Supreme Court reinstates jury award for Olympia man falsely accused of being a "communist"

Staff writerMay 9, 2013 

Duc Hua embraces a well-wisher as Duc Tan stands to his left after Tan won his defamation lawsuit in Thurston County Superior Court before Judge Thomas McPhee. At the far right is Thanh Tan, daughter of the plaintiff. Steve Bloom/The Olympian.

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 reserved 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 e-mail. 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.”

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.

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. She said that as a child, she learned to sing the South Vietnamese national anthem, and was taught that the true flag of Vietnam is the yellow flag with three red stripes, not the communist flag recognized internationally today.

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

In its published opinion, the state Supreme Court notes defendant Le’s “tense” relationship with Tan dates back to 1997. The state Supreme Court also notes that in the 2009 defamation trial, the jury was properly instructed on what was necessary to prove “actual malice.” The opinion noted that “actual malice” could be inferred by the circumstantial evidence at trial, including the defendants’ following actions:

-- they made no attempt to contact Tan before publishing their public notices and newsletter articles.

-- they had previously worked with Tan organizing events to oppose communism.

-- they had witnessed Tan speak out publicly in favor of displaying the South Vietnamese flag.

-- they had a prior history of acrimony with Tan.

-- they failed to investigate any of the facts before publication.

“(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.”

Tacoma attorney Nigel Malden, who represented Le in the original defamation trial, said Thursday that “various options are being considered, including filing a request for discretionary review with the U.S. Supreme Court.” Malden noted that although the U.S. Supreme Court only accepts discretionary review of a small number of cases every year, it “has often shown special interest in free speech cases.”

Malden added that he was disappointed by the state Supreme Court’s opinion. “It’s a dark day for anyone who believes in the First Amendment and the constitutional right to free speech,” he said.

Tan’s attorney, Greg Rhodes, could not be reached for comment Thursday.

Jeremy Pawloski: 360-754-5445 jpawloski@theolympian.com

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