JAY LENO: ‘Woulda Coulda Shoulda’ He Pay for Defamation?

jay_leno_photo 2Jay Leno knows a thing or two about the occupational hazards of a comedian’s work. In the provocative new book Comedy Under Attack: The Golden Age and the Headwinds, somebody said that stand-up comedy is “the most fun anyone can have with their clothes on.” At least until somebody else gets offended in which case a couple of things could happen to the offending comedian: Perhaps a mobster in the audience would corner him in the hallway near the bathroom and threaten to break his legs unless he admits he’s not funny. Or maybe he’ll simply get sued in court if he’s lucky. Well, let’s just say that Jay Leno has better luck than Jimmy Brogan: he’s getting sued instead; for defamation.
Here’s what happened:

First, a former American Airlines flight attendant named Louann Giambattista sues her former employers claiming that she was wrongly accused by her co-workers of smuggling her pet rats onto the plane using her underwear or panty hose. Then Leno picks up the story in a segment of The Tonight Show that he calls “Woulda Coulda Shoulda.” There, he sets up the story and invites three other comedians to say what’s on their mind about it. What followed wasn’t exactly flattering to the former flight attendant: there was a remark about her sitting the rat in her ‘cooch’; then another about her enjoying the idea of having ‘creepy things’ in her underwear, followed by a suggestion that she ‘hook up’ with Jim Norton who made the remark; plus yet another remark suggesting that she ought to be using a ‘rabbit’ like other women instead of a rat. (‘Rabbit’ is a brand of vibrators for masturbation.)

Taking offense at all this, Giambattista sued Leno himself, The Tonight Show and NBC Universal for defamation, claiming that that the joke falsely accused her of “engaging in bestiality and sexual misconduct with a rat.” She alleged that the jokes amounted to ‘sickening outrageous and disgusting” attacks on her character and that Leno essentially enabled the defamation by indulging those comments and laughing at the jokes. Giambattista claimed that as a result of the millions of folks who saw the joke, she and her husband have not only become “pariahs” in their community but that their sex life has also been damaged due to her husband experiencing severe “sexual dysfunction” from thinking back to the way Leno had portrayed her as a ‘sexual deviant.” (Not that she needed to, but curiously, she didn’t choose to join any of the comedians who made the offensive remarks to her lawsuit.)

So, do we have something serious here or is this just another weak defamation shot aimed at a comedian by someone who just can’t take a joke? Well, not if she can win.

In a defamation action, the idea is that the defendant (the person being sued) has damaged the reputation of the plaintiff (the person suing) in the community by the use of false statements. Usually, as part of the protest against the defendant’s attack on his or her reputation, the plaintiff tags on a claim for money damages. This is pretty much what the plaintiff here (Giambattista) is trying to do against Leno and his side, as she claims damages against them plus her lawyers’ bills and more.

But then, why is she suing Leno in New York rather than in Los Angeles where Leno lives and does his show. This is a question that some comedy fans have asked this writer and they have wondered whether she can actually do that. The short answer is that, yes, she can! As the law stands, one of the reasons why a plaintiff in a civil action, such as defamation, can sue a defendant at a particular location is that that location is where the wrongful action complained about took place. This means that if Leno’s actions in California damaged Ms. Giambattista’s reputation in her neighborhood in New York, then she can sue him in New York. Besides, we’re talking about a late night show that is seen across the country as well as online. Now how about we stretch the question a bit further since we live in an Internet age: What if Gambattista lived in Australia and her neighborhood folks over there saw Leno’s show online? Can she sue Leno in Australia for damaging her reputation? Well, again, the answer is yes, at least in theory. Of course, as a practical matter, it’d be so much easier to file the lawsuit in the particular country where the defendant lives.)

Anyhow, the case was filed in New York (not Los Angeles or Australia) and will go forward in New York. For starters, because Leno is a comedian and she is suing him for defamation, one of her biggest obstacles would be to prove that Leno’s statement was ‘false’ in the way that the law of defamation demands. In this area, we’re dealing only with ‘statements of fact’. We’re also talking about the impact of the statement on those who heard it.

