JOEL McHALE: A sweaty court battle with the angry dwarfs

Funnyman Joel McHale is a TV show host who pulls no punches when he takes the bat to celebrities and reality TV stars. But some of his targets are not the kinds of folks who would take his jibes lying low. Folks like Cara and Gibson Reynolds, a married dwarf couple from New Jersey who have attained celebrity status thanks to their adventures in the media spotlight.

Here’s what happened: In 2006, the Reynoldses gave an interview to the Associated Press (AP) for an article about whether it was right to allow parents to create “perfect” babies. The Reynolds couple claimed that they had the right to do so. “You cannot tell me that I cannot have a child who’s going to look like me,” they reportedly said.

Then enter McHale, the irreverent host of The Soup, an E! Entertainment TV weekly show, which runs clips of what it considers the most notable pop culture and TV moments of each week. In a 2009 clip on the show, McHale ran an ad for a fake reality show to be called Fertile Little Tattooed Pageant Parents Who Enjoy Baking.” Calling it the newest reality show, McHale showed the Associated Press photo of the Reynolds couple holding hands on their front porch, and went ahead to describe them as “happy dwarves…that can’t stop procreating.” Ouch! Then to illustrate his fake reality show, McHale altered the AP photo of the Reynolds couple to include images of babies with tattoos and wearing lingerie over their clothing.

The whole thing got the Reynoldses hopping mad and they responded by filing a lawsuit in Philadelphia against pretty much everyone connected with the show: McHale himself; the television channel E!; and Comcast, which owns E! In the lawsuit, the Reynolds couple sought more than $50,000 in damages for defamation and invasion of privacy. Mrs. Reynolds claimed that the piece, which allegedly also showed a woman purported to be her in labor in the bathroom giving birth, was so upsetting to her that she suffered “depression, insomnia, upset stomach, sleep interference and feelings of shame and degradation.”

For their part, the lawyers on McHale side are saying that the Reynolds’ clip was just a “parody” which is protected by the First Amendment and nothing more than that.

So, what exactly is the deal here? Is this defamation or parody? Well, it depends!

First off, thanks to the First Amendment, America is any comedian’s best home on earth and the reasons are obvious. Considering that Americans file more lawsuits than any other people on earth, the First Amendment clearly emerges as a comedian’s best friend and his shield against what is perhaps the most obvious threat he faces on his job: A defamation lawsuit by people who have been rubbed the wrong way by something the comedian has said or done. To be sure, rubbing people the wrong way just goes with the comedian’s territory. And as one might expect, McHale is already leaning so heavily on the First Amendment to save himself from the wrath of the Reynolds couple.

For better or worse, making fun of people the way McHale has done with the Reynolds couple just so happens to be something the law permits. Parody is one of the big things protected by the First Amendment. And whenever lawyers think about these kinds of situations, one of the more unforgettable cases they remember is the one where the Reverend Jerry Falwell sued the pornographer Larry Flynt and his Hustler magazine for $45 million over the cartoon piece where Falwell was portrayed as being drunk and having sex with his mother. Despite the reverend’s bitter objections, the Supreme Court in February 1988 said the cartoon piece was okay as a “parody” protected by the First Amendment. To be sure, the Supreme Court itself found the cartoon piece to be pretty offensive and this had to one of those cases where the Supreme Court literally held its nose with one hand and, metaphorically, used the free hand to wave across a smelly cargo that is stinking up the whole place. The simple reason is that the First Amendment sets for itself the goal of promoting a “free market place of ideas,” including, of course, humor. And we are talking mostly about the “public sphere” here.

So far, from the way the lawyers are talking in this case, a big part of this case will come down to whether the Reynoldses can be regarded as “public figures.” A person can become a public figure by seeking the limelight and becoming a celebrity like Kim Kardashian. The other way someone can become a public figure is maybe by sheer accident, the way it happened with Captain Chesley ‘Sully’ Sullenberger, that guy who saved so many lives by landing that troubled US Airways plane on the Hudson River in New York City back in January 2009. But by whichever way any person gets to become a public figure, there are consequences under the First Amendment, which include attracting the attention of saucy comedians and maybe receiving some pretty unwelcome ribbing from them.

In this very case, if the Reynolds couple can be regarded as “public figures,” then it will become harder for them to overcome the idea that what McHale did was just a parody of life and events in society. Quite simply, the more the Reynolds couple looks like public figures, the weaker their case becomes. One thing is for sure though: As far as public figures go, it may not be so easy to regard a couple like the Reynoldses as regular private citizens anymore, considering that they have made such rather gutsy remarks on a subject like creating “designer” babies, which seems kind of controversial, and perhaps even ahead of the times. To put it differently, it is maybe fair to say that because of their bold foray into the media arena, the Reynolds couple is no longer as anonymous as the grocery store owner on the street corner. Especially not when they got involved with a renowned media organization like the Associated Press on a matter of public interest and (get this!) accompanied by the couple’s photo. so, could it be said that the Reynoldses already injected themselves into the public space? Well, that’s a question for the court.

But wait, there is something else. The Reynoldses lawsuit also contains an invasion of privacy claim against McHale and his co-defendants. Yet, any claim that McHale and co. either invaded the seclusion of the Reynoldses (or perhaps that they exposed private facts about the Reynolds couple to the public) will most likely run into the same problem as the defamation claim. As it is, this is not like the typical invasion of privacy case such as the egregious ones where media organizations, without proper authorization, published photos of one woman nursing a child and of another laying nude in a bathtub. (In comparison to the nursing and bathtub photo cases, the Reynoldses’ situation is probably more like the photo of a couple kissing on a park bench.) Thus, to the contrary, it seems like the Reynoldses were already in the media limelight at the time McHale and his cohorts took a shot at them – McHale didn’t have to pull back any curtains in order to find the Reynoldses. So, it was certainly the prerogative of the Reynolds couple to be controversial but controversy also brings publicity and with it the attention of comedians.

Still, there is more to this case than just the folks involved and winning or losing this kind of case is something that would affect more than just the people who are in court here spending money on lawyers. For instance, if the Reynolds couple wins, it could become pretty dicey going forward to make jokes about what someone else is doing or saying for fear that the joke might rub that person the wrong way. In other words, “parody” as we now know it won’t be the same again. Needless to say, such a win will be an awesome thing for the Reynolds couple and other people who have been pissed of by jokes made by comedians.

But not so fast! The First Amendment stands in their way and their odds of winning seem rather long, at least longer than the odds of winning this debate by comedians like McHale. For starters, attempting to punish somebody for making a satire of actual events in the life of society isn’t exactly the best way for the First Amendment to promote a “free market place of ideas.” So, perhaps it happens that what the Reynolds couple is looking for in this lawsuit may not be the kind of thing that the First Amendment stands for or would be eager to approve. (Jerry Falwell learned this bitter lesson when he sued Larry Flynt.)

In the end, no matter how this case turns out for the Reynolds couple, one thing is for sure: Life in a free speech society like America can be a bitch sometimes, because of all the [offensive] things that the law allows other people to be able to say never get punished for. Yet, on the flip side, the Reynolds couple will have made their point at least: McHale and co. pissed them off and the couple dragged team McHale into court and made them sweat the stuff. Talk about “messing with the wrong marine!”

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