Quasi-Literate Racist Asshole Jim DeBerry of Definitive Television Threatens To Sue Above The Law For Calling His Video Racist

If you want to be a quasi-literate racist asshole, go right ahead. It's a free country. There are lots of quasi-literate racist assholes around and it's unlikely you will distinguish yourself. I trust the marketplace of ideas to assign appropriate social consequences to you and your business. I may or may not help distribute those social consequences depending on the degree to which you irritate me.

But when you start threatening to sue people for pointing out that you're a racist asshole, I feel that you are going out of your way to antagonize me. I feel that it's time to put on my cockroach-stomping boots.

You might have seen the coverage at Lowering the Bar or FindLaw or numerous other sites of a breathtakingly racist caricature in a purported law firm advertisement produced by a company called Definitive Television, the vehicle of one Jim DeBerry of DeBar Holdings Ltd. The advertisement features a man dressed up in an Asian-caricature costume using an Asian-caricature voice to recommend a law firm called McCutcheon & Hamner, PC in Alabama. The caricature is a character Definitive TV offers to its clients. Definitive TV is a little defensive about it right out of the gate:


So touchy!

When Joe Patrice at Above the Law reported on this, two things happened. First, the law firm of McCutcheon & Hamner PC claimed that it had been "hacked" and that it did not approve the commercial. That may or may not be true. Second, Jim DeBerry wrote Above the Law and threatened to sue for suggesting that the advertisement is racist.

The threat is a masterful example of sub-literate drivel from a self-important tool who thinks he's learned law from ten minutes on Google, seven of which were spent looking at lolcats. There's the moronic "it's not racist under this dictionary definition I chose" rhetoric:

We object to the statements of racism, as we do not fit under the legal definition, which is, The belief that race accounts for differences in human character or ability that a particular race is superior to others. 2. Discrimination or prejudice based on race.

There's the bizarre use of commas, odd diction, and weird capitalization that suggest that Jim DeBerry just took a break from sending 419 scam emails:

Furthermore, upon your interview request, we have read MR. JOSEPH PATRICE article/blog


Finally, there's the barely-coherent jibber-jabber threat:

We firmly believe MR. JOSEPH PATRICE statements of racism when done with intentional malice and to damage our name for gain of revenue and promotion on his article through your business. Mr. Patrice is not stupid or ignorant, by lacking intelligence or common sense. By all appearances, He is educated and he fully understood the reckless racist statement claims with intentional malice he chose to type and for yourself to distribute when he submitted for article creation in which you accepted. We are currently consulting with another party regarding how we should pursue action against the libel statements made by Mr. Patrice, through your company, and others.

I will accept a retraction and apology related to the racist claims made by MR. JOSEPH PATRICE published by your company.

Let's be clear: Jim DeBerry's legal threat is complete bullshit and shows that he's pig-ignorant in addition to a racist. When Above the Law or any other blog or individual looks at DeBery's douchey video and calls it racist, that's a classic statement of opinion absolutely protected by the First Amendment. Above the Law didn't claim that DeBerry's company produced a racist video based on a secret review of some undisclosed videotape. If that had been the case, DeBerry might argue that Above the Law was implying false undisclosed facts. Instead, Above the Law and other commentators are offering opinions based on a specific disclosed fact — the video. You might not share the opinion that the video is racist, or that it reflects racist attitudes by the people who produced it. That's your prerogative. But calling the video racist — and calling the classless untalented hacks who shat it out racists — is classic opinion. As I have explained before, such an opinion is protected by the First Amendment:

This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.

Similarly, if I said "I've reviewed his personal papers and Jim DeBerry is illiterate," that might be defamatory, because I'm implying potentially false facts. But that's not what I'm saying. I'm saying that Jim DeBerry's idiotic legal threat, which I've linked, shows that he's less literate than the average penis-enlargement spammer — in addition to being a racist douchebag. That's opinion based on disclosed facts and therefore absolutely protected.

Before closing comments on the YouTube video, someone (consider the diction and grammar, and guess who) from Definitive TV wrote this:

We are respect your 1st amendment right and your freedom of opinion and speech on our comment board and will approve your comments. Due to the overwhelming feedback (50% positive and 50% negative) and at the request of McCutheon & Hamner at Law we have elected to disable the comment thread. We may open the comment section back up soon when we can reply.

