$310,000 jury award reinstated for man called “communist”

The Washington Supreme Court reversed a state Court of Appeals ruling Thursday, reinstating a $310,000 jury award to a Vietnamese-American in Olympia who sued five fellow Vietnamese-Americans for defaming him by calling him a communist.

Duc Tan had sued the group in 2004, alleging that claims made by the defendants in a public notice published online and in articles published in the local Vietnamese-American media starting in 2003 were defamatory.

In 2009, a jury awarded Tan $225,000, and $85,000 to his organization, the Vietnamese Community of Thurston County, after it found the defendants’ speech to be defamatory. The trial was held in Olympia before now-retired Thurston County Superior Court Judge Thomas McPhee.

The state Court of Appeals had reversed the jury’s verdict and remanded the case for dismissal, concluding that “the right to call someone a communist is protected by the First Amendment,” according to the Supreme Court’s history of the case, as published in its opinion on Thursday. The Appeals Court also concluded that because the defendants subjectively believed the truth of their allegations, the plaintiffs failed to prove “actual malice,” necessary in defamation cases.

The Supreme Court disagreed in its opinion published Thursday. Six justices were in the majority opinion, with one dissenting opinion. Three justices did not participate.

“We hold that the defamatory statements made by Norman Le and other authors were not protected opinion and therefore actionable,” reads the majority opinion. “We also hold that clear, cogent and convincing evidence supports the jury’s finding of actual malice with respect to those statements. We reverse the Court of Appeals and reinstate the jury’s verdict.”

Some of the allegedly defamatory statements cited by the Supreme Court were made by the defendants in a public notice that was published on the Internet and sent as a mass email. These statements include allegations that Tan “conducted activities on behalf of ‘evil communists,’” that he displayed the Viet Cong flag at his Vietnamese language school, and that he and his organization “planned community events on dates associated with the Viet Cong for the purpose of celebrating North Vietnam.”Tan’s daughter, Thanh Tan, a journalist, has said that the allegations against her father were particularly painful because communism is what he hates most.

Thanh Tan has said that among Vietnamese-Americans, calling someone a communist “incites hatred.”

The Supreme Court notes in its opinion that “the vast majority” of the defendants’ assertions about Tan “were made as statements of fact, not opinion.” The Supreme Court also notes that many of the opinion statements by the defendants “imply undisclosed defamatory fact or are otherwise provably false.”

“There is no First Amendment protection for the type of false, damaging statements uttered here; indeed the purpose of the law of defamation is to punish such statements,” reads the Supreme Court opinion.

Tan, who moved to Olympia with his family in 1979, fled communist Vietnam in 1978. Since then, he has been active in the local Vietnamese community. He is the principal member of a local Vietnamese language school, as well as a leader of the Vietnamese Community of Thurston County, or VCTC.

In the Vietnamese-American community, labeling someone as a communist is a “very easy way to discredit someone,” Linda Vo, chairwoman of the Department of Asian-American Studies at the University of California, Irvine, has said in a prior interview. Vo has said that labeling people as communists is an extremely effective means of damaging reputations in the community because many first-generation Vietnamese immigrants either were imprisoned or tortured by the communist government there, or know someone who was.

“(R)ather than temper their allegations to reflect their lack of investigation, defendants trumped up their charges, claiming ‘Duc Thuc Tan and gang ‘worship the communists,’ ‘poison our children’s minds,’ and have ‘continuously and systematically’ betrayed the Vietnamese community by working on behalf of the Viet Cong government,” reads the Supreme Court’s opinion. “Le even went further by referring to Tan’s organization as an ‘undercover agent’ for the communists. Defendants directed their publications to refugee communities still living in fear of communist plots to exert influence upon them, prepared to resort to violence if necessary to combat a perceived threat.”