"Liberace is the summit of sex; the pinnacle of masculine, feminine and neuter; everything that he, she or it can ever want; a winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavored, mincing, ice-covered heap of mother-love."
Rare is it that defamatory words play out like prose or poetry. And regardless of the literary or phonetic merit of the above words, a 1959 New York jury found that the pianist Wladziu Valentino Liberace (1919–1987) had thus been defamed as implying homosexuality.
The law of defamation is a fascinating area of the law as it surfs on the aggressive waves of human emotions. And it has escaped the codifiers and left essentially in the creative hands of judges.
As well, the law changes with the times.
As Justice Holmes said in Towne v Eisener (admittedly not a defamation case):
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used."
Contrary to 1800s, it is no longer automatically slanderous to call a person a witch, a papist or that someone is divorced.
Even son of a bitch seems non-actionable and to those with erectile dysfunction, being called a fornicator may be taken as a compliment!
Leaving the law in the hands of judges is usually a recipe for disaster but, politics aside, it also is a ripe breeding ground for wild and wacky court cases. A word of caution: nothing in this webpage is intended to reduce or detract from the unfettered right of baseball, football, basketball or ice hockey players to engage in trash talk provided only that said trash talk is not such that it would offend right-minded people, wherever such aliens may reside.
Sooner or later, we all face an insult. As William Shakespeare wrote in Hamlet:
"Be thou as chaste as ice, as pure as snow; thou shalt not escape calumny."
Here we give you the creme de la creme hoping in the process to leave you completely bewildered as to the state of the law when it comes to insults and defamation. That is no accident: that is ... well ... the state of the law!
Illiterate Half-Baked Crank
In the quaint little Ontario town of Berlin (now Kitchener), circa 1892, there appeared an editorial that described the actions of city councillor C.F. Brown as "mean and dishonest" and of an "illiterate half-baked crank". In half-baked decisions, one judge found "illiterate" and "crank" to be libellous but not "half-baked". On June 21, 1893, the Ontario Court of Appeal ordered a new trial but since there had already been three hearings all very profitable to the lawyers involved, added:
"I hope that time has now cooled the feelings of the parties and that both will agree to drop a law suit that can never be profitable to either of them."
Four hundred years ago, Mr. Vaughn sued Mr. Ellis because the latter called him a bastard. In those days, in England, the word had considerable legal use as to inheritance rights; bastards were not on the same level as those born to parents in wedlock. The first English judge rejected the claim saying that Vaughn was not "damnified" by being called a bastard. But on appeal, the two other judges held that to call another a bastard was "actionable".
A carpenter from Smithfield, Ontario was called, at a public meeting, a cheap bastard. Well, he was actually also called an arsonist as the complete tirade was:
"You are a Jew. There are two kinds of Jews, a white one and a black one. You are a cheap bastard. You don't need to think you can move in here and start running the Village. You moved in here and had a convenient fire."
The defendant said he was only kidding, prompting the judge to remind him of that old Irish case of Donoghue v. Hayes:
"If a man in jest conveys a serious imputation, he jests at his peril."
But, said Justice Mackay, cheap bastard was fine:
"The expression cheap bastard was nothing other than a term of abuse. No action will lie in the absence of special damage for calling a man a hypocrite, a rogue or rascal, a cheat, a cad, a bastard, a bankrupt, a swindler, a crook, a villain, a liar and fraud, or a blackleg or gambler."
What is it with Canadians that they have all the fun? In this yet-another Canadian defamation case, one neighbour (Metro Rachinski), in a dispute over a small barking dog, much like my grand-father's annoying chihuahua, called out his Smith Place, Saskatoon neighbour Tony Skamar as follows:
"You can't talk to a retarded person. You have more holes up there than are in the fence. You belong on the 5th floor. You walk like an eighty or ninety-year old man. Tony, you're a thief. I'll report you to the CN for stealing all those railway ties."
Justice Baynton of Saskatchewan's Court of Queen's bench found that although offensive, Metro Rachinski hadn't said anything actionable until he got to "thief". But all Tony Skomar got was $2,500; a pittance compared to his legal bill, no doubt.
Pardon the language, but in one very recent case, the lovely defendant Patrick Michael Sullivan, suggested that Mr. Griffin was a, well, here it come: sick fuck.
Sullivan didn't stop there. From a keyboard safely half-a-world away from the Australian plaintiff, Mr. Griffin, Mr. Sullivan, based in Nanaimo, posted that Griffin was a sexual predator/pervert and a pedophile.
Justice Halfyard of the British Columbia Supreme Court was not impressed and ordered Sullivan to pay Griffin $179,644.50 in damages, one of the largest awards ever for Internet defamation, calling the libel:
"... numerous, monstrous, outrageous and so extreme that it is difficult to find case precedents that come anywhere close".
- Brown v Moyer, 23 OR 222 (appealed at 20 OAR 509 (1893)
- Conkey v Thompson, 6 UCCP 238 (1857)
- Donoghue v. Hayes, 1831 Hayes 265
- Duhaime, Lloyd, Defamation Law
- Duhaime, Lloyd, Legal Definition of Son Of A Bitch
- Griffin v Sullivan, 2008 BCSC 827
- Hyde, Their Good Names (1970), page 348 or The Times, 16-JUN-1959.
- Lever v George, 1950 OR 115 or 2 DLR 85
- Skomar v Rachinski, 88 Saskatchewan Reports 177 (1990)
- Towne v Eisener, 245 US 418 (1918)
- Vaughn v Ellis , 79 ER 185 (1609)
- Wood v Branson, 3 SALR 369 (1952)