Rapper Kanye “Ye” West’s comments about George Floyd may have been “idiotic” and false, but the murdered man’s family faces a more than steep challenge in suing for defamation, a first amendment expert and lawyer says.
Speaking in a new episode of Law&Crime’s Sidebar podcast, George Freeman drew a hard distinction between the likely strength of legal and public relations consequences after Ye asserted Floyd died of a fentanyl overdose and separately made antisemitic remarks. For example, Law&Crime host Jesse Weber asked Freeman it would help West to retract his statements.
“As a legal matter, it’s not going to matter,” said Freeman, executive director of the Media Law Resource Center and former assistant general counsel of The New York Times Company. “But I think the legal case against him is actually fairly weak. I think the PR case against him is very strong. I mean, what he said is idiotic. It’s heinous. It’s harmful. It’s untrue. It doesn’t make any sense. That being said, you can’t just sue for every statement like that [the fentanyl statement] or the courts would be filled with people suing for insults against them. ”
“We live in a society here in America where you’re allowed to say these things, and we hope that the marketplace will even things out somewhat as seems to be happening in this case. So in a sense, the marketplace is working because of all the things you mentioned,” Freeman continued. “He’s been deplatformed. His agency is leaving him now. His lawyer is leaving him. Hopefully, his fans might even leave him. But that’s what we look to to remedy stupid speech, harmful speech. Not so much lawsuits.”
Freeman said there was another obvious legal hurdle to overcome.
“[B]asically, dead people don’t have a right to sue,” the lawyer said.
“And since the person is dead, [Floyd] doesn’t know anything about what people are saying about him,” Freeman continued. “So he’s not harmed by it because he’s dead, and so case closed. There’s no defamation case.”
Attorneys for Roxie Washington, the mother of Floyd’s daughter, announced they might sue West for “harassment, misappropriation, defamation, and infliction of emotional distress.” The damage amount would be $250 million.
Weber asked Freeman about potential non-defamation claims. What came to mind as a substitute were claims of intentional infliction of emotional distress, Freeman said. He indicated this approach was difficult but more within the realm of possibility.
“That’s not the easiest case to make,” he said. “It has to really be something that I think is heinous to civilized societies. So it’s a very kind of harsh step, or anyone could sue for emotional distress at the slightest provocation.”
It’s not a slam dunk case, Freemdan said, “But it seems to me it’s in the ballpark.”
Plaintiff law firm Witherspoon Law Group construed West’s statement, made on a podcast Drink Champs, as an attempt to “promote his brands, and increase marketing value and revenue for himself, his business partners, and associates. During the podcast interview, Kanye West stated malicious falsehoods about George Floyd to profit from Mr. Floyd’s horrendous death and his family’s trauma.”
“As you can expect, our clients are very distressed and hurt by the allegations you made,” attorney Kay Harper Williams wrote to West in a cease and desist letter. “Mr. Floyd’s cause of death is well-settled through evidence presented in courts of law during the criminal and civil trials that were the result of his untimely and horrific death. Nevertheless, you have maliciously made statements that are inaccurate and unfounded, causing damage to Mr. Floyd’s estate and his family.”
In April 2021, jurors convicted fired Minneapolis police officer Derek Chauvin of second-degree unintentional murder in Floyd’s death. Nearly a year earlier, Chauvin was caught on video with his knee on Floyd’s neck for several minutes while the latter was prone with his hands cuffed behind his back and dying. The defense brought up expert witness testimony that Floyd had sudden cardiac arrhythmia [abnormal beating of the heart] and heart disease.
“Significant contributory conditions included fentanyl and methamphetamine in his system, and exposure to carbon monoxide from vehicle exhaust, and paraganglioma [a tumor],” said Dr. David Fowler, the former Chief Medical Examiner of Maryland whose past work is under investigation.
But the state’s experts argued differently. Dr. Jonathan Rich, a cardiologist, testified that Floyd died neither of a “cardiac event” nor of a drug overdose.
Dr. Andrew Baker, who performed the autopsy of Floyd, said being held prone to the ground and handcuffed behind his back was too much for Floyd to take. Though the drug can hinder respiration, that would occur through the brain, the expert witness said. During redirect, Baker said that people go into a coma before they die of fentanyl, and Floyd was not in a coma.
[Image via Brad Barket/Getty Images for Fast Company]
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