Racial discrimination
It happened a long time ago. A friend of mine was pulled over by the police after drinking and driving with a red face. My friend was always a big guy, but when the cop asked him, “Why are you red in the face, aren’t you drunk?” he proudly replied, “I’m Indian, so my face is naturally red. Are you racially discriminating against me?” To the surprise of his friends, the flustered policeman replied, “I never meant to be racist. I’m really sorry if you misunderstood,” and told him to leave. While this prank might not work today with the growing number of Asians in the U.S., it’s an example of how racism is still very much a part of American society. Racism is a social taboo in the United States.
Recently, the New York Times published an article that portrayed Korean nail technicians as a group that does not hesitate to use racial slurs (“The Price of Nice Nails,” May 7, 2015). The article seems to be referring to problems in the nail industry, such as low wages and unfair treatment in the New York nail industry as a whole. However, in a paragraph subtitled “Racial caste system,” which mentions that 70-80 percent of New York City nail salons are owned by Koreans, the article implies that all Korean-American businesses are racially discriminated against. The article included inflammatory statements such as, “The non-Korean employees eat lunch standing up in a corner of the small kitchen, while the Korean employees sit at their desks and eat their lunch in comfort,” and “They have complete freedom…Why are you discriminating against us, we’re all the same.” Although the New York Times framed it as the testimony of one individual, the article left the reader with the impression that all Koreans in the nail industry are “racist”. A straightforward reading of the article would make Koreans appear to be a disrespectful group of people who engage in socially taboo racism.
As a Korean, I was deeply offended by this article. However, from a lawyer’s point of view, I would like to revisit the issue once again. Can the Korean nail industry file a defamation lawsuit against the New York Times?
In order to proceed with a defamation lawsuit, the complainant (plaintiff) must prove that 1) the statement is untrue, 2) the statement was communicated to a third party in writing or speech, 3) the defendant is at fault for communicating the untrue statement to the third party, and 4) the complainant suffered damage as a result. In the case of the New York Times, it seems that it is sufficient to prove that the statement is untrue and that the complainant suffered damage.
However, there is a caveat to this case because the opponent is a newspaper, the New York Times. Newspapers and broadcast media have a privileged right to freedom of speech under the U.S. Constitution. For this reason, if a newspaper criticizes an organization, government agency, or person in an editorial, it is the opinion of the newspaper, which means that the newspaper is protected by free speech and the other party cannot sue for defamation. Also, a news or newspaper story does not have to be 100% true, but can be “substantially true.” So, in this case, the question is whether the story is “substantially true” or not.
Since the article was published, there have been reports that the Consulate General in New York has been monitoring the situation and that the Korean American Parents Association of New York has sent a letter of protest to the New York Times and is planning a demonstration. While we hope that the New York Times article will help improve the welfare of the nail industry as a whole, it is important to address any misconceptions about Korean nail technicians that may have been created by the article.
If you have any questions about defamation, or if there are any laws our readers would like to know about, please don’t hesitate to contact us at mail@songlawfirm.com. I’ll incorporate it into my next column.