Does the law recognize an asshole?
This thought came to me, as one could imagine, watching Donald Trump speak. As one writer put it, Trump is “a fool and an asshole” who “has become the middle finger of [his supporters] right hand.” But he’s far from alone, I’d say each of the remaining candidates, including the one I’ll be voting for, is an asshole in his or her own way, especially Ted Cruz, an eminently punchable weasel of a man who I’m convinced would literally murder a baby to win the California primary. I very much hate Ted Cruz.
Anyway, with the country soon to be led by some asshole or another, I was curious if I would be able to poke around and find some semblance of a legal concept of the term, if only in dry asides by a cheeky judge.
The term is a bit like Justice Potters’ pornography: we know it when we see it, but the dictionary definitions tend to be wanting (“an irritating or contemptible person,” “a stupid, incompetent, or detestable person”). A few years back, U.C. Irvine philosophy professor Aaron James wrote a fun book called Assholes: A Theory, zeroing his definition on the asshole’s sense of “ironclad entitlement.” Per a review of James’s book in New York Magazine, the asshole is:
[S]uperior, immune to your complaints, though he insists you listen to his. He’s reflective, but only to the extent that it allows him to morally justify his behavior. And though he ordinarily acts within the boundaries of the law and exacts a relatively small material toll on society (which distinguishes him from the sociopath), he nonetheless triggers feelings of powerlessness, fear, or rage in those who cross his path. Most important, he behaves like this systematically. He is terminally, incorrigibly, an asshole. . . . [A] person who enjoys "special advantages in interpersonal relations out of an entrenched sense of entitlement that immunizes him against the complaints of other people."
My first stab at the question, a simple word search to see if any courts had defined the term, was pretty much a failure. Only a handful of courts had tried, and in each case they referenced the Random House dictionary definition of an asshole as a “stupid, mean, or contemptible person.” See Robinson v. State, 588 N.E.2d 533 (Ct. App. Ind. 1992); Gilbert v. Daimler–Chrysler Corp., No. 227392 (Ct App. Mich.2002). This was, to put it mildly, disappointing. Who uses the Random House dictionary? Weak. And this definition doesn’t jibe with our concept of who an asshole is – there are plenty of stupid yet wonderful people in our great social tapestry.
The real barrier, indeed, soon became apparent. The most likely avenue for a court to confront the meaning the term “asshole” would be defamation case and, unfortunately, in such cases the term “asshole” falls into the category of opinion or rhetorical flourish, not a factual claim. Because there is no cause to determine whether someone was factually an “asshole,” there’s no cause to arrive at a definition.
Thus, in Greenhalgh v. Casey, 67 F.3d 299 (6th Cir. 1995), the court of appeals affirmed the district court’s grant of summary judgment against a plaintiff alleging the defendant had slandered him with the accusation of being a “lying asshole.” After noting that the plaintiff was in fact “given to falsehood,” the court added that the term “asshole” was “merely ‘rhetorical hyperbole’ which could not be interpreted reasonably to state an actual fact” – the defendant could not reasonably have been attempting to assert, as the plaintiff contended, the false allegation that “the Plaintiff's anus was making untruthful statements.” (Yes those were actual words written by an actual judge, which I find amazing.)
Other courts have agreed. In Meier v. Novak, 338 N.W.2d 631 (N.D. 1983), the court held that a plumber’s statement that his customer was an “asshole” was nonactionable, as the word itself “imputes no characteristic, habit, or condition which would fall within the definition of slander.” Meier cites to an Illinois appellate decision, McGuire v. Jankiewicz, 8 Ill.App.3d 319, 290 N.E.2d 675, (1972), which held there was no slander to tell a man “your lawyer is an ass hole” – not, as we would all expect, because such a statement is axiomatically true, but because the words “amount to mere epithets or ‘name-calling’ and do not impute a want of integrity or capacity in the legal profession,” and because “it is readily apparent that the statement ‘your lawyer is an ass hole’ is merely an example of objectionable but unactionable ‘name-calling’.” See also Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1 (Sup. Ct. App. Div. N.Y. 1999) (“The epithet used by Magnum could not reasonably have been construed to communicate actual facts, and thus evades defamation”); Spencer v. International Shoppes, Inc. 902 F.Supp.2d 287 (E.D.N.Y.) (“[A] reasonable listener would understand that the statement ‘you are an asshole—I should have sued your ass before’ conveyed an opinion rather than a fact.”).
