Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

This is a case about a failed collaboration between two odd ducks on a project that is alleged to have damaged the reputation of one of them. The one that is suing, as one might imagine. Enter Roy Moore and Sacha Baron Cohen. One, the plaintiff, is a Republican maverick who fell short in his senate bid in Alabama a few years earlier and the other, the defendant, is a gadfly funnyman famous for pranking the unwary into embarrassing behaviors. Now they walk into a courtroom for their hour of reckoning on their failed collaboration.

First, here’s what happened: sometime in 2018, both parties took part in an episode of the defendant’s Showtime TV political satire series Who is America?  In a segment of the said episode, presented in an interview format, the plaintiff Moore, who had been dogged by sexual misconduct allegations, including child molestation accusations, willingly appeared as himself whereas the defendant Cohen posed as an Israeli Mossad agent. During the interview, the defendant produced an instrument he described as a pedophile detector which is programmed to beep around pedophiles. The instrument beeped when the defendant waved it in front of the plaintiff but did not beep when the defendant then waved the same instrument in front of both himself and another person who was present at the interview.  In response, the plaintiff walked out in protest, denying any and all involvement in child molestation.

In the present lawsuit, pending in federal court in New York, the plaintiffs, Roy Moore and his wife, allege defamation, intentional infliction of emotional distress and fraud, owing to Cohen’s portrayal of Moore as a pedophile, and therefore seek damages totaling $95 million against the defendant as well as the media entities Showtime and CBS.

For starters, this isn’t your typical case where somebody who is at arms-length is suing a comedian for defamation and other harms related to it. (Defamation here, simply put, means that the defendant has damaged or injured the plaintiff’s reputation in the community through a false statement of fact.) In such cases, as experience shows, it is pretty difficult to win in America because of the way the First Amendment guarantees free speech to everyone. For comedians who talk for a living, and sometimes, perhaps often times, talk in a way that offends other people, the free speech protection is a pretty big deal. And because they are comedians, most people listening to them often think they are making a “joke” rather than stating a “fact” (whether true or false) about someone else.  And, of course, when the person suing is also a “public figure”, like Roy Moore, a former chief justice of Alabama and a candidate in a high-profile national campaign for the US. Senate, then the obstacles to winning are even higher because the plaintiff will have to show essentially that the defendant either knew that the statement was actually false or that the defendant (recklessly) did not care that the statement was probably false. This is the so-called “actual malice” rule.

Predictably, as any comedian would in these situations, Cohen did file a motion asking for the early dismissal of the case but the court rejected his request and waved the case on to its subsequent stages. This despite the fact that Moore had signed a “release” in favor of Cohen and his co-defendants at the start of the parties’ collaboration on the project.  So why does this case seem something of a different animal and why has it already lasted longer than your typical defamation case against a comedian?  

First, one should note that the parties in this case actually collaborated on the project in question, unlike the ordinary case where a comedian did something on his own that is alleged to have “harmed” the person suing him. And the release in question was signed prior to the collaboration, as one might expect. And this is where it gets complicated because the defense that a comedian is just making a joke has been tainted in this case by an allegation of fraud against the comedian: Moore claims that his signature on the release “was obtained through fraud”, thus making the release “void and inoperative”.   To explain this, Moore said he was conned into doing the interview by Cohen putting on a disguise and posing as an Israeli anti-terrorism expert and also that he had been falsely told by the defendants that he was being presented with an award for his support of Israel.

Thus far, Moore’s argument is doing quite well in court, judging by the dismissal of Cohen’s motion, and this means that deciding whether there was in fact defamation or not will have to wait until the court first decides whether the agreement (the release) between the parties can be enforced and if so in whose favor. If Cohen is right, then that’s likely the end of the road for Moore because by signing the release he’d already exonerated Cohen for whatever loss or damage arises from his participation in the TV program.  Of course, if, however, Moore is right, then the agreement will not protect Cohen and his co-defendants Showtime and CBS, who will then have to defend themselves against Moore’s big money claims for defamation and emotional distress in the normal manner in which such cases are litigated in court.   

Now, if the case goes forward to a likely jury trial, how will the jury look at it? Well, this being a defamation case, Moore’s biggest hurdle, as suggested above, will be getting the jury to look past the fact that Cohen is a comedian and thus to think that he is doing anything other than just making a joke. That, plus the fact that Moore is a “public figure” would seem to cut in Cohen’s favor. Yet the determination of that matter by the jury will be affected by a few factors on the minus side for Cohen: for starters, an allegation of fraud consisting in disguising one’s actual identity to a collaborating partner isn’t a good look. Plus, when it comes to the question of “malice”, it won’t help Cohen’s side that Moore had previously warned them not to air the allegedly “defamatory” segment but they did so anyway, meaning that they intended to actually air it and if it turns out that it included false statements of fact, then just because Moore happens to be a public figure won’t help Cohen’s side.   Besides, Moore’s claim of fraud, for instance, will be decided on different principles which are more neutral than the defamation claim, where the law is much more comedian-friendly.

In the end, though, Cohen, as a comedian, still seems to have better-than-even odds of victory in this case, at least on the defamation claim; yet he will come to find that the more a comedian gets away from the traditional boundaries of comedy and wanders into dicey areas like punking folks via questionable tactics, the more that comedian loses the generous protections afforded him by America’s First Amendment. Especially when the comedian is dealing with people of means, who can afford to make their vengeful point, winning the lawsuit itself be damned. (Already, the lawsuit has been on since 2018; has been re-located from Washington DC to New York, where presently a nasty war of words is raging between the parties’ lawyers over alleged “discovery” misconduct, with threats of sanctions on both sides.)  Describing Cohen’s actions against his clients as “malicious” and “despicable”, Moore’s lawyer, the scrappy veteran litigator Larry Klayman vowed: “great harm has been done to my clients, which must be addressed and remedied.” Well, so far, as an adversary, Roy Moore is proving not to be an ordinary plaintiff, the lesson being that Cohen can still get hurt even if he wins the lawsuit.

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The Predicament of Mike Ward: An American Perspective on Canadian Comedy

What’s the difference between a Canadian comic and his American counterpart? Simple answer: location, location, location.

The brash Canadian comedian Mike Ward has had quite the unpleasant experience in his march through the comedy landscape of his country. From all indications, if he thought his native Canada was a place where a comedian could safely ply controversial material, he figured wrong, it seems. And for good measure, such a comedian could also find himself in the poor house should some in his audience decide to take him before the authorities.

But before getting into how Canadian and American comedy stack up against one another, it may be well to briefly recount the Mike Ward story:

In 2010, Ward, in a series of routines he performed at his shows in Canada, attacked a disabled kid named Jeremy Gabriel, whom he denounced as “ugly” and lamented the fact that the kid had not yet died. (Gabriel, 13 years old at the time, was born with a condition known as Treacher Collins syndrome which left him with a deformed face and skull. At the time of Ward’s attack, Gabriel had become something of a local celebrity in Canada’s Quebec province for his singing ability, including singing with Celine Dion as well as singing for the Pope in 2006. Ward claimed that he had initially supported Gabriel’s good fortune, on the assumption that the world was coddling him because he would soon die. Ward said that he felt duped when years had passed and Gabriel was still going strong with his singing fame. In reaction, the comedian said he went on the Internet to find out exactly what Gabriel was suffering from. Ward said he was surprised at what he discovered: “You know what it was? He’s ugly, godammit!”

