Nativo Lopez Cries 'Racist,' Appeals Court Cries 'Defamation'

[Moxley Confidential] Split decision in Overhill Farms case has chilling free-speech implications, dissenting justice asserts

“The only difference,” he said, “was that the new employees provided valid Social Security numbers.”

Overhill Farms filed a lawsuit against Lopez and the protesters claiming defamation and intentional interference with business. But citing Lopez’s recent bankruptcy and pending criminal charges in an unrelated voter-fraud case, the company primarily sought a court-ordered injunction that prohibits future—and, what its officials would say are similarly dishonest—protests.

After a November 2009 hearing, Superior Court Judge Robert J. Moss granted most of the company’s wishes. Lopez appealed, claiming that the U.S. Constitution grants him “absolute” First Amendment protection to publicly utter his opinion that Overhill Farms is racist.

Laila Derakhshanian

In a 28-page ruling issued this month, an all-Republican appellate court led by justices William Bedsworth and William Rylaarsdam rejected Lopez’s contention, arguing that he’d made his “racist firing claim sound far more credible than it actually is” by giving the public “materially incomplete and misleading” information.

The third justice on the panel, Richard D. Fybel, dissented.

“My colleagues in the majority have incorrectly made this court the first state or federal appellate court in America, ever, to hold that the epithet ‘racist’ constitutes a provably false assertion of fact as the basis of a claim of defamation,” wrote Fybel. “The employees’ claims might not be persuasive . . . that does not make them defamatory.”

Fybel suggested the First Amendment had been weakened: “To illustrate this point, would it be actionable if the Los Angeles Times, the Orange County Register, Fox News or MSNBC complained that the actions by anyone were ‘racist’ or ‘discriminatory’? Of course not. Employees complaining about their employer enjoy the same protection.”

Carol Sobel, Lopez’s attorney, agrees, observing, “You don’t like to be told you are a fascist or a racist or a sexist, but those are statements of opinion . . . This case is an attempt by a large corporation to silence a small group of former employees and their advocate.”

A version of this story first appeared on the Weekly’s Navel Gazing blog.

This article appeared in print as "Crying ‘Racist’:  What Nativo Lopez calls free speech, an appeals court calls defamation."

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