When Juliet, in William Shakespeare’s play Romeo and Juliet said, “what's in a name? That which we call a rose by any other name would smell as sweet,” she surely was not talking about the “names” that San Francisco television station KTVU read on air when discussing the pilots of the Asiana Airlines flight that crashed, killing three students.
An anchor for the station, apparently unaware that the station was being pranked—and apparently not drawing the obvious conclusion herself--read aloud fake, racially insensitive names, which purportedly had been confirmed by an intern with the National Transportation Safety Board, of the pilots of the airplane that broke apart after landing in San Francisco.
The fake names read on air included ethnically insulting phrases such as “Wi Tu Lo” and “Sum Ting Wong.” The station has apologized for the incident, but Asiana Airlines has announced it is considering a lawsuit for defamation, claiming its reputation has been damaged by the blunder.
The Associated Press quoted an airline spokeswoman as saying the airline would sue KTVU to "strongly respond to its racially discriminatory report," but that it would not sue the NTSB.
And so arises the legal matter: Can Asiana Airlines win a defamation claim?
While the First Amendment guarantees the right to freedom of speech and the press, there are certain forms of speech that have no First Amendment protection.
That is, the First Amendment does not grant any person the right to say anything he wants, anytime he feels like it.
Defamation, which is the making of a false statement of fact that damages someone’s reputation, is a form of speech that is not granted First Amendment protection.
In order for a person to prove that he was defamed, the person has to show that someone published (or broadcast) a false statement of fact that harmed his reputation or ability to earn a living.
In the Asiana Airlines case, there is no question that a false statement of fact was broadcast.
But the issue here is how Asiana Airlines, the owner of an airplane that, while carrying more than 300 people crashed in San Francisco killing three students, could possibly show that what was likely an immature prank read by an unsuspecting anchor caused damage to the company’s reputation?
As Shakespeare might say about Asiana’s threat of a lawsuit for the damage: The lady doth protest too much, methinks.
Editor’s note: Feldman’s analysis is similar in context to an opinion piece called “Asiana Airlines’ idiotic lawsuit threat,” from the Washington Post’s Erik Wemple, which also questions the airline’s legal strategy (in slightly stronger terms).
Do you agree with Feldman and Wemple about the basis of Asiana Airlines’ potential lawsuit? We’d like to hear your opinions below.
Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.