Saturday Night Live comedian Alec Baldwin engaged in a shoving match with Wojciech Cieszkowski over a mid-town New York parking space. The result was not a laughing matter. Baldwin was criminally charged and pled guilty to harassment in the second degree.
But that was only the beginning. Cieszkowski sued Baldwin for assault, battery, legal fees and slander per se. In addressing a motion to dismiss the slander claim, the Court took a jurisprudential “deep dive” into the law of defamation, slander ( in general) and slander per se (in particular).
Cieszkowski alleged that he was verbally and physically assaulted by the actor Alec Baldwin over a parking space. According to Cieszkowski, after he parked his car in a public space on the street, Baldwin approached him, shouted at him and accused him of stealing his parking spot. Cieszkowski walked toward the muni-meter and Baldwin followed him and continued to yell at him. When approaching the meter, Baldwin shoved Cieszkowski in the chest and then struck him in the left jaw.
As a result of the incident, the Manhattan District Attorney’s Office charged Baldwin with attempted assault in the third degree and harassment in the second degree. On January 23, 2019, Baldwin pleaded guilty to harassment in the second degree.
Following his plea, Baldwin appeared on several talk shows and discussed the incident. Specifically, on February 4, 2019, Baldwin appeared on “The Ellen Show” and said: “Did I have an argument with the guy? Yeah. I thought he was going to run my wife over with his car when he was stealing my parking spot.”
On March 27, 2019, Baldwin appeared on “The Howard Stern Show” and said: “[W]hen he aggressively takes this parking space, which was not the end of the world, I think he was going to hit my wife and my son… I thought what he did was impolite, bordering on dangerous. He didn’t walk up to me and say, `Excuse me. I’ve been waiting here. I’d like to take this space.’ He just went zip! — really fast, and really aggressive.”
Cieszkowski sued Baldwin and alleged four causes of action (1) assault; (2) battery; (3) attorneys’ fees and costs; and (4) slander per se. Baldwin’s moved to dismiss the fourth cause of action for slander per se.
Defamation is the making of a false statement about a person that tends to expose the person to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him or her in the minds of right-thinking persons, and deprive him or her of their friendly intercourse in society. The elements are a (1) false statement, (2) published without privilege or authorization to a third party, (3) constituting fault as judged by, at a minimum, a negligence standard, and (4) which cause special harm or constituted defamation per se.
The falsity of a published statement is key to a defamation claim because only a statement that purports to convey facts about the person is actionable. Therefore, opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinions are set forth. A statement of “pure opinion,” which is supported by the facts upon which the statement is based, is protected, no matter how vituperative or unreasonable it may be. Rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression, imprecise language and an unusual setting that signal to the reasonable observer that no actual facts were being conveyed about an individual are not actionable.
Factors to be considered in determining whether a statement constitutes fact or nonactionable opinion are:
(1) whether the specific language had a precise meaning which was readily understood; (2) whether the statements were capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appeared or the broader social context and surrounding circumstances were such as to signal readers or listeners that what was being read or heard was likely to be opinion, not fact.
A viable slander claim requires allegations of special damages, i.e., economic or pecuniary loss unless the claim is slander per se. Slander per se is one where the alleged false statement (1) charges the person with a serious crime; (2) tends to injure the person in his or her trade, business or profession; (3) imputes to the person a loathsome disease; or (4) imputes unchastity to a woman. Not every charge of unlawful behavior, however, is slanderous per se. There are many minor offenses that have a criminal element but do not constitute a serious crime.
Cieszkowski argued that the two statements on the “Ellen” and “Howard Stern” shows were slanderous per se. Specifically, the statements made by Baldwin that “I thought he was going to run my wife over with his car when he was stealing my parking spot” and “I think he was going to hit my wife and my son … He just went zip! — really fast, and really aggressive” imputed to Cieszkowski a serious crime—specifically reckless endangerment.
As to statements charging a serious crime, the law distinguishes between serious and relatively minor offenses, and only statements regarding the former are actionable without proof of damage. Although there is no precise definition of “serious crime,” Courts have provided guidance as to the type of crimes that would be serious, which include murder, burglary, larceny, arson, rape, and kidnapping. The appellate precedent- emphasized that the crimes must be those of a very serious nature and not of a minor nature. Even putting aside that traffic violations do not constitute a serious crime in the slander per se context, crimes of a very serious nature means crimes that would exclude a person from society.
Baldwin’s statements that Cieszkowski allegedly drove fast and aggressively did not rise to that level. They constituted everyday words used to describe driving by the public. The crimes that have been found to constitute serious crimes for slander per se purposes have at least a general intent to do harm or demonstrate depravity. Nothing in Baldwin’s statements indicated anything rising to such a level. Accordingly, Cieszkowski did not allege that Baldwin had committed a serious crime for slander per se purposes.
In addition, Baldwin’s use of the words “really fast,” “aggressive,” “zip” and “almost hit/run over my wife and child” were hyperbole. There was no precise meaning to these statements, they were rhetorical illustrations. Cieszkowski was correct that simply putting the words “I thought” before a statement does not convert a statement from fact to opinion. But a review of the videos and the transcripts of the two shows demonstrated that Baldwin was describing his impressions, his state of mind, and his thought process during the occurrence. Baldwin was describing his own opinion of what he saw. No action for defamation under a slander per se theory was stated.
Cieszkowski asserted that the words used by Baldwin were understood as accusing Cieszkowski of recklessness. The word reckless or something similar was not contained in the statements. In fact, Baldwin described the situation as “I thought what he did was impolite, bordering on dangerous.” Being impolite is not accusing someone of recklessness, and, at most, the statements accused Cieszkowski of something not “dangerous” but merely “bordering on dangerous.” A properly pleaded complaint about slander per se required either a specific crime alleged or a crime that was readily apparent from innuendo.
The Court would not strain to find a defamatory interpretation where none existed. Here, the words stated by Baldwin were not words that accused Cieszkowski of a specific crime or ones that were easily understood to accuse of a crime. They were words of frustration with someone’s driving and, while the words did not necessarily appear favorable to Cieszkowski, taking into account their natural meaning, and under all of the circumstances, none of them were such as would expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of Cieszkowski in the minds of a substantial number of the community.
Motion to dismiss claim of slander per se was granted.