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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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)

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.

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.

***

    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!

JOEL McHALE: A sweaty court battle with the angry dwarfs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jim Norton: Lessons from a “Chicken” defamation fight

Comedian Jim Norton and the Opie and Anthony show are two of a kind and when they come together, it may be wise to prepare oneself for a moment that may not be so ordinary. As it happens, Jim Norton is a stand-up comic who is known for pushing a tough line with foul-mouth remarks that draw blood; for its part, the Opie and Anthony radio show itself is a no-holds-barred arena. Their collaboration is something of a “perfect storm” for words that may hurt, sting and irritate; and a potential defamation lawsuit to boot. And that’s exactly what came to pass when Roy Den Hollander, a self styled “anti-feminist lawyer” sued Norton for defamation.

To be sure, Hollander is a gadfly Manhattan lawyer who is no stranger to controversy. He claimed he had called into the Opie and Anthony show in the hope of having an intelligent discussion of the merits of his lawsuit against Columbia University in which he was seeking to have the university abandon its women’s studies program. Earlier on, he had filed but lost a lawsuit in which he sought to have the nightclubs cancel their “Ladies Night” sessions.

But here’s what happened: During Hollander’s call-in participation on the Opie and Anthony show, hosted by Norton in 2009, an argument had broken out between the two. In the heat of their testy exchange, Norton berated Hollander as a “stupid” person and a “whore” who desired to have sex with a feathered fowl. According to Hollander, the most offensive remark made by Norton was the part where Norton said: “The chicken crossed the road because it thought that [Hollander] would try to f*ck it.” Ouch!

Not wanting to let things slide, Hollander filed a defamation lawsuit against Norton, seeking a half-million dollars in damages. In his suit, Hollander claimed that Norton’s crude remarks “held him up to public contempt and disgrace and caused him personal humiliation, mental anguish and suffering.”

For his part, Norton filed a motion asking the court to sanction Hollander for filing a baseless lawsuit and also for Hollander to pay Norton’s legal fees.
Sensing disaster ahead, Hollander decided to cut his losses and soon the parties settled the case, with each side agreeing to drop its demands against the other. Despite the settlement, Hollander insisted he would have won the case anyway, even though he said he believed the judge in the case was unsympathetic to his claim: “The judge wasn’t too favorable towards the case, so I decided to quit while I was ahead…I figured Norton’s learned his lesson and he won’t mouth off as much…you don’t always have to win a case to win a case.”

So, anyhow, the case settled. But could Hollander have won his defamation lawsuit against Norton? Not likely, and it was smart of him to quit when he did.

For starters, considering that their line of work requires comedians to make fun of other people and of the society itself, most people won’t be too surprised to find that a defamation lawsuit would be the most common occupational hazard for comedians. When a person sues somebody else for defamation, he pretty much would be claiming that his reputation in society has been injured or damaged by something the other person said about him. But to win his case, the person suing has to show that the person being sued made a “false statement of fact.” This means he cannot win his case if the statement is a statement of “opinion” rather than “fact.” Of course, if the statement happens to be “true,” then he cannot win, no matter how much damage the statement does to his reputation.

And since we are talking about damage to reputation in society, what matters in a defamation claim is what the society itself thinks: Would most reasonable people in society who hear the statement think of it as an expression of “fact” or just an “opinion”? As it happens, most people in society tend to understand comedians to be folks who make a “parody” of other people and the society itself just to draw a laugh. Certainly, not as people who are expressing facts. And it is mostly for this reason that suing a comedian for defamation is a pretty difficult business.

It is the rare occasion where a defamation lawsuit against a comedian succeeds – as happened this past July in Australia where the Channel Ten television station in Australia was fined for allowing a comedian named Mick Molloy to joke on the station’s football TV show Before the Game that a female politician named Nicole Cornes, who was married to a former football coach, had slept with a former football player. The Australian court accepted the claim that the broadcast was an attack on a woman’s “self-respect and dignity” and rejected the excuse that given the humorous context of the show, the joke was not meant to be taken literally. But that was Australia. In America, it would have been a more difficult case for her because of the First Amendment’s free speech provisions. Given that she is a politician, she probably would have been regarded as a “public official /public figure” and a tougher test called “actual malice” would have been applied to her case.