Indeed, it seems that if there is any true slander here, it is the extent to which the courts have conspired to rob the term “asshole” of all import or meaning. To the courts, the term is simply a general expression of distaste rather than an insult with a specific purpose. And even as an insult, the courts have tended to find the term “asshole” to be mild. In Dillon, supra, the court noted that “[i]n this day and age the epithet, while hardly admirable, cannot reasonably be said to perpetrate so great a harm as that required for emotional distress.” In Cavazos v. State 455 N.E.2d 618 (Ct. App. Ind. 1983), the Indiana court of appeals went further, stating that “[t]here was a period of time in our cultural milieu when the epithet may well have been inherently inflammatory. However, that situation no longer exists. . . . Further, we cannot ignore this particular epithet's common appearance in both the written and spoken language of our contemporary society, and the resultant negation of its inflammatory nature.” (Though there is a bit of hypocrisy here -- in State v. Van Laarhoven, 90 Wis. 2d. 67, 279 N.W.2d 488 (Ct. App. Wis. 1979), the court of appeals held that a contempt sentence was justified where the defendant had called his judge an “asshole,” reasoning that “the court was attacked ‘in such a way that the personal feelings of (the) judge (could) reasonably be expected to have been affected.’” Is not what’s good for the goose also good for the gander?)
I wonder, though, if the situation might have been different had the term “asshole” reached prominence a little earlier in history. A Google NGrams search shows that the word "asshole" took flight in the 1960s and achieved orbit by the 1980s (appropriately). And if you travel back in time towards the turn of the 20th century, you find that society and the courts were much more prickly about general insults.
For example, in Loveland v. Hosmer, 8 How. Pr. 215 (Sup. Ct. NY 1853) the defendant libeled the plaintiff as a “scoundrel” and then argued the defense of absolute truth – that the plaintiff was, indeed, a scoundrel, pointing to the fact that the plaintiff had been indicted and arrested for fraud. The court rejected this defense; “Webster defines ‘scoundrel’ as follows: ‘A mean worthless fellow; a rascal; a low, petty villain; a man without honor or virtue.’ The libel designates the plaintiff as such a person, and it is no justification to say that he has been indicted and arrested for a conspiracy to cheat and defraud.” I find this incredible, the court saying as a matter of law that just because a guy has been indicted for fraud, that doesn't mean you can call him a scoundrel.
Similarly, in Danville Democrat Pub. Co. v. McClure, 86 Ill.App. 432 (1899), the court upheld a guilty verdict where a newspaper publisher was slandered as a practitioner of “sly chicanery, underhand methods,” and ““shameless skullduggery” -- attacks the court found to be “intemperate, malicious and wholly unjustified.”
In Jones v. Greely, 25 Fla. 629 (1889), the defendant libeled the plaintiff by asserting the “‘plaintiff is posing as a good man, when as a matter of fact his conduct has been and is the reverse of what is supposed to befit the character of a good man; and that he is pretending to be a philanthropist and benefactor of the poor, when in fact he has been a grasping and penurious Gradgrind, whose greed has inflicted untold sorrow upon the widow and orphan” – an assertion the trial court helpfully shorthanded to calling the plaintiff a “hypocrite.” The claim was sustained, in part, because regardless of whether the plaintiff had in fact “inflicted untold sorrow upon widows and orphans,” such infliction does not, necessarily, a "hypocrite" make.
My favorite, though, is Moley v. Barager, 77 Wis. 43 (1890), a sweet, one-paragraph opinion sustaining as libelous the claim that the plaintiff was an “egotistical and overestimated, selfconceited jackass.”
It's a shame, but it seems the word "asshole" just came of age too late. Society has become too vulgar for the courts to care. Be free to call everyone you know an "asshole," a "douchebag," a "Ted Cruz," a "pwned little spawn-camping bitch -- Mom later! God"; the judicial branch has your back.
Just be careful who you call a scoundrel.