Viet Cong Cry Will Cost Prison Camp Refugee

(CN) - A man who spent nearly 10 years in a Vietnamese prison camp defamed a refugee teacher by calling him an undercover Viet Cong agent, the Washington Supreme Court ruled.

Norman Le is one of five defendants now on the hook for $310,000 in damages. They are members of a group called Committee Against the Viet Cong Flag, which came together in 2003 to seek the removal of the Vietnamese flag from the lobby of a local community college.

"Many Vietnamese refugees view Vietnam's current flag as the 'communist flag,'' eliciting painful memories and emotions," according to the ruling. "The local Vietnamese community has divided over strategies for seeking the removal of communist flags in the region."

A Santa Claus apron festooned with gold stars apparently brought the conflict to a head when it came into the possession of the defendants, who considered it "an intentional display of communist symbols to show the presence of the communist regime in the Vietnamese community," according to the ruling.

In a public notice they disseminated on Aug. 7, 2003, the defendants complained about the apron and claimed that communist sympathizers had overtaken the local cultural group known as the Vietnamese Community of Thurston County (VCTC).

Duc Tan, a Vietnamese refugee who serves as a leader of the VCTC, received the brunt of the personal attacks in the letter, which accused him and the VCTC of working for "evil communists."

Le, who co-chaired the flag committee, made similar claims in three additional newsletters articles. In the third article, Le named Tan as one of many "VC under-cover agents" who try to display Viet Cong flags in schools while disguised as Nationalists.

Tan had fled Vietnam in 1978 after the Vietnamese Communist Army forced him to sign a loyalty pledge as a condition of release from a communist re-education camp.

Le spent nearly a decade imprisoned in a Vietnamese labor camp before he settled in Washington where he was a longtime secretary of the VCTC. After an 11-day trial ended with a defamation verdict against Le and the other defendants, the jury awarded damages of $225,000 to Tan and $85,000 to the VCTC.

The Washington Court of Appeals overturned the ruling, however, stating that the email and newsletters were not defamatory because they were protected opinion, except for the allegation about the plaintiffs being Viet Cong agents. On this issue, however, the court said Tan and the VCTC failed to prove actual malice.

A six-member majority of the Washington Supreme Court reinstated the damages award last week.

"There is no First Amendment protection for the type of false, damaging statements uttered here; indeed, the purpose of the law of defamation is to punish such statements," Chief Justice Barbara Madsen wrote for the court.

"We defer to the jury's determination that defendants were not credible when they claimed to have made their accusations in good faith," Madsen added. "This, together with our independent review of the record leads us to conclude there was clear and convincing evidence to support the inference of actual malice," she added.

Justice James Johnson dissented, however, calling the majority opinion "a miscarriage of justice for Mr. Le."

"Based on genuine beliefs supported by nondefamatory disclosed facts, Mr. Le and the other respondents believed and alleged that the petitioners in this action retained communist sympathies," Johnson wrote.

In labeling Tan and the VCTC as communists, the defendants expressed "opinions based on disclosed facts within the context of a political debate and thus non-actionable," Johnson added.

Malice furthermore never factored into the defendants' statements, according to the dissent.

"Each event described by the respondents actually happened," Johnson wrote. "The description was the respondents' interpretation of events, colored by their cultural and political experience. Because the disclosed facts were not extreme or improbable, the respondents' professions of good faith should weigh against a finding of malice."

Both the First Amendment and state law protect such speech, the dissent continued.

"That an immigrant may be financially destroyed by a $310,000 verdict for engaging in constitutionally protected rights is unacceptable, and violative of precedent in this court and the United States Supreme Court," Johnson wrote. "I respectfully dissent."

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