Long story short, one big lesson from the Norton case is that suing a comedian in defamation, as tempting as it may be, is no easy business, even with comedians as outrageous as Norton. But while that may be a lesson for everyday folks out there, most people would expect that somebody like Hollander, a controversial lawyer, who’s been around for a while with stuff like this, would already know that lesson. It is safe to say that Hollander’s defamation lawsuit against Norton is quite frivolous and as it happens, not a few people could see that: the judge in the case clearly saw that and Hollander himself knew that the judge saw that as well. The lawsuit was a boneheaded idea and Hollander could certainly have used his time better than that. Rather than teach Norton a lesson, as he claimed, it was Hollander himself, it seems, who had, quite surprisingly, forgotten an old lesson.

Vince Vaughn’s “Couples Retreat”: The Bikini Model versus NBC Universal

Vince Vaughn
Vince Vaughn

Things can get complicated and courts and lawyers can come into the picture when a Hollywood movie features people who did not sign on as cast members. Just check with the comedy movie Couples Retreat starring Vince Vaughn.

In the movie, four couples embark on a vacation at a resort to work out the issues in their relationship. In one of the scenes, co-star Jon Favreau’s character pleasures himself while starring at a sexy bikini-clad bombshell featured in a brochure he was holding as he lay down on his back.

Now, the woman in the brochure has filed a $10 million dollar lawsuit against the moviemakers NBC Universal for defamation and invasion of privacy. The Manhattan woman Irina Krupnik, an ex-model who now works as a makeup artist had the photos taken about 10 years earlier when she was about 21 years old. She said the way she was portrayed in the movie in a “sexual and degrading context” caused her great humiliation, embarrassment and emotional distress.

So, that’s her lawsuit. Now, just what can she win? Well, only the court can decide whether she wins her case or not. But for the moment, here’s how it looks. Of the two claims, the defamation claim is more tricky for her because of the all the slippery nooks and crannies of defamation law, especially in America. First, we are not dealing with a statement of fact here, which is the real meat of a defamation action. We are not even dealing with a mere opinion. We are actually talking about just a photo. Plus, some smart defense lawyer could entangle the case in a debate about whether a fashion model should be treated as a “public figure” or a “private figure” and this can make a huge difference in the way it all ends.

But her chances are much better with respect to the privacy claim. Here, there is not much doubt that what NBC Universal did in the movie amounts to using her image and likeness for profit. But that’s not the end of the story. As it happened, she signed a general release after the photo was taken. Such agreements usually transfer to another person (usually the model’s agent or other handlers) the right to authorize other people to use the photo in the future. The question now is whether the terms of the general release covers the way the bikini photo was used in the Couple’s Retreat movie. And to answer this question, the court will have to look at the agreement itself.

Krupnik says she couldn’t have imagined at the time she signed the release that the photo would be used in a “quasi-pornographic context.” Well, maybe so but the court will not simply decide the case on the basis of what she alone was thinking at the time, even if she was being entirely honest.

If the plain language of the agreement does not clearly say that the photo could be used just the way NBC Universal used it in the movie, then the court will consider how folks in the modeling industry would have understood the language used in the release at the time she signed it. This is called “trade usage and custom.”

At the moment, it is not yet clear how NBC Universal got its hands on the photo it used in the movie. But if, for instance, the moviemaker got a license to use the photo from perhaps Krupnik’s agent or somebody else with the power to license the use of the photo to them, then they would be in a much stronger position in the lawsuit. Needless to say, the actions of an artist’s agent may sometimes make all the difference as happened when singer Debra Laws lost her case against Sony Music Entertainment in 2006 because her agent granted a license to the recording company to use a sampling of her song on a different song performed by Jennifer Lopez and LL Cool J.

However, there are things Krupnik could have done early on to put herself in a great position overall. For instance, she could have simply retained her copyright in the photo. But she apparently lost that power when she signed the release. Also, she could have quite simply signed another agreement specifically giving her full control over the licensing of the photo to any interested users. Now, it is all a matter for the court.