All In Good Humor…Until You Get Sued
“Sticks and stones may break my bones, but words can never hurt me.” That childhood idiom is so yesterday. It certainly doesn’t hold for those who unwittingly become comedians’ fodder. When the volleys of humor start hitting too hard, wounded egos start shelling out to have the courts mend their wounds.
Meet Defamation, the tort for hurt feelings. In legal parlance, defamation protects a person’s reputational interest through four requirements: 1) a false statement of fact (not an opinion) about a person, 2) communicated to a third party, 3) with fault amounting to at least negligence on the part of the defendant, and 4) some harm caused to the subject of the statement. Simply put, when false statements of fact damage a person’s reputation, defamation action is their recourse.
While fraught with defamation tripwires, the comedic realm lacks clear lines as to when tongue in cheek statements cross from hilarity into a legal wrong. Each time Chelsea Handler lampoons Lindsay Lohan yet again or Daniel Tosh says anything about anyone, they’re taking a calculated risk that a lawsuit won’t follow. Fortunately for most well-known comedians, courts tend to give leeway when parody and other forms of humor are involved. Even the Anti-Defamation League offers comedians latitude (not that it stopped them from going after Chelsea Handler when she dressed Chuy Bravo up as Adolf Hitler after Germany’s World Cup win).
As we know, courts can be unpredictable and have ruled both ways when it comes to defamation and comedic relief. On one hand, the courts state that jest does not justify an assault on the reputation of another but, on the other hand, humor is justified if it is clear that it is not intended as an attack on the person to whom it relates. So when is comedy considered an attack? Because defamation cases deal with the premise that someone’s false statements harmed an individual’s reputation, context is key. We all know there are statements of fact and there are statements of opinion. If an opinion is expressed, there is no defamation. Picture this: the audience in a comedy club is laughing ferociously as the main act pokes fun at J. Doe. Do audience members really believe the comedian’s intent is to convey facts that should be taken seriously? If you don’t think so, you just helped make a case against defamation: the law looks at context through the eyes of an objective, reasonable person and asks whether he or she believes the comedian’s statements should be taken seriously.
Take Jerry Seinfeld’s 2012 defamation drama. Seinfeld was sued for statements he made on The Late Show about a woman who had previously sued his wife. He joked that she had three names and that, historically, people with three names often become assassins (he may have also referred to her as a wacko and nut job). Regardless of the adjectives Seinfeld used, the case was dismissed because Seinfeld was speaking to an audience in an entertainment context. The New York court found that no viewer would reasonably believe the woman could be an assassin or that Seinfeld’s quips conveyed facts about her. Seinfeld was merely stating an opinion in a comedic interchange as evidenced by the audience’s laughter.
So do comedians always get the last laugh? Not necessarily, but they do spend considerable time straddling the defamation line in practicing their trade. On one side of the proverbial line, humor cannot be used to mask intent to harm a person’s reputation. On the other side, comedians have the right to free speech like the rest of us. To be on the safe side, comedians could adopt a prologue much like Joan Rivers used in her latest book, “anyone who takes this book seriously is an idiot.” There. Problem solved: it’s all a joke.
Attaching a warning label to comedy routines, however, is no ideal prescription for staying on the right side of the law. Thankfully, there is protection afforded to parody and social commentary. As America’s culture of entertainment evolves, however, comedic reporting such as the Colbert Report and the Daily Show are gaining viewers who consider them to be their regular news source. The growing influence of comedic reporting in shaping public opinion makes it more difficult to distinguish whether viewers are truly taking their commentary in jest.
What does this mean for the future defamation cases against comedians? Only time will tell, but comedian Patton Oswalt said it best “…I don’t agree with what he said, and I don’t agree with the way he said it, but there’s something really, really dangerous about [reacting to] something you don’t like by shouting it down so it’s not heard.”