*Nicholas Balzano
I. Introduction
Kanye West (West) is no stranger to drama,[2] but his latest comments may have finally landed him in serious legal trouble.[3] Just weeks removed from posting on his Twitter account that he was going to go “death con 3 on JEWISH PEOPLE,”[4] a comment which resulted in West getting banned from both Facebook and Twitter,[5] West went onto the podcast Drink Champs and claimed that George Floyd (Floyd) died due to a fentanyl overdose.[6] West’s comments about Floyd were blatantly false; the “Hennepin County Medical Examiner’s Office ruled that Floyd’s death was a homicide, caused by Derek Chauvin kneeling on Floyd’s neck for over eight minutes.”[7]
Upon hearing West’s comments about Floyd, the Floyd family announced their intention, through their attorneys at the Witherspoon Law Group, to sue West, his business partners, and his associates “for harassment, misappropriation, defamation, and infliction of emotional distress” for a total sum of $250 million in damages.[8] This suit is highly reminiscent of a recent claim against the famous conspiracy theorist Alex Jones, in which a jury found that Jones must pay “$965 million to the families of eight Sandy Hook shooting victims” after Jones “creat[ed] a fake narrative that the mass shooting was a hoax.”[9] If the outcome in the Jones case is any indication, it would seem that West could face a similar consequence.
II. What Is the Floyd Family Claiming in Their Suit?
In addition to legal claims of “harassment, misappropriation, defamation, and infliction of emotional distress,”[10] the Floyd family also claims that West’s words have hurt Floyd’s daughter, and “creat[ed] an unsafe and unhealthy environment for her.”[11] The Floyd family’s attorneys have stated that “Kanye’s comments are a repugnant attempt to discount George Floyd’s life and to profit from his inhumane death” and that they will “hold Mr. West accountable for his flagrant remarks.”[12] The family has stated that “[f]ree [s]peech [r]ights do not include harassment, lies, misrepresentation, and the misappropriation of George Floyd’s legacy.”[13] While the Floyd family has made several claims in their suit, the allegation of intentional infliction of emotional distress (IIED) may provide their most likely route to victory.[14]
III. How Can the Floyd Family Prevail in Their Lawsuit Against West?
According to Roy S. Gutterman, the director of the Tully Center for Free Speech at Syracuse University, the “[Floyd] family may have an uphill battle” against West on the matter of First Amendment rights.[15] Gutterman points out that “there is no possibility of a defamation action” in this case because there is “no living plaintiff whose reputation has been damaged.”[16] However, Gutterman does see a potential path to victory for the Floyd family on their claim of IIED.[17]
On October 12, 2022, a jury in Connecticut handed down a massive victory for some of the families who lost their loved ones in the Sandy Hook massacre.[18] One of the central claims at issue in the case was the claim of intentional infliction of emotional distress as a result of Alex Jones’ statements that the entire massacre was a government hoax.[19] The families of the Sandy Hook victims claimed that the comments made by Alex Jones turned their lives post-Sandy Hook “into years of torment”[20] and that “Jones [had] made it so they [couldn’t] escape” the trauma the mass shooting had inflicted.[21] For example, Mark Barden, who lost his son in the shooting, claimed that due to Jones’ comments, his seven-year-old son’s grave had been “urinated on” and that those who believed Jones’ that the shooting was a hoax had even gone so far as to threaten to dig up his son’s coffin.[22] The families of the Sandy Hook victims prevailed on their claim of IIED, and Alex Jones was made “to pay nearly $1 billion” due to his flagrantly false comments.[23]
Given the outcome of the Sandy Hook case, Floyd’s family may have a good chance at claiming that West’s comments have caused the harm necessary to satisfy the elements of IIED.[24] According to Gutterman, for the Floyd family to succeed on such a claim, they will need to “prove that the statements were intentional or reckless, outside the bounds of accepted decency and morality and causally-connected to some viable harm.”[25]
Analyzing West’s statements under this framework, it appears that the Floyd family may have a good argument to win on their claim of IIED. Under the first prong, West’s statements do not appear to be intentional under the Second Restatement approach which requires an intention to inflict the emotional distress,[26] however, the statements by West are more likely reckless as they were in “deliberate disregard of a high degree of probability that emotional distress” will occur.[27] The second requirement, that the statements be outside the bounds of accepted decency, appears to be satisfied as Floyd’s death was a highly charged issue and by claiming that Floyd’s death was the result of drugs, West undermines the seriousness of Floyd’s death at the hands of the police.[28] West’s statements likely satisfy the element of conduct outside the bounds of decency put forth in the Second Restatement of Torts that, upon hearing the objectionable statements, “an average member of the community would arouse his resentment against the actor.”[29] The last prong also appears to be satisfied as West’s statements are likely causally-connected to the harm suffered by Floyd’s daughter that is alleged by the family.[30] Given this analysis of the IIED requirements, the Floyd family may be successful on their claim against West.