Long story short, Gabriel and his family sued Ward before the Quebec Human Rights Commission for allegedly “hurting, vexing and humiliating” him and as well as for damaging his [Gabriel] confidence and singing career and causing him to be mocked at school. In its 2016 ruling, the Commission said that the comedian’s joke violated Gabriel’s right to dignity, honor and reputation as well as his right to equality and to be safe from discrimination. As a remedy, it penalized Ward with a total fine of $42,000 (consisting of $35,000 to Gabriel and $7,000 to his mom).

The Commission’s ruling outraged Ward and many of his supporters in the comedy community, He promptly set up a crowdfunding campaign and launched an appeal against the ruling. Speaking on behalf of other comics, Ward said: “If the judgment is maintained, no one will be able to dare to be a stand-up comic, because normally you make fun of things that are controversial, otherwise it’s not funny. …If anything that’s controversial can authorize someone to say, I was hurt, I’m going to court, then we’re finished.” Then he tagged on an interesting analogy: “To bring a comedian to court who does dark humor, for a trashy joke, is like giving Vin Diesel a speeding ticket for driving fast in [the movie] The Fast and the Furious.”

Now, let’s consider a different scenario, this time involving Canada and the U.S., its close neighbor to the south. Both countries are democracies and open societies. So, suppose the Ward situation occurred in the US, will the comedian’s fate be any different? In other words, if Ward would have appeared at some comedy venue in America and viciously attacked some disabled kid, will he face a peril to his career similar to what happened to him in Canada? Well, the short answer is: Probably not!

For starters, considering the central role of the First Amendment’s free speech guarantee in the conversation in America’s public square, there would seem to be no room for an agency like the Quebec Human Rights Commission. Fact is, the agency’s watchdog role carries way too much potential for censorship than the First Amendment could live with. To the blessing of comedians in America, controversial speech oddly seems to enjoy enormous protection from censorship. To say things that hurt somebody else’s feelings or even things that are very cruel are allowed in America’s social conversation. Needless to say, Americans get it clearly that the “free society” they pride themselves in can also be a pretty uncomfortable society where some of the most offensive things ever may yet be safely said. Pretty much everything is allowed, other than a few situations like where somebody’s speech could be viewed as inciting violence or be considered as “fighting words” (the sort that would likely draw a violent reaction from the person to whom they are addressed).

So, in the above scenario, merely attacking a disabled kid, however viciously and however tacky the action might seem, would not be reason enough to find legal liability against a comedian and thus to impose a punishing fine upon him. In short, the Mike Ward ordeal is simply a Canadian story that is hard to imagine in a place like America.

However, given the Gabriel family’s other allegation that Ward damaged Gabriel’s reputation by his joke, plus the Commission’s references to Gabriel’s honor and reputation in its decision, some have wondered why a good old-fashioned defamation action cannot be successfully pursued against Ward even in an American court. Well, not much luck here, either. And the reason is simple enough: Statements that a professional funnyman made to audiences who understood said statements as a joke would not qualify as the kind of false statement of fact that would damage somebody else’s reputation, which is the very point of a defamation action.

Yet just because comedians south of the border are allowed by the law to be offensive to others doesn’t mean that an American comedian whose stock in trade is the plying of unnecessarily “outrageous” material will enjoy a smooth sail to a comfortable career. In an era of political correctness and cancel culture, there is the law and then there is the court of public opinion, two different venues. Whereas the law may not take an outrageous comedian’s money from him by way of court fines, for its part, the consuming public may refuse to give him any money at all by simply not patronizing his comedy. This is a powerful reality that neither Ward nor any comedian in America or Canada for that matter can afford to ignore.

Still, in America, fortunately for comics, political correctness and the law continue to have some good degree of separation from each other unlike in Canada where they currently appear to the merging and this surely can’t be good news for comedy. As the Mike Ward situation demonstrates, it seems that when speaking of the very survival of a comedian’s career, the whims of political correctness and cancel culture are more manageable hazards than the blunt instrument of a court order directed at the comedian. As it happens, an unfavorable court order is no laughing matter, even for a funnyman.


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Free Speech versus Privacy: British comedian Louise Reay sued by ex-husband

As it happens, comedians tend to have extroverted personalities and considering the nature of their jobs, that isn’t exactly surprising. Yet, they also have a private life and sometimes they actually do draw some of their comic material from the experiences of their private lives just like their other experiences. Problem is, other people in the private lives of comedians may not be so extroverted themselves and so may rather want their private business kept out of the knowledge of the public. So, as one might expect in such situations, comedians do sometimes actually get sued by aggrieved family members who feel victimized when comedians wash domestic laundry in public. The latest episode in this sort of saga comes from Britain where comedian Louise Reay and her ex-husband Thomas Reay are currently embroiled in a defamation lawsuit that has been framed as a free speech case, despite being accompanied by some menacing invasion of privacy allegations.

First, here’s what happened: In 2017, comedian Louise [Beaumont] Reay, put together a 50- minute show titled Hard Mode in which she purported to discuss issues of censorship and authoritarianism with references to China and the BBC. However, the show also contained references to personal details of her life with her ex-husband, Thomas, the plaintiff in the current defamation lawsuit. Upon learning of the contents of the show [presented at the Edinburgh Fringe Festival and in London], Thomas sent Louise a written complaint demanding that she stop talking about the said matters in the show. He subsequently filed a lawsuit against her over the contents of the show, alleging defamation, invasion of privacy and data protection, and sought £30,000 in damages plus costs and an injunction demanding that she refrain from making [publishing] further statements about him.

The plaintiff’s side stated that after clearly identifying him [the plaintiff] both verbally and in still and moving images, the defendant-comedian then proceeded to present private information about the plaintiff and his relationship with the defendant which pushed “the entirely false suggestion” that his relationship with the defendant was “an abusive one.”

Given how commonplace it is for comedians to talk about their personal lives in their work, this lawsuit is such a big deal especially in regard to how a defeat for her in this case might impact the work habits of comedians who think it permissible and safe to include personal life stuff in their material. There is an undeniable chilling effect here, whatever the extent. Perhaps perceiving the significance of this factor, the defendant-comedian Louise Reay, the laureate of the 2015 Alternative New Comedian of the Year award, has opted to invoke the camaraderie of her comedy peers by framing this case as a free speech matter of immense implication for the comedy community. Thus, she has set up a crowdfunding website (GoFundMe) for her legal defense and her comedy peers have rallied around her.

“As standup comedians I believe it’s the very definition of our job to talk about our lives and social issues, so this has become a free speech issue and free speech means everything to me,” she said on the crowdfunding site.

Curiously, though, despite her free speech stance, upon initially receiving his written protest, she did remove the offending references to her husband in subsequent presentations of the show.

(By the way, in plain language for simple folk, liability for defamation arises from the making of false statements of fact that injure the victim’s reputation in the community.)

But how will her free speech defense play out in this defamation lawsuit? Will it fly any?

Well, for starters, it is worth noting that her free speech defense to the defamation lawsuit would have fared way better in an American courtroom than in a place like Britain thanks to America’s world-famous First Amendment whose goal is to ensure that debate on matters of public interest is “robust, uninhibited and wide open.” Yet even in America, in order to enjoy such free speech protections, the offending statements must not be knowingly or recklessly false. And of course, they must relate to discussions about matters of public interest or concern public figures and officials. Since her ex-husband, the plaintiff, presumably, is a private person and the facts about his life and their failed marriage are not matters of public interest, she likely would have had trouble mounting a free speech defense over here in America if she would have been an American defendant. So, long story short, her case probably would have been decided over here in America the same way the British courts are going to decide it, that is to say, like a regular defamation case with no frills.

So, without any First Amendment-style interventions, how will this comedian’s available defenses play out in an old-style defamation court litigation?

