A few years ago, star comedian Jerry Seinfeld’s family spent quite a bit of time in court and with lawyers. First, his wife gets sued for plagiarizing (or copying) somebody else’s cookbook. Then Seinfeld himself gets sued for talking about the lawsuit filed against his wife when he appeared on David Letterman’s show. And it is the same person that is suing them the whole time. In the end, though, the Seinfelds got the last laugh: the wife beat back the lawsuit against her and then another court sided with Seinfeld in denying that he committed defamation against Missy Chase Lapine, the woman who had sued them.
Here’s what happened: Around 2007, Lapine sued Jessica Seinfeld (Jerry’s wife), for plagiarism, claiming that Seinfeld’s cookbook “Deceptively Delicious”, which dealt with sneaking pureed vegetables into kids’ foods was copied from her own cookbook “The Sneaky Chef.” The case ended up getting dismissed because the court said that the two books were different enough from each other and that sneaking pureed stuff into kids’ foods wasn’t such a brand new idea after all. (The back story here is that publisher HarperCollins rejected Lapine’s book twice before picking up Seinfeld’s own book and helping her promote it on Oprah’s show. The book later turned into a hit.) Afterwards, that same year, Seinfeld himself appeared on The Late Show with David Letterman and without mentioning Lapine by name, said some unflattering things about her, including using such words as “wacko”,” stalker” and “nut job”. At one point, Seinfeld had said: “We’re sorry that she’s angry and hysterical and because she’s a three-name woman. She has three names. And if you read history, many of the three-named people do become assassins. Mark David Chapman. And you know, James Earl Ray. That’s what concerns me.” Then Lapine followed that up with a defamation lawsuit against him, claiming that Seinfeld’s use of the words “wacko”, “stalker” “nut job” and “assassin” when referring to her during his appearance on The Late Show amounted to defamation.
Well, the court didn’t agree with her and Seinfeld’s folks celebrated their good day in court. “Today’s decision is a complete victory for Jerry, and also a victory for the First Amendment and the right of comedians to tell jokes,” said Orin Snyder, Seinfeld’s lawyer. The gloating of Seinfeld’s lawyer aside, the defamation part of the court battle is the one that offers up a few good lessons to comedians on just how much space the law allows them to swing their arms when talking about other folks.
For starters, “context” is a big deal in a defamation case, especially because a typical defamation case tries to make the point that somebody else’s false statement of fact had damaged the reputation of the person that is bringing the lawsuit. Since we are dealing with a statement of fact, it means that what the other person [the offender] said must be the kind of statement that can be shown to be true or false. If the statement is false, then the person making the statement is liable for defamation. But then again, a statement about somebody can either be a statement of fact or a statement of opinion. If the statement can be seen as a statement of opinion, then there is no defamation. And this is where the “context” (or in layman’s language the “circumstances”) makes all the difference.
And whenever the law looks at the “context” of the statement, it does not do so through the eyes (or point of view) of the person suing or even the person being sued. Rather it looks at the statement through the eyes of what is known as a “reasonable person” in the community, and this is usually someone who would be unbiased, owing to the fact that he is not involved with any of the parties in the case.
And when a comedian is being sued for something he said, the whole talk of “context” and the difference between “fact” and “opinion” becomes an even bigger deal. As one might expect, comedians, more than any other group of folks out there, would be likely to benefit from this kind of analysis. The simple reason is that comedians are jokesters trying to draw a laugh and most people understand them to be just trying to draw a laugh. And in Seinfeld’s case he obviously got the full benefit of being a comedian, and a well known one at that. In this controversy, everything was in a good place for Seinfeld: he was a comedian by profession; he was appearing on an entertainment show dominated by comedy and hosted by a well-known comedian and he was speaking before a late-night audience looking to be entertained, including those watching at home.
Now, how is a reasonable person supposed to look at statements made in such a “circumstance”? Well, the court applied the “context” test, and flat out said that no reasonable viewer “would have believed that Seinfeld’s statements were conveying facts about Lapine”. The court added that no viewer could have regarded Seinfeld’s statement as an accusation that Lapine was a would-be assassin or was in any way dangerous. Long story short, the court concluded that Seinfeld’s statement on the Late Show were simply statements of ‘opinion’ and not of ‘fact’.
Well, that was the end of the road for Lapine’s defamation claim and it offered yet another proof of how hard it is to make a defamation case stick against a comedian, thanks to the First Amendment and the right of free speech. But does it mean that somebody can’t win a defamation claim against a comedian? Simple answer here is that, as hard as it may be, and despite their advantages in defamation court, comedians can still be found liable for defamation because, just like other citizens, they can sometimes slip up on a banana peel. To be sure, the First Amendment does not give anyone the license to break the law. When it comes to defamation, the general rule is that a person is not allowed to murder another person’s reputation in jest. And here, comedians stand in the same shoes as everyone else.
And again, “context” or “circumstances” play a big role on the flip side, and we’re talking about the same “context” factor that often allows comedians to beat most defamation raps. Thus, when the context or circumstances of the statement make it look like the comedian is stating a “fact” about somebody else, then the comedian will be liable for defamation if that statement of fact happens to be “false” and also damages the other person’s reputation in the community. In such a case, just because the comedian accompanied the statement with a joke will not save him from being liable in defamation. So, the line will be crossed when the humor or joke is simply being used to mask or hide an attempt to injure somebody else’s reputation. To be clear, we are talking only about statements of facts here. And, by the way, if the statement of fact happens to be true, then the comedian or whoever made the statement will be protected from liability, just like in any other defamation case. And of course, as already noted above, when the statement is a matter of opinion, then the comedian will not be liable.
In Seinfeld’s case, looking at everything from the eyes of a reasonable person, the court simply didn’t buy the narrative that the comedian was making a statement of fact about Lapine or that he was expressing anything other than his own personal opinion about Lapine. None of those situations are enough to make him liable for defamation. Yet, just because a person was appearing on a comedy or entertainment talk show doesn’t necessarily mean that they won’t ever be found liable for defamation. They can still get in trouble for defamation, as happened in July last year in Australia when a comedian named Mick Molloy joked on a sports show that a married female politician had slept with a former football player. The court described the broadcast as an attack on a woman’s “self-respect and dignity” and rejected the defense that the “humorous context” of the show suggested that that the joke was not meant to be taken literally. The court then slapped a fine on the TV station for making the broadcast.
In the end, the real lesson from the Seinfeld case is that comedians are indeed allowed a lot of room for maneuver when it comes to defamation. And thanks to the First Amendment, that room is much larger in America than every place else. Yet, while comedians have wiggle room to say an awful lot about other folks, they don’t have the kind of room that allows them to say just about anything. A lot of room and un-limited room are two different things. In perspective, because Seinfeld as a celebrity comedian has the sort of media connections and pretty big microphone that Lapine did not have, maybe it was bad manners and a case of unfair play on his part to have knocked his adversary on the Late Show, a national forum where she had no opportunity to hit back at him. Perhaps some folks might even feel that he acted a little like a schoolyard bully toward her. Yet, fair or not, Seinfeld was still operating within the large room space available to comedians in the American public square. Long story short, what he did doesn’t amount to defamation in law.