In Cousins v. Goodier, 272, 2021 (Del. August 16, 2022), the plaintiff was a partner at a prominent Delaware law firm who filed a pro se complaint against a Pennsylvania school district over the retirement of the school’s mascot. After the plaintiff filed suit, the defendant sent an email to the plaintiff’s employer stating that the plaintiff’s pro se suit was “shockingly racist” and “tone deaf,” lamenting that tax dollars would now have to be spent countering the plaintiff’s “shockingly racist statements,” and stating that the suit reflected poorly on the firm. Subsequently, the President of the law firm demanded the plaintiff’s resignation, and the plaintiff resigned. 

The plaintiff then sued the defendant for tortiously interfering with his employment agreement, defaming him with her email, and conspiring with unnamed defendants to injure him. The Superior Court dismissed the complaint on the defendant’s 12(b)(6) motion after finding that the defendant’s statements in the email were protected by the First Amendment. The plaintiff appealed. 

Email addressed a matter of public concern

When the statements that are challenged as defamatory address matters of public concern, the plaintiff must prove falsity, as well as fault, before recovering damages. The plaintiff argued that the defendant’s concerns were private in nature. The Supreme Court of Delaware disagreed and found that the defendant’s email clearly addressed a matter of public concern to the community. The Court explained that the use of mascots and symbols that use American Indian iconography is controversial and has been for decades. 

The Court also rejected the plaintiff’s argument that the defendant’s speech was private in nature because she only sent the email to the plaintiff’s employer and her only motivation was to harm the plaintiff. The Court explained that the defendant’s statements were widely posted on Facebook, and the controversy would be of interest to members of the Delaware legal community in that it involved a Delaware lawyer and a nearby town. Additionally, speech that is communicated privately can still address a matter of public concern. 

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The statements could not be proven true or false and did not imply that they were supported by undisclosed defamatory facts

Statements on matters of public concern are actionable in defamation when, even if presented as opinion, they may be reasonably construed as stating or implying provably false defamatory facts about an individual. In this case, the defamatory statements turned on the defendant’s view of what was racist and were not provably false. The Court noted that Americans disagree about what is racist and the defendant’s statements could not reasonably be interpreted as stating actual facts. 

The plaintiff argued that the defendant’s email made a defamatory implication about the plaintiff when she stated that a review of the plaintiff’s lawsuit would reveal that it contained “shockingly racist statements.” The plaintiff argued that this implication was actionable because the email did not include the lawsuit and thus left the law firm partners to speculate about what statements the plaintiff made. 

The Court rejected this argument, noting that the essential fact upon which the defendant based her accusations was disclosed to the readers of the email via a link to a newspaper article that discussed the lawsuit. Furthermore, the readers of the email were sophisticated lawyers who knew how to find the lawsuit. 

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A tortious interference claim that is based on statements that are protected by the First Amendment fails

The Court explained that when a tortious interference claim is based on statements that are protected by the First Amendment, and no other improper conduct is alleged, the tortious interference claim must fail. The defendant’s statements were not fraudulent, misleading, or commercial, nor were they actionable in defamation. Because the plaintiff’s tortious interference claim focused exclusively on the defendant’s protected speech and no other conduct, it failed. 

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Disposition

The Court affirmed the judgment of the Superior Court dismissing the plaintiff’s complaint.