Well, from all indications, let’s just say there is some heavy lifting to be done. To this comedian’s peril, it seems that while addressing the vexed issue of censorship in society, she rather chose to take her eyes off the ball for a bit and took an unrelated and quite irrelevant dig at her ex-husband. Yet, being a comedian in a situation such as this, her most obvious line of defense seems to be an assertion that this whole thing was simply a joke being made by a comedian. Her other defense [already foreshadowed in some of her statements] is something of a de minimis claim, namely, that we’re simply dealing with a mere two-minute portion of a 50-minute presentation. In perspective, if she can prevail on the first point about it being but a joke, there will be no need to try to rely on the second point about it being but a rather tiny portion of the entire show. Conversely, if she loses that argument, then the two-minute factor won’t help her.

However, for her to win the argument on the “joke” front, it has to be clearly shown at least that the references to her ex-husband were both intended and understood as a joke by its listeners or audience. Only problem here is, as the plaintiff’s side claims, is that he was clearly identified in both still and moving images which were then accompanied by factual statements about him and his marriage to the defendant which portrayed him as an abusive person. The plaintiff alleges that these statements of fact were false and thus defamatory. Question is, will the judge agree with the plaintiff’s version of the matter or will he instead think that the statements were just a joke and would have been understood by reasonable people who saw the images and heard the statements as just a comedian making a joke. (By the way, rare though it may be, someone can still be found liable in defamation for a joke because as the old saying goes, one is not allowed to “murder the reputation of another in jest”.)

And then, there is the invasion of privacy claim which is a straight up tort matter that stands separate and apart from the defamation claim. This concerns the right of people to be left alone in their personal spaces. And in terms of a plaintiff proving somebody’s liability, this claim seems to be less complicated than the defamation one where arguments about free speech and opinion issues could muddy the waters and create uncertainty. Not so here. In a situation such as the present case where it is alleged that, without the plaintiff’s consent, the show [Hard Mode] presented personal information about the plaintiff [Thomas] together with still and moving images of him plus other information about what he did during the marriage, there seems to be enough ground for the court to find an unlawful invasion of privacy. That is, if the allegations are in fact proven. Of course, where it is shown that somebody’s privacy has been invaded by another, the courts can always issue “injunctions” to get the offender to stop doing the things complained against.

Also, some might be wondering whether it helps her overall case that in subsequent presentations of the show, she did yank the offending portions of the show upon receiving the plaintiff’s initial complaint or protest about the matter. Well, aside from showing that she maybe realized that she was acting wrongfully, the removal of the said offending portions will probably not absolve her of liability for defamation and invasion of privacy if such liability is otherwise found to exist. More likely, in such a situation, it will be a factor in her favor when the court is assessing what damages to award to the plaintiff.

In the end, whichever way this ends for award-winning comedian Louise Reay, it will likely rank among the most serious cases anyone has yet brought against a comedian for family-related personal information contained in their comic material. Certainly, it is pretty smart of the comedy community to be paying such close attention to it. To be sure, this is a genuine concern that exists on both sides of the Atlantic.

 

(***Breaking News: A sassy new genre of comedy just arrived on the scene ; it’s called  Muckraking Comedy.   Stay current and read all about it at Paley Matters. Enjoy!  https://paleymatters.org/the-brave-new-world-of-muckraking-comedy-feeb86ec4115)

The Defeat of Matt Hoss: A Copyright Lesson for Comedians

Nowadays we live in a new era of comedy where copying a comedian’s work can seem like removing money from his pocket. Needless to say, this is the sort of situation where the aggressor can expect some pretty hard pushback. Yet, as comedian Matt Hoss (full name: Matt Hosseinzadeh) learned not that long ago, just because a comedian thinks that somebody else has crossed the line does not make it so – at least as far as the law is concerned.

Now, here’s what happened: In May 2016, the edgy comedian Matt Hoss (aka “The Bold Guy” or the “Pick-Up Artist”), filed a copyright violation case in federal court in Manhattan against Ethan and Hila Klein, the producers of the YouTube Channel H3H3 Productions. Hoss essentially alleged that the Klein duo by taking way too much of the contents of his earlier video titled “Bold Guy vs Parkour Girl” for inclusion in their latter reaction video (a 13-minute work which sought to satirize his said earlier video) had thereby committed a violation of his copyright in the video. Hoss’s lawsuit also tagged on some less significant claims against the Kleins, including defamation.

After the Klein team, a married duo, got word of the lawsuit out to their more than four million subscribers, they responded by floating a GoFundMe campaign that reportedly netted over $160, 000 for the Kleins’ legal defense of Hoss’s lawsuit. The cause celebre here? Well, it’s “fair use” concerns on YouTube.

Explaining his lawsuit Hoss claimed: “You can essentially watch my film by watching their video. That frustrates the entire point of copyright. Critiquing or commenting on a film should not, and almost always does not, use virtually the entire work.” Well, let’s just say the court didn’t see it that way; otherwise, Hoss would have had a better day in court rather than a big defeat.

Indeed, the decision of the federal court in the case turned out to be a big win for the “fair use” folks and their crowdfunding campaign: In late August, the court ruled that H3H3’s actions were protected under the “fair use” doctrine. The judge explained that a review of H3H3’s reaction video showed that it amounted to a critical commentary upon the Hoss video and that it was not a market substitute for the Hoss video, contrary to Hoss’ claim that one can watch his film by simply watching the reaction video.

To be sure, the defeat of Hoss’ lawsuit isn’t at all surprising. In a place like America where the First Amendment is a big deal and offers protections to both comedians and non-comedians alike, a doctrine like “fair use” serves as an important tool for the promotion of free expression and debate in the public square. Some critics, though, who perceive H3H3 as bullies, have frowned upon the fact that even sometimes spiteful actors like the Kleins are granted free speech protections for their offensive work. But, oh, well, this is America and the First Amendment is just doing its job in our national conversation. In this copyright context, this means that a person using somebody else’s copyrighted work doesn’t necessarily need the permission of the owner of the earlier work. Nor does the person have to say something nice about the earlier work. They can be as snarky as they want to be. As a matter of fact, such a person is protected as long as he is traveling along the lane of commentary upon or critique of the said work.

Anyhow, from the court’s decision, it is clear that Hoss fell into a common error among copyright plaintiffs regarding the exact extent of the copyright protection that their work enjoys. The problem is made worse by the fact that assessing a doctrine like “fair use” in any litigation is typically a “fact-intensive” inquiry, as the lawyers would say. It is generally a case-by-case situation, meaning that no set-formula exists beforehand for making the call in each case. So, one thing to keep in mind is that just because somebody has copied another person’s copyrighted work for inclusion in their own production does not mean that they’ve run the red light yet. Not even in a situation where the second work has copied a whole lot from the first work, as noted above. As the court made clear, the second work is allowed to use as much of the first work as is necessary to accomplish what the court called the “transformative purpose of critical commentary” of the first work.

In practical terms, determining how much is needed for such purpose depends both on the “context” of the work and the “utility” of the portion copied. In plain language, the second person is allowed to copy as much as he needs in order for the portion copied from the first work to make sense in the second work; of course, by itself the second work now represents a transformation of the first work. Incidentally, speaking of “reaction videos” in a battle between YouTube channels, it bears noting that if the second work simply copied and presented the first work to its viewers with very little or no commentary or criticism of the first work, then it’s difficult to say that it is a “transformation” of the first work.

