Winning ugly
The legal system in the United States has borrowed so much from England — especially the principle that court decisions set precedent for future cases — that it’s easy to forget that, back in the 1780s, the former colonists didn’t follow the example of their British cousins in some important ways. Probably the most important innovation was the creation of a written constitution. Unlike in the United States, there is no “British Constitution.” Instead, Great Britain relies on a series of important historical documents like Magna Carta, and the traditions of their society, to protect individual liberty.
But the absence of a written document containing, among other things, a Bill of Rights, means that there is also no British equivalent to the First Amendment to protect either freedom of speech or of the press in England. And so, in recent years, many litigants have turned to the British courts if they want to seek damages against press organs that have attacked their personal reputations. (In fact, the thing that keeps people out of court in England is probably the “loser pays” rule for attorney’s fees, so that the losing side has to pay both their own lawyer and the lawyer — or lawyers — for the other side.)
And so it was some years back, when actor-writer-director Steven Berkoff took advantage of the receptiveness of the courts in England when he was insulted not once but twice in the British press by a reporter named Julie Burchill. First, in 1994, Ms. Burchill wrote a review of the movie “The Age of Innocence” (directed, one should add, not by Berkoff but by Martin Scorsese) in which she commented, “film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people . . . . ”
Nine months later, apparently having something in particular against Mr. Berkoff, she reviewed the then-most recent movie version of “Frankenstein,” and wrote, “’The Creature is made as a vessel for Waldman’s brain, and rejected in disgust when it comes out scarred and primeval. It’s a very new look for the Creature — no bolts in the neck or flat-top hairdo — and I think it works; it’s a lot like Stephen Berkoff, only marginally betterlooking.”
At this point, Mr. Berkoff could take no more, and proceeded to court against Ms. Burchill. The first judge to review the case concluded that “I am doubtful whether to call a person ‘hideously ugly’ exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun , despite the fact that being hideously ugly is no reflection on a person’s character or good reputation. For that reason, albeit with hesitation, I hold that to call a person ‘hideously ugly’ is defamatory.” This meant that Berkoff could take his case before a jury to have the issue of damages decided.
Burchill took the case to a higher court, which noted that in other contexts, making certain statements about someone — such as claiming a person had a loathsome disease — would be deemed defamatory, even though it didn’t carry the moral implications of, say, accusing that person of having committed a crime. And the court agreed, noting, “words may be defamatory, even though they neither impute disgraceful conduct . . . nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society.”
And so the court concluded that, “in the context the remarks about Mr. Berkoff gave the impression that he was not merely physically unattractive but actually repulsive” and that this could injure Berkoff’s ability to make a living by “lowering his standing in the estimation of the public … making him an object of ridicule.” The case was allowed to proceed to a jury trial (the results of which, unfortunately, are not recorded).
Back in 1983, the Chicago White Sox ended a 20-year drought of championships in the Windy City by winning the Western Division of the American League. Doug Rader, the manager of the Texas Rangers referred to their success as “winning ugly,” which apparently referred to the team’s reliance on scrappy play instead of grace and finesse — and not any repulsive characteristics of the team members themselves — to win games. Fans of the team even picked up the phrase to make it their slogan that year.
But it’s a good thing Rader didn’t make that comment about a British sports team — because then he might have ended up explaining his comments to a jury.