Of course, this is wrong. YouTube is private and Definitive TV is private and nobody has a First Amendment right to post comments there if YouTube and Definitive TV don't want them to. But Definitive TV's mention of the First Amendment here is more than a little erratic, given their bogus legal threat to Above the Law. Maybe being a racist douchebag all the time is mentally taxing.

So: don't let the stupid threats of the Jim DeBerrys of the world chill you. Instead, call them out.

And I propose, to commemorate Mr. DeBerry's idiocy forever, that we make "We are respect your 1st amendment right!" a catchphrase for dealing with such censorious thugs.

In Which Ken Displays Unusual Restraint

I spent part of the morning waiting in a hall in what used to be called the Criminal Courts Building, and is now called the Clara Shortridge Foltz Criminal Justice Center. It has not been cleaned, and the elevators have not been repaired, since I worked in the building in 1989.

I arrived quite early, and waited for the courtroom to open. As I did so, an unkempt and morose-looking young man sitting on a nearby bench in the sparsely-populated hall was trying out ringtones on his phone. One by one. At full volume. From an apparently vast library.

I considered, and rejected, the possibility of approaching him. Prudent people do not approach odd strangers in criminal courthouses to complain about their conduct.

I also considered going and telling a guard that I had just been in the restroom and had observed the young man removing a shiv from some bodily orifice, and that he seemed twitchy and upset.

The better angels of my nature — one of which is entrenched sloth — won out.

The young man eventually chose a ringtone that sounded like an air raid siren, and tested it out several times.

I am given to understand that in an Objectivist society I would be allowed to have my servants shoot him. Pity.

How Not To Celebrate National Adoption Month

Occasionally life gives you pop quizzes, which you fail.

This weekend, life's pop quiz was "Hey, Ken, since it's National Adoption Month, do you think you could model how to react positively and constructively to challenging or uncomfortable adoption-related social situations?"


That wasn't the right answer. Not even partial credit.

Many timeson this blog, I've talked about the social challenge that adoptive parents face in responding to rude questions in public, and how uncomfortable those situations can make us. I've admitted fantasies about telling rude people off, but maintained that adoptive parents should generally opt for education or avoidance over confrontation in order to avoid conveying to our children that there is something upsetting or shameful about adoption. It's much better for our kids to say "Actually, that's personal" or "whyever do you ask" than to say "go screw yourself, you nosy twit", however viscerally satisfying the latter is.

Yeah, well. About that.

When it came to it, on a sunny November Saturday watching my son play soccer, I blew it.

Now, I was provoked. But like I said earlier today, provocation is not an excuse.

I was sitting there in the sun when a father watching a game on the next field started up with me. He was an aging jock type, Al Bundy in sweats and a smirk. "Is that your son?" Yes. "Really?" Yes. "I mean — that kid there. He's really your son?" [smirk] Uh-huh. "Yeah, that kid?" [smirk] "Because he's — you know." Huh. [More smirks.] Then, "Hey, I'm just askin'. Am I not being PC?" No, you're fine.

If I had left it at "no, you're fine," he would have lost interest at my lack of response and wandered off. But I added ". . . I mean, considering." And he picked up on it, and followed up, and asked what I meant, and it went downhill from there. I won't describe it at length, because it would defeat the purpose of advocating against smacking down rude people about adoption in public near our kids and in favor of either educating or avoiding. Suffice it to say: (1) I said he was fine, considering his capacities, and that I supported people like him being mainstreamed, and did they bring him on a bus from his group home, and so on [I was thinking of crazy people, but in retrospect it sounds like a joke about the mentally handicapped, which is embarrassing to me], (2) he blustered and threatened and got red in the face, (3) I said a number of things that were cutting and a number of things that were merely angry or incoherent, among them "that depends on the color of your ear," [very sure I said it, seemed very a propos at the time, no idea what it means], and (4) people started to notice and look concerned and there was the possibility of getting into a fistfight for the first time in decades, and (5) eventually something happened on his son's game and he cussed at me and pointed at me and threatened some more and went off to look after his son.

So. Not my brightest hour. The saving grace: Evan was on the field and didn't notice.