As everyone probably understands, a ‘fact’ is something that can be proven to be either true or false. For example, whether a particular car is red or black is a matter of fact since we can tell that from simply looking at the car. Same deal with somebody’s height: this is a matter of fact since it can simply be determined by measuring the person. However, statements like whether someone is a jerk or is a really great guy are not exactly things that can be shown to be true one way or the other. One man’s jerk may be another’s hero. These kinds of subjective assessments or statements are regarded as ‘opinions’ rather than ‘facts.’ (Facts are objective in nature.) So, there are facts and there are opinions. In defamation court, facts are in and opinions are out. Simple!

Aside from facts and opinions, the other big question in defamation court is whether statement itself was meant to be taken seriously or whether it was just something being said in jest or humor and so could only have been understood by its listeners in that way. The reason here is pretty simple: If those who heard the statement thought it was just a joke and didn’t take it seriously at all, then the notion that the statement caused them to think less of the plaintiff and to treat her as a pariah just won’t wash. Besides, if the defendant in any defamation case would have simply made the statement to the plaintiff alone, and nobody else heard it, there will be no grounds for a defamation action.

So, where does all the stuff above leave our case here? Well, it’s fair to say that when we combine the idea of an opinion and a joke, they add up to a long and difficult day in court for someone like Giambattista who is trying to pin a defamation rap on a well-known comedian like Leno. Many of these kinds of attempts against comedians have failed in the past and this one here isn’t exactly looking much different from the rest. To be sure, most folks in Ms. Giambattista’s position would be pretty offended by the crude remarks lobbed at her during that segment of Leno’s show. All the talk about ‘cooch’, ‘creepy things’ in her underwear and use of ‘rabbits’ are obviously not pretty things to be said about a respectable lady on national TV. But then ‘context’ is very crucial in a defamation case: Leno is a comedian and as the logic goes, he apparently meant all that stuff as a joke and most reasonable folks who saw or heard about that segment of his show probably understood it as a joke as well. An offensive joke is still a joke, anyhow.

Yet the fact remains that life is hardly so black-and -white in all defamation cases. Sometimes the way jokes and facts mix with each other can get pretty dicey, especially when what was said is the kind of stuff that can be shown to be true or false. There is an old rule in defamation cases that no one is allowed to ‘murder’ somebody else’s reputation in jest. In fact, in a case from Australia not too long ago, a comedian had said on a sports television show that a married woman had had an affair with a football player on her husband’s team; only problem is, it wasn’t true. When push came to shove in court, he attempted to say that the statement was meant as a joke. But that was rejected and he lost. Plus, he received no help from the fact that the show itself had a reputation for regularly fielding humorous remarks from guests. By the way, if the Australian comedian would have simply described the woman as a bitch or something, for instance, then as offensive as that statement might be, it would simply be considered as an ‘opinion, meaning that she likely wouldn’t have been able to nail him for defamation. But he crossed the line instead.

Obviously, since Leno’s actions in this case are vastly different from what happened with the overseas comedian above, the idea that comedians can sometimes get in trouble for defamation will probably come only as cold comfort to someone like Giambattista. Nothing that Leno or any of his guests said on his show about her even approaches a factual statement that can be proven to be true or false. To the plaintiff’s disadvantage, this all puts Leno safely back in the protected area of jokes and opinions where comedians are literally untouchable in defamation cases.

In the end, the outcome of a case like this one is quite predictable. Many of these cases follow a familiar pattern in the way they fall by the wayside. Fair or not, comedians seem to benefit the most from the ‘free speech’ protections in American courtrooms, whether they are attacking public figures or whether they are in the more risky situations where they are attacking private persons. The plaintiff’s case here seems to fall in the cookie-cutter category where there are no aggravating circumstances that could make a difference to the outcome in court. In such situations, it is probably not the best use of time for anyone to be suing a comedian for defamation. Of course, if the person (plaintiff) has other goals in mind than actually winning the case, then all bets are off.

In our case here, it is interesting to notice that Giambattista’s husband’s job in the food industry also figures in the mix: They are saying that “the allegations against his wife have called into question whether he should be preparing food after contact with rats.” Well, it is difficult to see how Leno’s liability for defamation, even if it exists, could be stretched as far as that. But that is where we are with the allegations in this case. Whatever the plaintiff’s motivations in this case, it is obvious that suing a huge celebrity like Leno could yield great publicity for anyone interested in the limelight. And if such a person is willing to pay his or her lawyers for their time, (who knows?) the game may well be worth the candle.

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