In such a situation, where no transformation is present, the second work would be putting itself in situation where it literally becomes a substitute for the first work in the market place. In our case here, it would mean that folks looking to watch Hoss’s video might as well just watch H3H3’s video instead. This sort of situation is a no-no and goes against the very purpose of copyright protection. If that would have happened in this case, it would have resulted in a likely win for Matt Hoss. But the court said it didn’t.
As noted above, Hoss also made a few other claims that were less of a big deal in this case, including the claim of defamation which were decided against him. For instance, the defamation claim was simply tossed out because the statements he alleged as defamatory toward him were ruled as pure statements of opinion by Ethan Klein which had no basis in fact. The actual meat of his case was always the copyright claim.

In the end, the simple lesson here is that copyright protection is not intended to give the owner absolute dominion over the copyrighted work, meaning that not every case of copying amounts to a copyright violation. When the second work can be said to represent a transformation of the first work, there likely is no violation. But whether or not lawful transformation has occurred in each situation is a matter for the courts to decide on a case-by-case basis, as explained above. Yet one thing is for sure: someone who is simply lifting somebody else’s work without adding anything to it is, well, probably running the red light of copyright law.

 

Twitter: @ocarls

Fighting The Daily Stormer: When a Comedian Sues a Rogue

When a comedian sues a non-comedian for damaging his reputation, one can expect the sort of unusual scenario where ‘the usual suspects’ become the ones trying to restore sanity. So, as the hunter becomes the hunted and people wonder just how well the shoe will fit on the other foot, the recent case of Muslim comedian, lawyer and left-wing political commentator Dean Obeidallah against the controversial right-wing neo-Nazi website The Daily Stormer offers us a window into the reality of that tricky situation. But first, here’s what happened:

 This past June, Obeidallah, a SiriusXM radio host wrote a piece in The Daily Beast in which he queried why President Donald Trump wouldn’t use the phrase “white supremacist terrorism” to describe the activities of right wing extremists. According to Obeidallah, the defendant website responded by fabricating tweets that appeared to have been written by Obediallah himself and posting an article titled” Dean Obeidallah, Mastermind Behind Manchester Bombing, Calls on Trump to Declare Whites the Real Terrorists.” This was then followed by a torrent of online abuses directed at Obeidallah including even death threats. Incidentally, Obeidallah and The Daily Stormer appear to be old enemies.  Two years earlier, Obeidallah had written another piece in The Daily Beast in which he urged the GOP to disavow the growing support that then-presidential candidate Trump was receiving from right-wing extremist groups including (you guessed it!) The Daily Stormer.

In his lawsuit against The Daily Stormer and its publishers, chief among them (its public face) Andrew Anglin, Obeidallah seeks damages against the website for libel and intentional infliction of emotional distress.  

 Now, before even talking about Obeidallah’s chances of winning this defamation lawsuit, it is worth considering something else, namely, that given the sort of folks that he’s dealing with here, it increasingly looks like worrying about winning the case may well be the lesser of his problems. In fact, his biggest headache at this point is actually finding the people he is suing. Andrew Anglin and The Daily Stormer, for all their caustic advocacy of hate and extreme right-wing rhetoric, are notoriously shy when it comes to showing up to defend their position in court. And, whenever push comes to shove, finding them to serve them with court papers can often seem like looking for a tiny needle in a huge haystack.  “Good luck finding them,” one might well say to anyone in Obeidallah’s position looking to serve Anglin and his website with court papers.

This past April, for instance, the Alabama-based nonprofit legal advocacy group, the Southern Poverty Law Center (SPLC) tried to serve The Daily Stormer with court papers after suing them for intentional infliction of emotional distress and invasion of privacy for allegedly orchestrating “a troll storm” that literally sought to destroy the life Tanya Gersh, a Jewish real estate agent in Montana. (Supposedly, the Stormer’s actions were aimed at punishing Ms. Gersh for engaging with the mother of white supremacist leader Richard Spencer.) Well, let’s just say that the report card on the SPLC’s attempt to serve Anglin with court papers in his native Ohio, at one point, read like any plaintiff’s nightmare: Seven different addresses and 15 return visits yielding nothing, plus lots of undelivered certified and regular mail service. (At one point, there was even a report, albeit unsubstantiated, on CNN that said Anglin had moved to Nigeria.) Tough luck!

Long story short, Obeidallah’s opponents are not the easiest guys to find when it comes to serving court papers. Now let’s get to the law on Obeidallah’s claims against them.

First, the defamation claim involving injury to the plaintiff’s reputation is fairly easy for anyone to understand. To call anyone a “terrorist” in our post- 9/11 world is a terrible thing. What’s even worse is to say that of a Muslim person in a place like today’s America. Under these circumstances, the damage to the plaintiff’s reputation couldn’t be more self-evident. For someone in the public eye like the comedian-plaintiff in this case, whose career survival and success depends to a large extent on his public image and his acceptance by the public, the label of “terrorist” is like a dagger to the heart of his standing and reputation in the society. Of course, under the law, since truth is a defense to a defamation claim, a defendant can still defeat a defamation claim by showing that what he had said about the plaintiff is actually true. But, alas, such a defense is not available to The Daily Stormer in this case because what they said of Obeidallah here is an absolutely false and entirely made up tale with the clear purpose to ruin his reputation.

Yet, since we’re in America, the First Amendment could always come up as defense in a defamation case, for whatever it is worth. Meaning that the neo-Nazi website here, for instance, might attempt to claim that Obeidallah is a public figure and that they were simply exercising some First Amendment free speech right on a matter of public concern. Now, speaking of public figures, Obeidallah may not be a familiar person to most people on the streets of America, but he is by no means merely the sort of anonymous [private] Joe out there who rides the subways of New York City on a routine basis. To the contrary, he’s actually something of a controversial figure who takes on public causes. For instance, in the fall of 2015, he was one of the ringleaders of a group of comedians, including Negin Farsad, who won a lawsuit against the Metropolitan Transit Authority (MTA) allowing them to advertise their documentary “The Muslims Are Coming,” in the New York City subways.  In any event, public figure or not, any First Amendment defense attempted by The Daily Stormer in this case will all but flop on the simple ground that their statement against Obeidallah was “knowingly” false.

Now, how about the claim of intentional infliction of emotional distress, which, one might add, has grown into a staple of modern defamation cases. On its terms, this claim is often designed to punish defendants whose actions are judged to be so “outrageous” as to “exceed all bounds of decency” and thus to be “utterly intolerable in a civilized society.” Well, let’s just say that for all the reasons stated above with respect to the defamation claim, the clearly outrageous actions of The Daily Stormer in this case also make them liable for the intentional infliction of emotional distress.

In the end, for all the merits of his case, it’s fair to say that Obeidallah is in something of a pickle here, which is par for the course for anybody suing a rogue defendant like The Daily Stormer these days. He has overwhelming odds of winning the match if only he can get the other guy to show up. This is the kind of irony that one won’t find in most regular cases where folks tend to worry less about their opponents actually showing up for the fight.  Not to make light of the grave situation here and to give a nod to comic relief, perhaps one can say that many of Obeidallah’s comedy brethren might find in this ironic situation some good comedy material for their time onstage. But seriously, it’ll be quite interesting to see how this case ends.

 

Twitter: @Ocarls

Suing JOHN OLIVER For Defamation: A Good Use Of Time?

Speaking of occupational hazards, comedians cannot help but irritate people and they do it aplenty. And, for what it is worth, they do get sued by those they piss off. This time John Oliver, host of HBO’s Last Week Tonight, has been sued for defamation by Robert Murray, founder and CEO of coal company Murray Energy Corporation, over statements that Oliver made on his show in mid-June.

So, there we go yet again, along the beaten path, one might say, as another lawsuit is filed against a comedian over what he said on a comedy show. While it may be tempting for those with money and other resources to step out there and try to teach a comedian a lesson, one has to wonder whether such a move is a good use of time in a place like America.

