If I take a picture of you and caption it that you are a child abuser and limit my distribution to law enforcement, you would say that is okay? If you got mad at me for it and you hit me, then that would make my action okay?
This has nothing to do with first amendment rights. We are both free to defame anyone we please. We just have to pay the penalty.
The caption was false and clearly was intended to defame the men in it. I’m sure the creator could have found pictures of actual illegal alien criminals to make his point but using someone who had no such record was wrong.
From the article: An illegal-alien day laborer who attacked a U.S. photographer at a notorious San Diego day labor site in 2006, was awarded $2,500 in damages for "defamation per se" by Judge Ronald Styn in a non-jury trial in San Diego Superior Court.
The illegal WAS on US soil and DID attack a photographer. That's a fact which he, the alien, hasn't disputed. That makes him a criminal, and it makes the poster accurate, ergo, no unlawful defamation occurred.
The article also points out that the poster was sent to law enforcement officials. It was later disseminated to places such as Fox, but not by the defendant.
Now, using your logic, The Examiner may now also be sued for defamation for publishing this article online, and stating that the plaintiff attacked the photographer. Do you want to make that claim as well?
I think you need to revisit your thought process...
“The caption was false and clearly was intended to defame the men in it.”
The plaintiff in this case was in fact involved in the assault case which this email was concerning. So, he was wanted for involvement in assault and battery events.
So, let me get your argument correct:
Your picture is taken while you are beating someone.
Local police, news channels, etc... could be charged with “defamation per se” just for showing your picture in connection with that attack!
Are you listening to your argument, or are you just wanting to argue for the sake of argument?