IV. Conclusion
Kanye West is well-known for his erratic behavior, but he may have taken it too far this time. With his recent false claims against George Floyd and concerning behavior, West was dropped by some of his highest-profile sponsors, including Balenciaga, Vogue, and GAP.[31] On top of those brands dropping him, West now faces the $250 million lawsuit from Floyd’s family.[32] With the jury’s decision in Alex Jones’ case, celebrities may learn that now, more than ever, their speech can have serious ramifications. While West has been able to avoid serious legal consequences for his previous antics, this large lawsuit by the Floyd family should have West considering going “Off The Grid” for good this time.[33]
*Nicholas Balzano is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review, a member of the Royal Graham Shannonhouse III Honor Society, and a member of the Honor Board. Prior to law school, Nicholas worked as a law clerk at Atkinson Law. During his 1L summer, Nicholas interned with the Honorable Audrey J.S. Carrión, Administrative Judge and Chief Judge for the Circuit Court for Baltimore City.
[1] Kanye West, Runaway, on My Beautiful Dark Twisted Fantasy (UMG Recordings, Inc. 2010).
[2] See Charlotte Begg, “It Hurts my Feelings”. All the Drama between Kanye West and the Kardashian . . . and Everyone Else., MamaMia (Oct. 5, 2022), https://www.mamamia.com.au/kanye-west-kardashians-drama/.
[3] See Matt Adams, The Family of George Floyd Plans to File a $250 Million Lawsuit Against Ye, NPR, (Oct. 19, 2022), https://www.npr.org/2022/10/19/1129747423/kanye-west-george-floyd-lawsuit.
[4] Loree Seitz, Kanye “Ye” West Apologizes for Anti-Semitic ‘Death Con’ Comments: ‘I Caused Hurt and Confusion’, Yahoo, (Oct. 19, 2022), https://www.yahoo.com/now/kanye-ye-west-apologizes-anti-223700055.html; Sarah McCann, What does Defcon 3 mean? Kanye ‘Ye’ West’s Antisemtic Comment Explained-how did Adidas and Spotify Respond, NationalWorld, (Oct. 27, 2022), https://www.nationalworld.com/news/people/what-does-defcon-3-mean-kanye-ye-wests-antisemitic-comment-explained-how-did-adidas-spotify-respond-3894636 (“Defcon is an abbreviation of the term Defence readiness condition which is used by the US Military. Defcon 3 means ‘force readiness increased above normal levels’ and would mean there is ‘increased regional tensions with possible U.S. force involvement.’”)
[5] Id.
[6] See Daniel Kreps, Kanye West Blames George Floyd’s Death on Fentanyl, Not Police Officer’s Knee, Rolling Stone,(Oct. 16, 2022),https://www.rollingstone.com/music/music-news/kanye-west-george-floyd-drink-champs-1234612069/.
[7] Adams, supra note 3.
[8] The Witherspoon Law Group, Facebook, (Oct. 18, 2022), https://www.facebook.com/witherspoonwewin/posts/pfbid02CYAb5U7BDpNDFfAhEXQUy3SwyvhFkyf217EJRmiJg5qGmzVdZha92uT7eGb8yY4Rl.
[9] Safia Samee Ali, Alex Jones Must Pay $965 Million in Damages to Families of 8 Sandy Hook Victims, NBC News, (Oct. 12, 2022), https://www.nbcnews.com/news/us-news/alex-jones-must-pay-965-million-in-damages-to-families-of-8-sandy-hoo-rcna51200.
[10] The Witherspoon Law Group, supra note 8.
[11] Id.
[12] Id.
[13] Id.
[14] See Adams, supra note 3.
[15] Id.
[16] Id.
[17] See id.
[18] See Ali, supra note 9.
[19] See id.
[20] Dave Collins, Alex Jones Ordered to Pay $965 Million for Sandy Hook Lies, AP News, (Oct. 12, 2022), https://apnews.com/article/shootings-school-connecticut-conspiracy-alex-jones-3f579380515fdd6eb59f5bf0e3e1c08f.
[21] Ali, supra note 9.
[22] Collins, supra note 20.
[23] Id.
[24] See Adams, supra note 3; Restatement (Second) of Torts § 46(1) (Am. L. Inst. 1965).
[25] See Adams, supra note 3.
[26] Restatement (Second) of Torts § 46 cmt. (h)(i) (Am. L. Inst. 1965).
[27] Id.
[28] See Adams, supra note 3.
[29] Id. § 41 cmt. (d).
[30] Id.; see The Witherspoon Law Group supra note 8.
[31] See Jordan Hart, Kanye West Refuses to be Canceled Despite Vogue and Balenciaga Being the Latest Among these Fashion Companies to Sever Ties, Business Insider, (Oct. 22, 2022), https://www.businessinsider.com/balenciaga-gap-yeezy-adidas-fashion-brands-dumped-kanye-west-2022-10.
[32] See Adams, supra note 3.
[33] Kanye West, Off The Grid, on Donda (UMG Recordings, Inc. 2021).
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