Don Imus lost his job at CBS Radio for describing the Rutgers University women's basketball team as “nappy-headed hos,” but the shock jock appears to have a slam-dunk defense to the slander suit of one of the players.

Kia Vaughn alleges in a Bronx Supreme Court complaint filed last week that the word “ho” is commonly interpreted to mean “whore” and that it “was used, spoken and intended by the defendants to impute sexual unchastity, promiscuity and/or debauchery to the plaintiff.”

“Don Imus referred to my client as an unchaste woman,” Vaughn attorney Richard Ancowitz said. “That was and is a lie.”

But unless Imus decides to settle the case to avoid any further adverse publicity, he can surely win a speedy dismissal by arguing that his statement was not factual and therefore does not meet the legal standard for defamation.

Under New York law, a defamation claim fails if “either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.” Brian v. Richardson, 660 N.E.2d 1126 (1995).

A federal judge in Manhattan applied that test last week in dismissing a slander case against a New York City councilman who called the disc jockey known as Star a “sick racist pedophile.” Councilman John Liu was responding to Star's comments about the young daughter of a rival DJ.

“[C]onsidering the over-all context and the circumstances in which defendant’s statements were made, no reasonable person would have believed that defendant was conveying a fact about plaintiff —- i.e., that plaintiff was engaging in acts of pedophilia -— rather than defendant’s opinion,” U.S. District Judge George B. Daniels said in his decision.

Imus, similarly, used hyperbole as part of a comparison of the physical appearance of the Rutgers team with that of its opponent in the final of the NCAA women's tournament.

“That's some rough girls from Rutgers,” Imus mused. “Man, they got tattoos and ...”

“Some hard-core hos,” interrupted producer Bernard McGuirk.

“That's some nappy-headed hos there,” Imus continued. “... And the girls from Tennessee, they all look cute, you know.”

There is nothing in Imus's comments, moreover, to suggest to a reasonable listener that he was accusing any of the players of being a whore “based on some undisclosed information known only to him.”

In a precedent that could hardly be more on point, the New York Appellate Division in 1999 said a woman whom Imus called, among other things, a “skank” while making fun of her on the air could not sue him for slander.

"When considered in the context of the ribald radio 'shock talk' show in which they were made,” the court said in Hobbs v. Imus, 698 N.Y.S.2d 25 (1999),

it is clear that the complained of statements would not have been taken by reasonable listeners as factual pronouncements but simply as instances in which the defendant radio hosts had expressed their views over the air in the crude and hyperbolic manner that has, over the years, become their verbal stock in trade.

By Matthew Heller
8/20/07