Did it feel good at the time, to confront him and cut at him and score points off of him? God, yes. It felt great. But I sure as Hell didn't impress any of the parents or kids in earshot about adoption being a normal, positive thing. I made them think of this adoptive parent as being angry and out of control. And I helped solidify in their mind the idea that cross-racial adoption is somehow upsetting and Other. Plus, had my son been there, and observed it, he would have picked up that there was something very upsetting, and maybe shameful, and controversial, about me being his father.

The guy was trying to get my goat. He got it. I'll try to do better next time. But I can't promise anything.

The Paternalistic Impulse

I'm not really a guy who thinks that the women of the world require special protection from hurt feelings, particularly special protection provided by me.

However . . .

The profession of law — and especially civil litigation — has well more than its share of middle-aged men with serious personality deficits that emerge when they deal with female lawyers, especially young female lawyers. Those personality deficits express themselves through bullying, shouting, sneering condescension, sniping, and a wide variety of other unprofessional and unpleasant behavior — all of it focused at young female attorneys with a vigor and emphasis that is highly noticeable even when said middle-aged men are assholes to everyone.

My young female associates can take care of themselves. They are smart and competent. They are adults.

However . . .

My name is on the door. It got there because I am, all humility aside, pretty good at what I do. Within my skill-set is the ability to humiliate sad-sack personality disordered middle-aged men who work out their inadequacy issues by bullying young female associates. That ability includes humiliating said sad-sacks on paper, humiliating them in front of clients, and humiliating them in front of judges, as well as making litigation as miserable and stomach-twisting experience for them. I have the ability to convey to opposing clients that they are going to get an less desirable settlement or result than they otherwise would because they chose a douchebag for a lawyer. I have the ability to do all of that without getting sanctioned, within the bounds of the law.

Women are not tender flowers needing special protection from meanies. I do not view my young female associates as inferior to young male associates in any way.

However . . .

There are limits to my enlightenment. If you make one of them cry, I am going to make you pay. Count on it.

In Which I Further Separate Myself From Those Around Me

Me: [Prolonged rant about opposing counsel's inability to understand simple rule of civil procedure]

Associate: "Serenity now," Ken.

Me: See, that just makes me MADDER. STUPID FOX NETWORK!

Crowd of Associates: [Perplexed and concerned silence]

Me: It's a geek thing. You wouldn't understand.

Crowd of Associates: [Darting confused glances at each other.]


Vast Wasteland

Sometimes Dateline NBC and all of its crime-related spinoffs, 20/20, and other newsmagazines have interesting and informative true-crime stories. But I find them impossible to watch.


Because they appear to be scripted for the benefit of someone who has suffered mild brain damage resulting in grave short-term-memory deficits and a compulsive need to shop.

9:01:00 p.m. "This is a story about a woman who was murdered. Here's the story: there once was a woman. Up next, we'll tell you about how she met someone."

9:05:00 p.m. [Commercials]

9:10:00 p.m. "Earlier we established that there once was a woman. Let us remind you about this woman, and how she once, in fact, was. Then she met someone! Up next, the someone initially seemed nice."

9:15:00 p.m. [Commercials]

9:20:00 p.m. "This is extremely complicated, so for the love of God please try to bear with us if you can. There. once. was. this. woman. And … and this is the important part … she MET someone. Look how very nice that person was! Nice to the woman, that is. The woman who was. Up next, a suggestion that the person she met was not nice after all.

9:25:00 [Commercials]

9:30:00 "Look, we'd better just start over."

At this point I want to stand on the couch and scream GET TO THE FUCKING POINT. You can't even fast-forward with it, because the mindless review and rereveiew and rerereview and preview is interwoven with everything else.

Look, I understand that you need to fill up an hour — occasionally two — with a simple story of X meets Y, Y kills X, X is acquitted or convicted. Couldn't you maybe tell three or four of those stories per hour?

If Only His Mother Had Called Him "Peaceable" Or Even "Frolic"

Here's some free legal advice regarding plausible defense strategies:

If you are a well-known "professional wrestler" who "fights" under the name "Rampage Jackson," and you drive a big-ass truck that has your name and picture on it, like so:


Then there is probably not much of a point in fleeing the scene on foot when you run into somebody with the truck.

They're going to figure it out.

Sit down, have a smoke, look up your probation officer's phone number. Maybe call your agent. Just chill.