Fleming v. Moore

HARRISON, J.,

dissenting.

I find the jury’s awards totalling $110,000 in this case to be shocking. It is inconceivable that a respected professor, as is Mr. Moore, could have been damaged in the University community or elsewhere by the “advertisement” which appeared at the behest of Mr. Fleming.

I attach little significance to the word “racism” which heads the advertisement. The words “racism” and “racist” are bandied about in our society with complete abandon. People of all races currently utilize these terms to voice their innumerable real and imagined grievances. Indeed, it would not be difficult to find a newspaper which contains a complaint by one party against another for some action allegedly grounded in “racism”, or “reverse racism.”

When we examine the advertisement inserted in the papers and strip therefrom Fleming’s self-laudatory and hortatory language, we find that he takes a dim view of Farmington members and tenured professors and feels that without their financial security they would be more sympathetic to the “have nots.” The advertisement then makes a comparison between Thomas Jefferson and Professor Moore in which the latter emerges “second best.” Fleming attempts to make his point by stating that Jefferson located his slave quarters in sight of Monticello, whereas Moore does not want black people in his sight. This apparently refers to Moore’s approval of the suggested location of a tree buffer or screen between his property and Fleming’s proposed development.

The advertisement is in bad taste and is ill-mannered, short-tempered, and indiscreet. It is a poorly conceived and intemperate diatribe by an irate, disappointed, and frustrated black real estate developer who believes that his white opponent in a rezoning matter is not as concerned with pollution as he is apprehensive over the prospect of a “predominantly black, lower-middle-income” development adjoining his property. However, this reaction by Fleming was predictable and could well have been anticipated by Professor Moore when he left the academic community and entered the realm of real estate development and the controversial arena of zoning. The language of the market place is not always restrained, reasonable, or temperate. It is often sharp and unfair, and sometimes raucous, biting, and cruel.

Although the indignation of Professor Moore is understandable we should not allow the publication involved here to be the predicate of an action for libel and an award of damages. I would enter final judgment for the defendant.