“The View” co-host Whoopi Goldberg is under fire after accusing the owner of an iconic Staten Island bakery of refusing to serve her cupcakes because of her far-left views.
Goldberg complained during the daytime liberal women’s talk show Wednesday that Holtermann’s Bakery wouldn’t sell her the popular Charlotte Russe desserts she wanted for her 69th birthday because of her “politics.”
She told the audience that the push-pop style confections were a favorite of her mother’s when she was growing up.
“Now, I should tell you, Charlotte Russe has no political leanings, and the place that made these refused to make them for me,” Goldberg said, prompting horrified gasps from the audience and co-hosts.
“They said that their ovens had gone down, all kinds of stuff, but folks went and got them anyway,” Whoopie continued, adding without evidence, “they did not like my politics.”
While Whoopie did not name the shop, it was later identified by Entertainment Weekly as Holtermann’s Bakery on Staten Island, a longstanding family-owned establishment loved by locals.
Jill Holtermann, who owns the bakery, told Entertainment Weekly that “it was not because of political” reasons, but because “we were having trouble with our boilers.”
“I said to Whoopi, ‘I can’t do it right now,’” she told the outlet.
“‘We have so many things going on with my boiler,’ because the building is from 1930, so, when she called me, I had no idea [if we could] be baking everything.”
Holtermann acknowledged that she ultimately was able to make 50 of the treats, and that they were picked up early Wednesday morning for “The View’s” taping. Whoopie had planned to give them out to the audience as part of her birthday celebration.
She reiterated that her reluctance to confirm the order had nothing to do with Goldberg’s political beliefs, saying: “I didn’t want to make a commitment that I can’t carry through,” given the technical issues.
On Thursday, loyal customers in the community reportedly flooded the bakery to show support.
“A steady stream of shoppers came and went from Holtermann’s on Thursday, toting bags full of cupcakes, pies, cakes and pastries from the bakery, which customers said has never shown or expressed a preference for any political candidate,” the New York Post reported.
The brouhaha had still had not died down by Friday, with Holtermann holding a press conference flanked by local elected officials to refute Goldberg’s claims.
Staten Island Borough President Vito Fossella defended the business and explained what happened.
“It’s been here 145 years. They had a boiler that was 60 or 70 years old. And the first week in November, guess what? It went on the fritz,” Fossella said.
“They had it replaced. And the reputation of Holtermann’s is impeccable, so rather than commit to something they couldn’t guarantee, they said, ‘we can’t do it.’ And the person who besmirched, defamed them, took that as an insult to her. Well, get over it. This family will be here for, God willing, another 145 years.”
“We’re here to have Holtermann’s Bakery’s back,” said Councilman David Carr.
“Because the Holtermann family generationally has had the backs of this community.”
Carr said he was happy to see so many supporters there “to send a message to the person who decided that she was too important for a boiler breakdown.”
Holtermann thanked the community for its support and tearfully described how she had been bombarded with calls since Whoopie had made the comments.
“I’m so overwhelmed by the support. Between finding out yesterday, this even happened, getting phone calls and then people coming in and people from all over just supporting us in every way,” she said. “The support has been so overwhelming and I know how hard my family has worked to keep this business alive.”
Some have said that the fact that Goldberg did not name Holtermann’s Bakery means she cannot be sued; but Jonathan Turley says, that is wrong.
There are two reasons cited for why Goldberg cannot be sued.
Her refusal to name the bakery (which she portrayed as a way of denying them favorable publicity since they eventually got the cakes) and that she used the word “perhaps” in her accusation.
The Name Game
The failure to name a party in an otherwise defamatory context is not a defense to defamation.
The strongest and easiest cases to make on defamation are those fitting into a per se category of defamation like calling someone falsely a criminal or the carrier of an infectious disease. Damages in such cases are often presumed.
Other cases are called per quod cases where the harm and damages are not immediately evident or presumed. Rather than be libelous on their face, per quod cases must often be proven through use of extrinsic facts or evidence. In such cases, you need to prove special damages.
It is worth noting that the implied accusation against the bakery could fit into a per se category of impugning business or professional integrity. Goldberg’s statement was clearly meant to impugn the reputation and professional standing of the bakery. It can be argued as defamatory per se by implication.
The fact that Goldberg identified the bakery only as a local bakery associated with these cakes is not a defense. The identity of the bakery was quickly deduced and published widely.
“Perhaps” Defamation
Goldberg could also claim that using the word “perhaps” reduced the statement to a mere opinion. This is a common misunderstanding. Often people will say “in my opinion” and then follow with a defamatory statement. It is not treated as an opinion if it is stated as a fact.
Clearly, a statement of opinion alone is not actionable when “the facts on which they are based are fully and accurately set forth and it is clear . . . that the accusation is merely a personal surmise built upon those facts.” Gross v. New York Times Co., 623 N.E.2d 1163, 1169 (N.Y. 1993).
New York courts look to whether a reasonable person would consider the statement to be conveying a fact. Davis v. Boeheim, 22 N.E.3d 999, 1005 (N.Y. 2014) Moreover, “[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made,” including the forum, to determine how a reasonable reader would view them.” Brian v. Richardson, 660 N.E.2d 1126, 1130 (N.Y. 1995).
Moreover, “an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it… is a mixed opinion” and is actionable. Bacon v Nygard, 189 A.D.3d 530, 530 (1st Dept 2020).
Goldberg was clearly trying to convey that the bakery imposes a political litmus test or engages in political discriminatory practices against Democrats, Trump critics, or liberals. That can have an obviously harmful impact on business for the family-owned bakery.
Even if the bakery had to show malice (of a knowing falsehood or reckless disregard of the truth), it would have a cognizable basis for such a claim against Goldberg and ABC.
It would not be the first time that they had to make such a correction and the audience of the The View does not appear to care about such false or unsupported claims.
In one such incident, Turning Point USA issued a cease and desist letter to ABC after the hosts suggested that it allowed neo-Nazis to join an event. In discussing Turning Point USA’s summit in Florida, host Joy Behar said “Neo-Nazis were out there in the front of the conference with antisemitic slurs and … the Nazi swastika and a picture of a so-called Jewish person with exaggerated features, just like Goebbels did during the Third Reich. It’s the same thing, right out of the same playbook.”
Whoopi Goldberg, then added, in reference to Turning Point USA, “you let them in and you knew what they were, so you are complicit.”
ABC then had the hosts issue an on-air apology. However, they had host Sara Haines do it: “We want to make clear that these demonstrators were outside the event and that they were not invited or endorsed by Turning Point USA.” She added “the hosts apologize for “anything we said that may have been unclear on these points.”
Obviously, it would be up to a jury to balance the earlier standards and the evidence in this case. However, a case could be made for defamation and a court could find that the matter should be left to the fact finder at trial. Goldberg and ABC would be wise to apologize on the air to the bakery on Monday.
