It didn’t take long for Central Park dog-walker Amy Cooper to become the object of national scorn. Her partially-recorded confrontation with an African American man in “the Ramble” went viral, and the clash was deemed a racist act by many on social media. Christian Cooper, an avid birdwatcher, said that it was “wholly inappropriate and abhorrent” for people to send Amy Cooper death threats, but he also said the moment she called 911 and told police he was threatening her in the park was “definitely” a “racist act.”
Some have suggested that the outrage over this video was Covington 2.0, a reference to the media and social media response to a video of Covington Catholic high school students and Native American activist Nathan Phillips at the March for Life in 2019. The various statements about that encounter gave rise to multiple defamation lawsuits, one of which was settled. On Wednesday, Law&Crime addressed the question of whether Cooper could sue Franklin Templeton for wrongful termination. The general consensus from attorneys, to say the least, was that an employment law claim would be difficult. What about defamation, however? Law&Crime asked three attorneys for their thoughts on the matter.
But before we get to their analysis, let’s address relevant context.
What Is Defamation?
The legal concepts of libel and slander have generally been rolled into the modern concept of defamation in many courts. To prove defamation, a plaintiff must show:
(1) a false statement purporting to be fact, which pertains to the plaintiff; (2) publication or communication of that statement to a third person or group of people; (3) fault amounting to at least negligence; and (4) damages or harm suffered by the plaintiff.
The legal standard for fault changes depending on the status of the plaintiff. All-purpose public figures and politicians, by their choices to inject themselves into the public spotlight, have a harder time proving defamation on account of their statuses.
What’s Been Said and Written
Kyle Smith wrote in the National Review on Wednesday that “The Central Park Dog Case Is Covington 2.0” and that Amy Cooper should consider suing Franklin Templeton for defamation.
Those who have defended Amy Cooper, Smith among them, point to Christian Cooper’s own words about what was said before he started recording, which he posted on Facebook [emphasis ours in bold]:
Central Park this morning: This woman’s dog is tearing through the plantings in the Ramble.
ME: Ma’am, dogs in the Ramble have to be on the leash at all times. The sign is right there.
HER: The dog runs are closed. He needs his exercise.
ME: All you have to do is take him to the other side of the drive, outside the Ramble, and you can let him run off leash all you want.
HER: It’s too dangerous.
ME: Look, if you’re going to do what you want, I’m going to do what I want, but you’re not going to like it.
HER: What’s that?
ME (to the dog): Come here, puppy!
HER: He won’t come to you.
ME: We’ll see about that…I pull out the dog treats I carry for just for such intransigence. I didn’t even get a chance to toss any treats to the pooch before Karen scrambled to grab the dog.
HER: DON’T YOU TOUCH MY DOG!!!!!
That’s when I started video recording with my iPhone, and when her inner Karen fully emerged and took a dark turn…
Smith argued that Amy Cooper “possibly” overreacted but wasn’t unreasonable in interpreting Christian Cooper’s words as “menacing.”
“What Mr. Cooper said to her was unmistakably a threat. It was reasonable for her to be scared. ‘I’m going to do what I want, but you’re not going to like it’? That’s a menacing thing to say,” Smith wrote. “He then called the dog over while offering it a treat. He meant her to think he was going to poison her dog to motivate her to leash the animal. By his own admission, he said something calculated to frighten her. Apparently, he does this all the time; he carries dog treats while birding ‘for just such intransigence.’ If there were no threat linked to his offering the dog a snack, he would not have prefaced this action by saying, ‘You’re not going to like it.’ He didn’t say, ‘Look, let’s be reasonable here, I’ll even give your dog a nice snack to show I mean well.’ Mr. Cooper intended to scare Ms. Cooper, he succeeded, and in her fear she called the cops.”
One of the first things Ms. Cooper said publicly after the video spread far and wide was that she is not a racist but was afraid in that moment. In a Tuesday statement, Amy Cooper said she “made false assumptions” about what Christian Cooper meant when he said, in her words, “You’re not going to like what I’m going to do next.” She also acknowledged that she made “insensitive statements about race”:
I want to apologize to Chris Cooper for my actions when I encountered him in Central Park yesterday. I reacted emotionally and made false assumptions about his intentions when, in fact, I was the one who was acting inappropriately by not having my dog on a leash. When Chris began offering treats to my dog and confronted me in an area where there was no one else nearby and said, “You’re not going to like what I’m going to do next,” I assumed we were being threatened when all he had intended to do was record our encounter on his phone. He had every right to request that I leash my dog in an area where it was required. I am well aware of the pain that misassumptions and insensitive statements about race cause and would never have imagined that I would be involved in the type of incident that occurred with Chris. I hope that a few mortifying seconds in a lifetime of forty years will not define me in his eyes and that he will accept my sincere apology.
Christian Cooper said that he believed her apology was “sincere.” Despite that, Amy Cooper’s employer, Franklin Templeton, quickly fired her, apparently agreeing publicly that what she did was racist: “Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton.”