But first, here’s what happened:

On the aforementioned episode of his show, Oliver had a segment in which he knocked the Trump Administration’s efforts to revive the coal industry and portrayed CEO Murray as a guy who had fought against coal safety regulations. He referenced the collapse of one of Murray’s mines in Utah in 2007, in which nine miners were killed plus how Murray falsely claimed that an earthquake was to blame for the disaster even though, as Oliver said, a government report indicated otherwise.

In response, a few days later, Murray sued John Oliver along with the show’s producer Charles Wilson; HBO and parent company Time Warner on the claim that the segment was “false, injurious and defamatory” and that it was based on the show’s biases against the coal industry and the Trump Administration’s coal policies. To support his suit, filed in [coal country ] West Virginia, Murray, whose company is based in Ohio, claimed that the show’s producers were fully aware that a report by a government agency [Federal Mine Safety and Health Administration] supported his own version of the events and yet persisted in running the segment that “intentionally, falsely and outrageously” asserted that Murray’s claim was false.

So, that’s Murray’s defamation case against Oliver. But what are his genuine chances of winning? Well, for starters, defamation involves a false statement of fact that results in injury to somebody’s reputation or standing in the community. Now in defending this case, Oliver appears to have two grounds upon which he can push back against Murray. In other words, he can actually get two bites at the apple.

First, since we are dealing with an alleged false statement of fact, it follows that “truth” is a recognized defense to any defamation claim. And, given the circumstances of this case, one can predict that Oliver will try to play the truth card. Prior to the show episode in question, Murray’s side had served a “cease-and-desist” notice on Oliver’s people demanding that they not run the offending segment. Yet, during the show, Oliver positively scoffed at Murray’s notice, saying, “I know that you’re probably going to sue me, but you know what? I stand by everything I said.” Hmm! Well, so there you have it: Oliver clearly anticipated this lawsuit as well as his likely use of truth as a shield against liability. Translation: “The truth shall set you free…”, as the saying goes.

Then again, what if for some reason the truth defense doesn’t fly. Does it mean Oliver is toast? Not so fast! Now since we’re living in America, he could then move the ball into First Amendment territory, where our nation’s high court has long since held that debate on matters of public policy must be “uninhibited, robust and wide open”. Under the law here, for Murray to win, he has to show that Oliver knowingly made a false statement of fact or that he was reckless as to whether or not the statement was true. This is the so-called “actual malice” standard, which applies to public figures. Now, Murray may not be a public official, but it is hard for him not to be classified as a “public figure” considering a number of factors ranging from his prominent role in the mine collapse controversy and the references to him during official hearings on the matter to his position as the CEO of what is regarded by many as the biggest privately-owned coal company in America. (He would at least qualify as a “limited public figure” and that’s good enough for this purpose.) Besides, this is a debate about an important matter of public policy and concern, namely, mine safety. So yeah, in this lawsuit Murray probably will be deemed a public figure subject to the actual malice test. And there lies a big problem for him because this test  typically is a high hurdle for anyone to clear and, as experience has shown, the analysis here is exactly where these sorts of cases usually meet their Waterloo.

And this is so notwithstanding Murray’s allegation that the show’s producers in pushing their biased version of events were aware of other reports which indicated that an earthquake was responsible for the mine collapse. The thing here is, if Oliver relied on a government report in forming his opinion on the matter, as he claimed, then he cannot be said to have acted with malice, a la reckless disregard of the truth. As a participant in a public policy debate, he was entitled to hold and advance his own opinion, however offensive it may be.

Yet, if all else fails (which is unlikely anyway), Oliver can always say he was just making a joke as (you guessed it!) a comedian. Here, as long as a comedian is understood by his listeners to be making a joke, it makes it that much harder for a defendant like Murray to claim that the listeners are taking the funnyman’s cracks as true statements of fact, especially when we’re dealing with a famous comedian.

Oh, by the way, speaking of making a joke as a comedian, Oliver could also simply decide to play his entire defense backwards from the way it has been presented above. So, he could, for instance, straight up claim that the whole thing was all a joke for the amusement of his listeners. And if that doesn’t cut it, he can then start taking his two bites at the apple as described above, namely, that the offending statements are ‘true” anyhow or, alternatively, that he was just participating in an “uninhibited, robust and wide-open” debate on a matter of public concern.

In the end, there are a couple different ways that Oliver could win this thing. On the flip side, Murray’s odds of winning are quite long indeed. Then again, Murray could be the sort of guy who finds it worth his while to hale Oliver into court and make him sweat some and spend money on lawyers. After all, the statements in his lawsuit suggest that Murray feels wounded by Oliver’s attempts to make fun of his age and appearance. Recall that Oliver also called the guy a “geriatric Dr. Evil,” for added measure. So, given the gigantic odds against him, it is quite possible that Murray might choose to press ahead in this lawsuit because he looks at victory in an altogether different way, however perverse and vindictive that might seem to the rest of us. Otherwise, a lawsuit of this sort against a comedian in a place like America isn’t a good use of time because winning on the merits just isn’t a realistic expectation.

Twitter: #@ocarls

Jim Belushi: Sticking Up for a Name and a Brand

jim_belushi_photo6Lately, comedian/actor Jim Belushi seems to be spending quite a bit of time in court trying to protect a prized asset: his name and its brand. In show business, there can be plenty to a name, especially if money is riding on it. Obviously, this knowledge isn’t lost on Belushi as he makes his adventures in the courtroom with a double-barreled lawsuit.  But first here’s the story:

As it happens, Belushi owns the “Belushi Comedy Bar” trademark which he licenses to stand-up comedy clubs in exchange for royalty payments. In one lawsuit [filed in Chicago on June 5, 2015] Belushi claims that in the fall of 2014, he and his company Bessie Blu entered into an agreement with Kyle Lane, co-owner of Chicago club “The Comedy Bar”, which would allow the comedy club to use the Belushi Comedy Bar trademark in its business operations. As part of the overall agreement, which was in draft form only, Belushi’s company Bessie Blu laid out close to $17,000 in November 2014 for the installation of new lighting on the stage of the club’s new location. The trademark deal itself, however, fell through in January 2015. In the same fall 2014, Belushi claims that he and Bessie Blu made a loan to Kyle Lane to help the business operations of the club on the understanding that the loan will be repaid “in a timely fashion.” Following the January 2015 collapse of their trademark deal, Belushi alleges that Lane has failed to repay the loan and has refused to sign a document that would “memorialize” any oral agreement they had related to the payments.

The third leg of this lawsuit was Belushi’s claim that he was owed about $39,000 for some promotional work he did on behalf of the Comedy Bar between 2012 and 2013 − following an oral agreement he made with Lane. Belushi’s alleged promotional work included TV appearances, radio and newspaper interviews and visits to high-end hotels in the Chicago area. The bill for the promotional work includes lodging and travel expenses allegedly incurred by Belushi who lives in Los Angeles. In this lawsuit, Belushi seeks reliefs in damages for breach of contract and unjust enrichment.

The other lawsuit filed one day earlier [June 4, 2015] against Sahar Chavoshi, the club’s general manager, was based on the events that occurred after January 2015, as stated above.  According the Belushi’s lawsuit, Chavoshi maligned or bad-mouthed him to other comedians, leading to the cancellation of some shows at his other clubs. Belushi claims more than $50,000 in his defamation lawsuit against her, plus punitive damages.

