A $225,000 jury award to a Vietnamese refugee in Washington state sends a clear message that First Amendment protections for political speech may not apply to statements accusing Vietnamese-Americans of communist sympathies.

Duc Tan, a board member of a refugee support group, fled communist Vietnam in a fishing boat after serving in the South Vietnamese Army. The defamation case he filed against five other Vietnamese-Americans for labeling him as a communist was similar to one dismissed by a California appeals court in 2001.

“Charges of communism are part of the heat of the political kitchen,” the court said in Lam v. Ngo, 91 Cal.App.4th 832, citing a U.S. Supreme Court ruling which protects “rhetorical hyperbole” that cannot “reasonably [be] interpreted as stating actual facts” about an individual.

But the stigma of being called a communist is still very real in the Vietnamese-American community –- as a Thurston County (Wash.) Superior Court jury acknowledged earlier this month by awarding $225,000 to Tan and another $85,000 to his organization, the Vietnamese Community of Thurston County (VCTC).

“I hope this sets a new precedent so that others who might be tempted to wrongfully call  someone a communist will think more carefully,” Tan told The Olympian newspaper.

The defendants all belonged to a group calling itself Committee Against Viet Cong Flag. In an August 2003 e-mail letter sent to Vietnamese communities, they denounced VCTC  -- or the “Duc Tan gang” -- for “hid[ing] under the Nationalist coat to serve the common enemy of the Vietnamese refugees that is the Communist Hanoi.”

Among other things, the e-mail letter said VCTC covertly displayed the communist Vietnamese flag at a fair in Olympia by having a cook in its booth wear an apron adorned with yellow stars on a red background.

“[B]ecause of the unique cultural and historical factors shaping the lives and opinions of those in the Vietnamese-American community, to be labeled a 'communist' is an extremely odious charge,” Tan said in his complaint.

Defense attorney Nigel S. Malden said his clients were exercising their free speech rights. “That is what makes us so different from any communist regime,” he told the jury during a three-week trial.

A similar argument helped the defense prevail in Lam, which involved the picketing of a Vietnamese restaurant owned by a Garden Grove, Calif., city councilman. Protesters carried signs decrying Tony Lam as a communist and a life-size effigy of him tied to a gallows next to a life-sized effigy of Ho Chi Minh.

“[Those] who have actually lived under a Communist regime ... are in a better position to appreciate First Amendment freedoms than some of us who have not lived in a totalitarian country,” the California 4th District Court of Appeal noted in dismissing the case on free-speech grounds.

But in 2007, the Minnesota Court of Appeals upheld a $350,000 jury award to a Vietnamese-American store owner who was smeared as a “Communist lackey.” And earlier this month, the same 4th District distinguished Lam in ruling that a school administrator could sue another Vietnamese-American for calling her a communist.

“Simply put, defendant’s accusation, in context, implied plaintiff maintained definite, meaningful, and personal ties — perhaps social, familial, political, or ideological — with communist Vietnam sufficient to brand her a 'Communist,'” the court said in Nguyen-Lam v. Cao.

The chances of a reversal of the award in Tan's case may depend on whether an appeals court takes a similar view of the context of the defendants' accusation.

By Matthew Heller
4/27/09