Amy Cooper maintained that she didn’t know what “you’re not going to like it” meant.
“I didn’t know what that meant. When you’re alone in a wooded area, that’s absolutely terrifying, right?” she asked.
All told, Smith concluded that the way this incident was covered and spoken about was the 2.0 version of the Covington Catholic incident and, therefore, Cooper should particularly consider suing Franklin for rendering her unemployable henceforth by branding her as a racist:
Franklin Templeton is a deep-pocketed firm that publicly damned Ms. Cooper as obviously a racist after taking very little time to weigh the facts, in a post that has generated hundreds of thousands of likes. This was tantamount to announcing that any other firm that might be interested in employing Ms. Cooper in the future was a haven for racism. What is she supposed to do with her life now? If I were Ms. Cooper, I would be focused on one potential source of income only: Suing my former employer for its libel and demanding a hefty sum.
Most others have argued that the video clearly showed Amy Cooper calling 911 on a black man and pretending that she was in danger when she was not.
What Lawyers Are Saying
Law&Crime asked attorney Robert Barnes for his take. Barnes, who has previously written columns for Law&Crime, is also one of the lawyers who represented Covington Catholic students in a defamation lawsuit against various public and media figures. He said that he thinks Amy Cooper does have a case against her former employer and others.
“Sixty seconds of panic in a park in response to a stranger saying he is about to do something to a woman alone in the park that ‘you won’t like’ cost a lady her job, her public reputation, and her livelihood, even after she apologized for her reaction. Her employer promised to conduct a fair investigation, then publicly rushed to join the reputational lynch mob of their own employee,” Barnes said. “Amy Cooper enjoys potential legal claims against her employer for defamation because they gave the world the impression they conducted an impartial investigation that led them to conclude her motivations were malevolent racism within the employment setting when they conducted no such investigation and no such information would support such a conclusion.”
“Amy Cooper also enjoys potential legal claims against members of the public and press when they make false factual allegations against her, such as allegations she lied to police and similar false statements, and those defendants may be held to a negligence standard of liability, given a court may find she is a private person, not a public figure,” he added.
Law&Crime’s Elura Nanos, who argued on Tuesday morning that a misdemeanor false report case could actually be made against Amy Cooper, predicted that a defamation case wouldn’t go anywhere because Franklin Templeton’s statement constituted an opinion, not a false statement purporting to be fact.
“I do understand and agree with the larger point that sometimes, even videos need context to understand the fuller context of what happened. With this particular incident, however, the video was posted along with a moment-by-moment dialogue and from what I can tell from Amy’s over-the-top press release, the details weren’t factually misrepresented in any way,” Nanos said. “To date, I’ve seen no claim — even by Amy — who sent out a lengthy press release — that indicates that any one got the details of the story wrong. Simply saying ‘I’m NOT a racist’ when you’ve done something that the world considers racist won’t work to support a defamation or other tort claim.”
“Broadly, I do think that there are times when a person could sue an employer in tort for an oblique reference that doesn’t specifically name them — but I see no such grounds here. Even if Franklin Templeton had said ‘we think Amy is a racist’ — that would clearly be their opinion, and not the kind of statement of fact that could give rise to a successful defamation claim,” she continued.
Nanos said that this case is “no different from literally every other news story in the world.”
“People can communicate their opinions based on what’s in the public domain. Statements that go beyond what’s there have potential to be actionable, but only if they are demonstrably false and cause financial harm. And in the case of news media — only after the opportunity for a retraction wasn’t used,” she said. “My read of media commentary is that it’s being done in good faith, using the info available widely. Commentary, analysis, conjecture, opinion — none of this is actionable. If someone misstated the facts in any meaningful way, that would be a different story, but I’ve seen no such misstatements here.”
Christy Hull Eikhoff is a partner at the Alston & Bird law firm and a defamation expert. She told Law&Crime that although the Covington and Amy Cooper cases do have some similarities, characterizations of Cooper as racist would fall under “subjective opinion.”
“They are obviously similar in that they involved viral videos of individuals who were (at least before the videos) private figures. But any defamation claims coming out of the ensuing publicity would be different, particularly to the extent that the alleged defamatory statements would be any characterizations of Ms. Cooper as ‘racist,'” Eikhoff said. “That descriptive term falls into the category of subjective opinion that is not capable of being proven to be true or false – in other words, what is “racism” can depend on the eye of the beholder. For that reason, the First Amendment and U.S. defamation jurisprudence don’t allow for defamation claims to proceed on those types of allegations.”
Eikhoff also made a critical observation about the types of claims that survived in the Covington Catholic case(s) against the media.
“Note that the Covington Catholic/Nathan Phillips case survived only to the extent that it was about factual statements as to whether the plaintiff physically ‘blocked’ another person or ‘would not allow him to retreat,'” she noted. “None of the claims about ascribing certain political or character traits to the plaintiff made it past the motion to dismiss.”
[Image via Twitter screengrab]
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