At the outset, one thing that catches the eye here is the way that Belushi filed two separate cases against Lane and Chavoshi revolving around the same failed trademark deal. Though he has the right to do so, this is sort of an unusual move in these situations. For starters, it probably would be less expensive to do it all in one shot by way of a single lawsuit. Plus, if he was looking to get this stuff all behind him as soon as he can, then clearly, pursuing two separate lawsuits, a tactic that may well land him in two separate courtrooms, isn’t the best way to achieve that goal. Given all this, it just might be better for him to consider consolidating the two cases together in order to fight his battle in a single lawsuit. (It is difficult to see what tactical advantages he could reap by continuing to pursue the two lawsuits separately.) The other thing about the lawsuits is that we’re dealing with mostly oral agreements with respect to the claims he is making. Even in the one situation involving the trademark deal for the Belushi name, where something was allegedly written down, the document remained just a ‘draft’ that never evolved into an actual valid agreement. So, as a practical matter, the disputes arising from that agreement will be resolved in the same way that disputes are resolved in oral or unwritten agreements generally.

Now, that said, how will Belushi fare in his two lawsuits? Can he win?

Let’s begin with the unjust enrichment claims. This relief is usually granted as an “equitable remedy.” In lay person’s language, this legal jargon simply means that the court is acting in the interest of “fairness” in order to prevent one person from hanging on to ill-gotten gains at the expense of somebody else who had dealt with them in good faith and who, to the knowledge of both of them, was expecting to get paid for their services. As an equitable remedy, it is often granted to somebody when the better option of a “legal remedy” isn’t available.  Compared to an equitable remedy, a legal remedy in a contract situation presents more of a black-and-white scenario: for instance, two people have a deal, “signed sealed and delivered” where one person promises to paint a house in exchange for the other person promising to pay him $100.  If the first person does paint the house and the other person fails to give him $100, then the law steps in and enforces the agreements. This is a legal remedy situation where the lines of obligation are clear and the court knows exactly what obligations it is called upon to enforce.

However, if the agreement isn’t written down anywhere, it means that we can’t see where one party had promised to paint a house in exchange for the other party paying him $100. Yet, in these situations, the party who has painted the house, for instance, is asking the court to make the other party hand him the $100. This is an equitable remedy situation and the only reason for the court to intervene here is to promote “fairness”: If the court fails to intervene here, then the party who doesn’t have to keep his promise will have been “unjustly enriched” at the expense of the party who took the trouble to keep his own promise. Yet, fairness or not, the court cannot intervene unless it is shown the evidence that one party had indeed promised to paint the house in return for the other party paying him $100 and also that the first party had gone ahead to actually paint the house as promised. Obviously, this is a more difficult situation because there is no valid written agreement in existence. In the real world out there, an agreement that is oral in nature rather than written falls into this category where only an equitable remedy is available to prevent unjust enrichment. Like Belushi’s agreement here.

Speaking of Belushi’s case, one can see how it is a pretty good candidate for an unjust enrichment consideration by the court. For instance, if someone like Belushi who lives in Los Angeles, would pay travel and lodging expenses in order to visit places of business in Chicago on several occasions on behalf of somebody else, it is more likely than not that he was doing so because of an agreement with that other person and also that he was expecting to get paid for his trouble. The scenario becomes even clearer when you add all the other things Belushi claimed that he did in the course of his promotional work on behalf of The Comedy Bar. However, as in any unjust enrichment case, a party in Belushi’s position would only be awarded the “reasonable value” of his services by the court. This means that Belushi may not get all the money he is asking for unless the court determines that such amount of money represents the reasonable value of his services.

Concerning the alleged trademark agreement, since the agreement was only a draft that never became a valid agreement, the attempt to recover the nearly $17,000 spent for the stage lights, for instance, will probably be treated as unjust enrichment claims.

Then there is the breach of contract claim concerning the alleged loan. To be sure, this one seems more problematic than the other two above for the simple reason that by their very nature loan transactions are typically written down. In the real world, an oral loan agreement is an awfully bad idea because anyone can guess that such an agreement could very easily be denied by the person who has the obligation to pay back the loan. In our case here, the alleged understanding between the parties that the loan would be “repaid in a timely fashion” won’t be enough to save the claim from this problem of proof. This really is a classic evidentiary nightmare. Certainly, the time to “memorialize” the agreement in this case was at the very beginning of the deal.  If the other side is refusing to play ball at this late hour, assuming Belushi’s allegations are true, well, anyone could have guessed that this was a real possibility in situations like this.

Now, how about the defamation claim against Chavoshi? For starters, a defamation action pertains to an alleged injury against someone’s reputation which causes damage to the victim. Here, as stated above, Chavoshi’s alleged “public campaign to malign” Belushi led to the cancellation of some appearances by comedians at other Belushi-branded comedy clubs. Yet, as a well-known celebrity, Belushi will likely be treated as a “public figure” for the purposes of a defamation lawsuit. Usually, as compared to an ordinary Joe, it is more difficult for a celeb to win a defamation claim in America because they’d be required to show that the other person either said something they knew to be false or that they didn’t care that, under the prevailing circumstances, what they said about the celeb was probably false. With an ordinary Joe, somebody could be on the hook for defamation by making a false statement about him even if the maker of the statement didn’t know that the statement they were making was false or that they were merely careless in making the statement. In Belushi’s case here, Chavoshi would probably be off the hook if what she said about Belushi was either true, partly true or could be regarded as merely her opinion of Belushi.

In the end, there is no telling just yet what the final outcome of this case will be. But from experience, cases like this one usually settle before trial because people in business would rather get on with their lives than be spending time and money in court in the company of wrangling lawyers. However, if passions remain high and the matter goes forward, the odds are that Belushi will fare better with the unjust enrichment claims than with the others.

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.

BRITAIN’S FRANKIE BOYLE: The Meaning of ‘Defamation’ Across the Atlantic

frankie_boyle_photo5Between the way the world thinks of him and the way he doesn’t want anyone to think of him, the whole stuff about reputation seems to loom pretty large in British comedian Frankie Boyle’s world. From all indications, the brash, irreverent comic doesn’t seem to sweat what anyone calls him as long as no one calls him a “racist.” In Boyle’s worldview, for anyone to call him that amounts to something of a declaration of war. And he could hit the hapless aggressor pretty hard in the wallet and set the aggressor back by many thousands of pounds or dollars. At least, in Britain! Just ask the Daily Mirror, one of Britain’s major tabloids, which took a big hit last fall for apparently ‘messing with the wrong marine,’ as the Americans would say. But first, here’s what happened:

On July 19, 2011, the newspaper published an article in which it speculated about Boyle’s chances of returning to his comedy show on Britain’s Channel 4 television station: “Racist comedian Frankie Boyle could soon be returning to TV despite upsetting thousands of viewers with his sick jokes,” began the article, which also claimed that Boyle was “forced to quit” the BBC panel show Mock the Week owing to his brand of comedy. Feeling deeply wounded by the article, Boyle sued the paper for defamation in a London court; he claimed that the article was defamatory and that it brought him into “odium and contempt”─ stock phrases in many a defamation lawsuit. (By the way, to commit “defamation” against a person simply means to say things about that person which tend to damage or otherwise lower that person’s reputation in the community. If those offending words appear in written form, the harm that results is called a “libel,” as in Boyle’s situation.) Boyle claimed in court that just because he plays characters who express racist views doesn’t mean that he himself is a racist. “These are phrases that a racist would use”, Boyle said. “There is no way they are an endorsement of racist terminology. It is the absolute opposite of that.” In support of Boyle’s position, his lawyer stated that it would be ‘political correctness gone mad’ if Boyle were labeled racist for using racial language in his jokes.

