generally a high threshold; mere insults and embarrassment typically do not suffice. On the other hand, statements that are particularly egregious and well-publicized can be characterized as defamatory per se.

The second part of her claim is easy: she will have to show that Imus communicated his derogatory statements to a third-party. Given his large audience, that clearly happened.

Third, she will probably have to show Imus knew or should have known his statements were false. Vaughn should be able to succeed on this prong.

Then again, slander poses additional hurdles for "public figures." Whether one is a "public figure" often generates extensive litigation, but one typically becomes a public figure when discussion about him or her becomes a matter of public concern. [If Vaughn is a public figure] instead of merely having to show Imus should have known better, Vaughn would have to establish he willfully lied about her.

SI.com: What are some defenses Imus has?

McCann: Imus has several possible defenses at his disposal. The most significant, and perhaps strongest, is the First Amendment protects statements of opinion (as distinct from statements of fact). Whether a statement is an opinion or one of fact is not based on the intent of the speaker, but rather on how a reasonable person would perceive the statement.

Some factors include whether the statement was a matter of public concern, whether it was expressed in a manner that cannot be proven or disproven, and whether the language seemed hyperbolic or exaggerative. The more the statement concerned the public, could not be proven or disproven, and seemed like hyperbole, the more likely it will comprise a statement of opinion.

SI.com: How likely is it that this will settle out of court?

McCann: It is highly likely that this lawsuit will settle out of court. Even though I believe it will be difficult for Vaughn to succeed, the lawsuit itself is highly damaging to Imus, and he will thus have a strong incentive to settle.

SI.com: What are some of the implications for Imus and CBS of this lawsuit?

McCann: The lawsuit should further encourage CBS and other broadcasters to develop more stringent guidelines for on-air remarks. Along those lines, networks should avoid creating situations in which broadcasters are more likely to make derogatory statements. As Harvard Law School professor Jon Hanson and I recently argued in a Situationist article, we believe Imus's comments were as much about the forum in which he worked as they were about him.

SI.com: Why would she file if she can't really win?

McCann: It's sort of corrective justice and also a way of saying the law doesn't recognize my claim that something wrong happened. There's a reputational component -- I think she wants people to know she was hurt in a way most people can say was wrongdoing. Practically speaking Imus will want to settle it. Honestly, I don't believe she's motivated by money.