From Day v. California Lutheran Univ., decided yesterday by Ninth Circuit Judges Gabriel Sanchez and Salvador Mendoza, Jr., and District Court Judge Brian Jackson (M.D. La.) (reversing a decision I blogged about last Fall):
In January 2020, a group of students from the California Lutheran University ("CLU") women's softball team performed a lip-sync routine to the theme song from The Fresh Prince of Bel-Air, allegedly wearing "hip-hop clothing," dark makeup to portray facial hair, and curly wigs. After the team posted the performance on social media, CLU's leadership received a complaint that the performance was "blackface."
In the following weeks, CLU's leadership addressed the performance in emails to the CLU students, campus-wide community forums, and a meeting with the softball team and their parents. These communications characterized the performance as a "racist incident," remarked that "blackface" "evoke[s] white supremacy" and "anti‑blackness," and expressed the view that "students were recorded doing performances in which there were exaggerated characterizations of black people and culture" and that "[m]any viewers in [the] campus community took offense and identified" the images as "blackface." Plaintiffs sued CLU and certain officers for defamation, false light, and other state law claims arising from these assertedly false statements.
The court held that defendants' speech wasn't legally actionable:
