9-year-old NFL Fan Becomes Political Football: Court Spikes Deadspin’s Motion to Dismiss “Blackface” Lawsuit
What percent of a nine-year-old’s face can be covered in black paint before it is objectively “blackface?” Is double racism twice as bad as regular? These are the very questions a Delaware court has been tasked with resolving.
In October, Judge Sean Lugg of the Superior Court of Delaware rejected the sports commentary website Deadspin’s motion to dismiss a defamation lawsuit filed by the parents of a 9-year-old football fan. Deadspin had accused the youngster and his parents of racial animus for wearing face paint and a headdress to an NFL game.
Seeing Red
In 2023, Raul Armenta Jr., Shannon Armenta, and their son Holden attended a Kansas City Chiefs game in Las Vegas. Wearing a team jersey and a headdress, the boy’s face was painted in the team’s colors: black and red.
Nothing racist about this? (AP/David Becker)
After the game, Deadspin published an article by Carron Phillips titled “The NFL needs to speak out against the Kansas City Chiefs fan in blackface, Native headdress. They’re doubling up on the racism. Are you going to say anything, Roger Goodell?”
The purported focus of the article was the NFL’s failure to address Native American cultural appropriation. While the Kansas City Chiefs have banned headdresses and face-paint at their own games since 2020, the NFL has yet to implement a league-wide ban. The Armentas attended an away game.
To illustrate, Phillips included a screenshot of Holden - in profile - which only showed the black-painted side of Holden’s face. Phillips asserted that Holden “found a way to hate Black people and the Native Americans at the same time,” that it amounted to “doubling up on the racism,” and that Holden’s generation was being allowed to “recreate racism better than before.”
Definitely blackface? (CBS)
When confronted on social media with images of the boy’s full face, Phillips did his own doubling up, stating on X: “For the idiots in my mentions who are treating this as some harmless act because the other side of his face was painted red, I could make the argument that it makes it even worse. Y’all are the ones who hate Mexicans but wear sombreros on Cinco.”
In the ensuing weeks, the Armenta Family wrote to Deadspin demanding a retraction and apology. As it turned out, Holden’s father Raul belongs to the Santa Ynez Band of Chumash Indians and works on their tribal reservation. Deadspin subsequently tweaked the headline and article, removing explicit references to Holden and scrubbing references to “racism” or “cultural appropriation.” An Editor’s Note called Holden’s targeting “unfortunate.”
The Armentas sued.
What is Objectively Racist?
Traditionally, the First Amendment protects opinions – even overheated and severely misguided ones - so long as the speaker shows their work. First Amendment lawyers call this an opinion based on disclosed facts. The premise is that the reader is empowered to decide whether the speaker’s view is persuasive. For example, calling OJ Simpson or Kyle Rittenhouse “murderers” despite their criminal acquittals is perfectly valid so long is the label is premised exclusively on what is publicly known. Readers are free to accept or reject the premise because they have access to the same universe of facts.
Similarly, under defamation law, “close enough” is another bedrock principle (a legal doctrine called substantial truth.) If the gist or string of an accusation is accurate, courts will forgive misinformation because the truth is no better than the lie.
When it comes to accusations of racism, courts endeavor to separate the objective (fact) from the subjective (opinion). It’s not always easy. This is at least the second time in recent years that a minor has sued over allegations of racism. In Sandmann v. New York Times, a plaintiff sued The New York Times for defamation after coverage of him (allegedly) obstructing the path of a Native American activist went viral in January 2019. Nicholas Sandmann, then a student at Covington Catholic High School in Kentucky, was attending a “March for Life” event with his peers – decked out in red MAGA Hats - at the National Mall in Washington, D.C. A confrontation ensued between the Covington students and members of a Black Hebrew Israelite group.
Native American activist Nathan Phillips, who was attending an “Indigenous People’s March” at the same venue, stepped between the groups. Students responded to his singing and playing of drums by jumping, chanting, and whooping. As Phillips moved through the rowdy crowd, Sandmann stood his ground. A mild standoff ensued. Video coverage saturated the internet and Sandmann became known as the “MAGA Hat Kid.”
In an interview, Phillips stated that Sandmann “blocked my way and wouldn’t allow me to retreat.” Sandmann sued numerous news organizations for reporting that he obstructed Phillips and, ergo, characterized him as racist. Eventually, the Sixth Circuit found for the media, stating that “Phillips’s statements are opinion, not fact.” Judge Jane B. Stranch wrote that Phillips’ statements about the encounter were “contextual and subjective,” and despite Sandmann’s claims, “there is no bright-line rule that statements based on sensory perceptions are naturally factual.”
Other courts have affirmed this “no falsity in opinion” rationale with respect to racialized remarks. In 2021, a Utah Jazz fan sued NBA star Russell Westbrook for characterizing his sexually charged heckling as racist. After stating that a “young man and his wife in the stands told me, ah, to get down on my knees like you used to,” Westbrook opined that “for me that’s just completely disrespectful, ah to me, ah, I think it’s racial.”
The Utah Court of Appeals subsequently affirmed the trial court’s dismissal of the case, finding that “Westbrook's assertion that Keisel's comment was ‘racial’ can't be proven to be true or false. Simply put, if beauty is in the eye of the beholder, ugliness is too.”
However, the court cautioned that “some courts have drawn a distinction between an allegation of racism generally (which would not be actionable) and an allegation based on more particular conduct (which could be).”
What Is “Blackface?”
“Blackface,” as defined by the National Museum of African American History and Culture (NMAAHC), is the practice of performers using shoe polish, makeup, or burnt cork to portray a caricature of Black people on stage or in entertainment.
While there are clear cases that meet NMAAHC’s historical definition of blackface, contemporary discourse is all over the place. In February 2019, Inside Edition re-examined cinema’s most famous chimney sweep scene after a paper by a (white) college professor accused Julie Andrews of sporting blackface in Mary Poppins. Days later, ABC San Diego debunked a satirical post that U.S. Navy Seals were no longer allowed to paint their faces black for night missions.
In sum, blackface is context-specific and highly politicized, mostly by bad actors who hopscotch from issue to issue. Thus, it’s not clear whether a reasonable person – let alone an NFL fan - would look at that photo and conclude that Holden was wearing “blackface.” To wit, the Armentas stressed in their Complaint that face paint is quite common at pro football games, and black is a team color.
Nevertheless, in rejecting Deadspin’s motion to dismiss, Judge Lugg emphasized that the screenshot created a false factual impression. “While arguably couched as an opinion, the author devotes substantial time to describing H.A. and attributing negative racial motivation to him. . . .Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual assertion that there was a ‘Chiefs fan in Black face’ at the game . . . a reader may reasonably interpret the Article’s assertion that H.A. was wearing Black face as a fact.”
Who is Allowed to Offend Whom?
The Court’s order does not say much about the headdress or facepaint, or whether Phillips was close enough despite conflating two forms of racism.
In their complaint, the Armentas state that Holden cannot “hate Native Americans… He is Native American.” Yet, his father acknowledged in an interview that their tribe “doesn’t even wear that type of headdress,” adding that it was a costume piece purchased to be worn to games.
Indeed, most tribes frown on such behavior. Tribal Chairman Kenneth Kahn, of the Santa Ynez Band of Chumash Indians, issued a statement to the Santa Ynez Valley News:
“We are aware that a young member of our community attended a Kansas City Chiefs game in a headdress and face paint in his way of supporting his favorite team. Please keep in mind that the decisions made by individuals or families in our community are their own and may not reflect the views of the broader tribal community," Kahn said. "As a federally recognized tribe, the Santa Ynez Band of Chumash Indians does not endorse wearing regalia as part of a costume or participating in any other type of cultural appropriation."
Neither of these facts are reflected in the Court’s analysis. Instead, hairs are split between racist acts and racist thoughts: “To say one is a racist may be considered opinion, but to plainly state that one’s attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable.” In other words, ascribing racial animus to racist acts is out of bounds.
Harsh Penalty for a False Start
Overheated and overblown as Phillips accusation of blackface was, it would likely have been protected had the screenshot reflected both colors on Holden’s face. While the First Amendment protects hot takes of all varieties, commentators must be careful not to fumble the facts.