For its part, the paper showed no remorse over the publication and instead stuck to its guns, claiming that Boyle was a ‘racist comedian’ who exploited negative stereotypes of black people for ‘cheap laughs.’ In a further slap at Boyle (who writes a column for a rival newspaper The Sun) the Mirror told the jury that if they should find that Boyle had in fact been ‘defamed’, they should merely award him the sum of 45p (forty-five pence), the price of a copy of the Daily Mirror. Ouch! Well, in the end, the jury came back and Boyle got the last laugh as the jury found that the paper had indeed defamed him. As a result, the court awarded Boyle a total sum of more than ₤54,000 (about US$ 80,000-plus) in damages plus court costs against the Daily Mirror.

Yet, as one might expect, considering the close ties between the pop cultures of the Britain and America, not a few folks, especially in the comedy and media worlds, have wondered if Boyle could have won his case so brilliantly if he had brought the defamation lawsuit in America instead. Well, for starters, if Boyle were merely a regular guy who either just drives a cab or works at the post office, his case probably would have gone the same way on both sides of the pond. For example, if Pete defames Joe who is a private person (think an average Joe) and then Pete can’t prove that what he said of Joe was true, then the defense fails and Pete becomes liable to Joe for defamation. But where the situation involves a ‘public figure’ (think a celebrity) then the matter is handled in a different way in each country. And this is where Boyle, who is undoubtedly a ‘public figure,’ would have faced a totally different ball game if the lawsuit would have been brought in the U.S.

It used to be that defamation cases were handled the same way on both sides of the pond until the 1960s when America decided that ‘public officials’ and ‘public figures’ would have to jump more hoops and work much harder than previously before they can win any defamation lawsuit that they choose to bring against anyone, whether a private person or a media organization. This meant that it is no longer just enough that something said about a public official or public figure was not true; a greater amount of fault on the part of the person who made the statement was now required. In short, a public official or public figure who files a defamation suit could still lose the case even if the statement made against him is later shown to be false. Tough stuff!

This new rule is called the ‘actual malice’ test, and two things are required in order for someone to fail the test and thereby become liable for defamation when sued by a public official or a public figure: first, the person must have intentionally made or published the false statement with the knowledge that the statement was false; or second, that the person chose to make or publish the false statement when the circumstances were clearly such that he should have known that the statement he was making or publishing was false. (In this second scenario, you might include situations like someone, for instance, deliberately looking away from another person who is trying to show him that the statement was false; or situations where someone simply chooses to believe some crazy ‘Mickey Mouse’ kind of talk that ‘pigs can fly.’ Instances that come under this second scenario are often regarded as ‘willful blindness.’)

At the time the new rule of ‘actual malice’ was adopted, it was said that the First Amendment which commits America to the principle of ‘uninhibited, robust and wide-open debate’ on matters of public interest or public issues needed the new approach in order to provide greater protection for ‘free speech.’ In the 1964 case where this new rule was established, the New York Times had published an ad put forward by an interest group; the said ad detailed the alleged mistreatment of civil rights activists by the Alabama authorities. It turned out that some of the facts stated in the ad were inaccurate, for example, like how many folks had been arrested; exactly where the police had been positioned on the campus; what particular song the protesters had been singing and more. When the public official in charge of the police sued the New York Times for defamation, America’s High Court said it didn’t matter that these statements of fact were in fact false. The court stated that under the First Amendment, no defamation was in fact committed as long as both the Times and those who paid for the ad didn’t knowingly or intentionally publish the false statements nor did they publish them under circumstances where they clearly should have known that the statements were false.

So, as it happens, Americans are willing to put up with some ‘false’ stuff in order to protect the right to free speech and to preserve their highly prized culture of spirited debate on public affairs.

But exactly why, in Britain, did Boyle win his case against the Daily Mirror? Well, it’s fair to say that the jury simply didn’t buy the defense’s story: they didn’t think it was true that Boyle was a ‘racist’ or that he was ‘forced to quit’ the Mock the Week show because of his racist views. The defense’s style itself could be described as something of a ‘kitchen sink’ strategy that allowed the defense to hedge its bets by playing the kind of hand that both an English lawyer and an American lawyer might choose to play in defending a case like this one. Essentially, the defense claimed that the offending statement was either ‘true’ or was an ‘honest comment on a matter of public interest.’ Interesting tactic: first, to show that the statement was true, the defense trotted out some of Boyle’s quite offensive remarks on the Channel 4 comedy show Tramadol Nights, including the Madeleine McCann crack as well as his Twitter quips about Paralympic athletes. Then the defense came up with the public interest commentary that many an American defamation lawyer would recognize. Pretty smart hedge!

Yet, in hindsight, Boyle’s opponents did not seem to have done themselves any favors with the whole Mock the Week business. It seems like the overall atmosphere at the jury trial tilted against them when they fought for but lost that branch of their case. For example, a witness with firsthand knowledge of the situation actually showed up at the trial to testify that Boyle was not in fact canned from Mock the Week. Even worse for the defense, the witness stated that the show’s producers had hoped that Boyle would make a return appearance on the show in the future. Apparently, the Daily Mirror might have looked better just sticking with general claim of ‘racism’ against Boyle and no more.

But seriously, how would Boyle have fared in an American court? Short answer: Not as well as he did in Britain! Not even close. For starters, America, unlike Britain, is First Amendment territory. So, predictably, the ‘public figure’ business would have been front and center of this kind of case in an American court and with that (you guessed it!) comes the ‘actual malice’ standard as well. All of this would have created massive complications for Boyle and thereby jeopardized his odds of winning. Incidentally, in the British case, the Daily Mirror won a small victory when it got the court to reject Boyle’s claim of ‘malicious falsehood’ in the Mock the Week imbroglio. In an American court, a ruling that there is no malice would be a huge factor that could only weigh down a public figure’s odds of winning a defamation lawsuit against a newspaper which is defending itself on grounds of public interest.

In the end, considering the potential impact of these big issues on everyday life in any society, the Boyle-Daily Mirror case is one of those situations that remind any observer that, ‘special relationship’ aside, Britain and America are still different places after all. As far as comedy goes, America, thanks to the First Amendment, is the best place on earth not only for anyone to be a comedian but also for anyone in the mood to mess with comedians. In our case here, it means that a dude like Boyle, who would say anything about anyone but cannot stand for certain things to be said about him, obviously is living on the right side of the Atlantic ── outside America, that is. For the Daily Mirror, well, living outside America apparently seems like a different ball of wax.

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    Author’s Note:

:*** As promised, my new book “Comedy Under Attack…” which covers political correctness and all the big issues in comedy today is now available on amazon.com and in stores. As a service to comedy, please post your comments about the book on Amazon, Goodreads, Facebook, Twitter and other places, so that together we can drive this ‘hot debate’ even deeper into the public square…

DONALD TRUMP vs. BILL MAHER: Tensions between a Joke and a Deal

Doanld_Trump_photo4When it comes to money matters, mixing things up with Donald Trump can be a costly proposition. This means that even making a bet with the real estate mogul and Celebrity Apprentice host can earn someone a court date and maybe even set the person back a couple million dollars. Not even if the bet was meant as a joke. Not even if the person on the opposite side is a well known comedian. Like Bill Maher.

Here’s what happened: This past January, Maher, the host of HBO’s Real Time with Bill Maher appeared on Jay Leno’s Tonight Show and mocked Trump as “the spawn of his mother having sex with an orangutan.” Maher then said that if Trump could show proof that what he [Maher] said wasn’t true, he would give $5 million to Trump, which the billionaire would be free to donate to any charity of his choice, such as “Hair Club for Men, the Institute for Incorrigible Douchebaggery, whatever charity…” To drive his point home, Maher also claimed that the color of Trump’s hair and the color of an orange orangutan were the only two things in nature of the same color. The audience laughed loudly and applauded. And most people regarded Maher’s offer as merely mimicking or mocking Trump’s own offer a year earlier to donate $5 million to any charity of Barack Obama’s choosing if Obama would produce his birth certificate and college transcripts.

