The Convicium Approach to Defamation

Earlier, I blogged about a Yankee fan, Andrew Rector, who is suing ESPN and several announcers for defamation after they made remarks about him sleeping during a game. In that post, I argued that Rector's complaint was doomed on the merits, in part because the defamatory statements he described in his complaint were statements of opinion rather than false statements of fact.

Looking back, I may have been too harsh to argue that Rector's lawsuit was meritless. Instead, Rector seems to have simply filed his lawsuit in an untimely manner, and in the wrong court. R.H. Helmholz explains further, in his book, Roman Canon Law in Reformation England:

The sixteenth and seventeenth-century ecclesiastical courts carried further a change that had begun at the same time their jurisdiction over imputations of secular crimes were beginning to be attacked in the last quarter of the fifteenth century. That was to permit actions to be brought for convicium. Convicium meant abusive and hurtful language which did not, however, necessarily impute the commission of a crime. Post-Reformation practice built upon and expanded this change. Thus one finds imputations that were in truth no more than insults -- words like "whore of thy tongue" -- appearing in the act book records. It became possible to invoke ecclesiastical jurisdiction when one had been called merely "a hypocrite", "a false knave", "a cozener", or "a scurvy drunken baggage". To say that a man had "no more conscience than a dog", or even that he "went to church to pray for his dog", could amount to actionable convicium. None of these abusive but unincriminating phrases would have been actionable under the Provincial Constitution of 1222 that had dominated medieval practice. That Constitution required the imputation of a crime and the requirement had had the effect of limiting the number of defamation causes the Church courts heard. This development removed that limit. 

Behind the new remedy lay the theory that any words uttered out of malice and against "fraternal charity" should subject the speaker to ecclesiastical jurisdiction and discipline just as surely as those which expressly imputed a crime. In the act books, these causes were sometimes expressly styled as being undertaken "for the reformation of manners". . . . Defining what words might be said to offend "fraternal charity" is not an easy thing to do, and contemporary civilians did not offer precise definition. (58-59) (footnotes omitted)

Rector complained that he had been called words like "stupor, fatty, unintelligent, [and] stupid," by commentators. These terms would almost certainly be characterized as statements of opinion. While statements of opinion like these are not actionable under modern defamation law, it would appear that Rector would have a pretty good claim for convicium. While I did not hear any announcers call Rector "a false knave," or "a scurvy drunken baggage," the insults he is claiming are in the same vein as these examples of actionable convicium.

Admittedly, Rector filed his lawsuit a little bit too late. He would have been best off filing this lawsuit in the 16th or 17th century when convicium actions were more commonly accepted. Also, Rector filed his lawsuit in a New York trial court, where his convicium claim would probably fail. Rector would be better off filing his complaint in an English ecclesiastical court.

But in light of my discovery of the strategy Rector may have intended to pursue, I may have been overly hasty to claim that his lawsuit was meritless. On paper, Rector raises a decent convicium claim -- he's simply filed the lawsuit in the wrong court and in an untimely manner.