Well, as it turned out, if the comedian was joking, the billionaire apparently didn’t take it like a joke: Two days later, Trump produced his birth certificate to Maher and then demanded that the funnyman pony up, as promised. When that didn’t happen, Trump made a most unexpected move: He sued Maher in a Los Angeles court, for breach of contract.

Lately, it seems like The Donald has been busy trying to teach folks out there some lessons in the courtroom. Last December, just one month before the start of his dust-up with Maher, Trump was awarded $5 million dollars in his lawsuit against ex-beauty queen Sheena Monnin, a former Miss USA contestant, who in June last year pulled out of the pageant after alleging that the competition was fixed. In response, the Trump Organization, owner of the pageant, hit her with a defamation lawsuit, claiming that her false statements had hurt the reputation of the Miss USA Competition. The arbitrator agreed, and ordered Monnin, a former Miss Pennsylvania, to pay $5 million to the Trump Organization.

However, in the comedy industry, Trump’s lawsuit against Maher has not won him a lot of admirers. At stake here is the longstanding freedom of comedians to go on comedy talk shows and just parody public figures without even thinking about it. Needless to say, whatever Trump’s chances of winning the case, his accusers fear that if he wins the lawsuit against Maher, it could open a brand new door against comedians which people had assumed did not even exist. To be sure, this sort of apprehension flows in the same stream as the so-called ‘chill’ factor on free speech rights in general.

But what are Trump’s odds of actually winning? Can he even sue Maher for breach of contract in a situation like this one? For starters, when most folks think about breach of contract, they often imagine a situation where two people have made promises to one another and then one of them either refuses or fails to keep his word. In such situations, the agreement is made ahead of time, with each party knowing exactly what he promises to do and what he gets in return from the other side. Needless to say, they both recognize that the agreement is ‘binding’ on them and that they can be sued in court if they don’t keep their promise. This kind of contract is called a ‘bilateral’ contract and is obviously not the sort of situation that Trump and Maher are involved in.

But that’s not all. There are other situations that might involve people who have never negotiated or ‘bargained’ with each other or perhaps have never even known each other or met each other before. Yet, as long as an offer is made by one person and accepted by the other, a contract situation can arise between them. Again, it must be clear to both parties that the agreement is ‘binding’ on them and that they can be sued in court for not honoring the agreement. Here’s a situation where that could happen: Jose loses his dog and offers to pay $200 to anyone who finds and returns his lost dog to him. Three days go by and Jimmy finds the dog and returns it to Jose. At that point, Jimmy has ‘accepted’ the contract by actually performing it and Jimmy can sue Jose for breach of contract if he fails to pay up. This kind of contract is called a ‘unilateral’ contract and it is obviously less commonplace than the other kind of contract, discussed above. And for whatever it is worth, this is the kind of contract that Trump’s lawsuit assumes exists between the billionaire and the comedian.

Still, Trump has a real problem here as far as trying to establish that he and Maher entered into a contract. The crucial piece that is missing in their situation is something called ‘intent to enter into legal relations.’ Translation: Did Maher intend to make an offer that is ‘binding’ at law? Usually, when it comes to whether a person means what he says to stand as a valid offer or promise, the ‘context’ of the statement can be pretty crucial. Naturally, not every offer will qualify as valid. Consider the case of a ‘puff’ in a product ad. As the court recognized in an old English case from 1893, it is possible that what might seem to one party like a promise or an offer from the other party may be ‘only a puff from which no promise to pay could be implied.’ In layman’s language, a ‘puff’ is just an exaggeration or swagger about something, and when it comes to offers, stuff like ‘puffs’ are out.

Now, speaking of ‘context’ and ‘intent,’ here’s the big question in this lawsuit: what is the ‘intent’ of a comedian making a funny statement on a late night show in America? Is he looking to make an agreement that is ‘binding’ upon him at law, even if he’s mentioning somebody else by name? The short answer here is that any average person (think: a ‘reasonable’ person) who understands the nature of American talk shows as well as how comedians generally behave probably would not think so. More likely, he or she will think that the comedian was merely joking around.

There is another angle to Trump’s lawsuit: As he took Maher to court, Trump rejected the idea that Maher may simply have been joking when he made the offer. “I don’t think he was joking. He said it with venom,” Without directly saying so, this talk about ‘venom’ seems to hint at ‘malice’ on the part of Maher. An accusation that somebody made a statement or did something with malice likely would be more relevant and even helpful in a different lawsuit than a breach of contact claim. Because of this, one just might wonder why Trump did not choose to sue Maher for something like defamation instead of breach of contract. By the way, Trump presented his birth certificate in an attempt to show that Maher’s statement was false. And we note that a false statement that hurts someone’s reputation is the whole point of a defamation claim. Plus, as a billionaire with huge financial interests in the business arena, the money he can recover against someone who has damaged his ‘reputation’ would be a lot more than $5million. After all, defaming a billionaire like Trump is not like defaming a cabbie or a janitor.

So, why didn’t he sue for defamation instead? Well, apparently because Trump is smart or at least his lawyers are. To be sure, whatever his odds of winning his present breach of contract claim against Maher, his odds of winning a defamation claim against the comedian are even longer. Much longer indeed! A defamation claim against a comedian for what he said on another comedian’s talk show will quickly be consumed by much legal wrangling and bombast over the First Amendment and free speech. Long story short, between the notion that Trump is a ‘public figure’ and other matters that the free speech law concerns itself with, such a messy fight will most likely end up as a losing proposition for him.

In a defamation kind of situation, either Maher’s statement will be found to be a mere joke or parody, given the ‘context’ in which it was made, or it would be considered as a mere statement of opinion rather than fact. One way or the other the result will be the same for Trump – a defeat! Yet, for all the talk about ‘context,’ the law as they often say, remains ‘an ass’ and one can imagine a situation where something that a comedian says even on a talk show can still get him in trouble in a courtroom. For one thing, there is always that old principle that ‘a person is not allowed to murder another’s reputation in jest.’ But that’s not the situation we have in this lawsuit, it seems.

Well, in life, it is said that you win some and you lose some and Trump certainly had a big win in that defamation case against Miss Pennsylvania. But there are real differences between the case he won against the beauty queen and any possible defamation case that he could bring against the comedian here. The biggest difference is that the beauty queen made a statement of fact that the pageant was rigged, which turned out to be a false statement. It is awfully easy to imagine the serious damage that such a rather ill-advised statement can cause to the reputation of both the Trump Organization and the competition itself. Consider the context of the two statements: The Miss USA Competition is a serious event where folks win money, careers are made, role models emerge and media interest is high. On the other hand, Maher is a comedian who likely was merely grandstanding or bloviating on another comedian’s talk show, a program which opens every weeknight with a traditional stand-up monologue. The two scenarios are vastly different from one another.

In the end, Maher most probably won’t end up paying $5 million on Trump’s breach of contract case. But between paying his lawyers and going to court in this lawsuit, perhaps Maher has ‘picked on the wrong marine’ and has made a joke that will bring him an unexpected hassle. Despite his likely defeat in this case, The Donald is a tough customer who plays hard ball whenever the whistle is blown in any fight. From all indications, he will not be in any position in the present lawsuit to teach the comedian the kind of ‘expensive lesson’ (as he put it) that he taught the beauty queen. Yet, at the end of the day, he likely will have made his point with his lawsuit – a move that some have angrily denounced as an outrageous attack on comedy.

Please stay tuned for my upcoming book “Comedy Under Attack…”. Coming out soon!