“With cases involving outrageous parody and satire, the path of least resistance has been to find the ‘speech’ non-defamatory as a matter of law. The rationale used to justify this conclusion is that no reasonable reader could understand the publication as an assertion of fact. The presumption is that satires so outrageous as to preclude belief is incapable of harming reputation” – From Constitutional Law-Satire, Defamation, and the Believability Rule as a Bar To Recovery – Falwell v. Flynt by Kevin M. Smith
What is the difference between satire and defamation? Is Satire legal in the United States? What happens if someone deems your satirical work defamatory? Is there a legal line that satirists can’t cross? Below, we’ll discuss these questions, plus take a look at two lawsuits that turned on the difference between satire v. defamation.
Satire v. Defamation: The Case Of The Esquire Blog Post
Magazine Blogger Pokes Fun At Author
In a December 2013 satire v. defamation case, a court booted a $120 million lawsuit against Esquire Magazine. Jerome Corsi had sued the media outlet for poking fun at his book,“Where’s the Birth Certificate? The Case That Barack Obama is not Eligible to Be President”. Unfortunately for Corsi, Obama released his long-form birth certificate days before the book hit shelves. Esquire writer Mark Warren – apparently tickled by the bad timing — posted a satirical recall notice of the book on Esquire.com. Warren titled his blog post: “BREAKING: Jerome Corsi’s Birther Book Pulled From Shelves!”
People Without A Nose For Satire Believed Blogger’s Post; Blogger Adds “Satire Notice”
According to Corsi, within hours of Warren’s post publishing, to comply with the last minute recall, bookstore owners frantically pulled “Where’s the Birth Certificate” from shelves. Concerned about the possible mass confusion, Corsi quickly sent a complaint directly to Warren. Obligingly, Warren added a “satire disclaimer” to his piece; though, he also called Corsi an “execrable piece of shit”. (Hey, you win some; you lose some.)
Defamation Lawsuit Filed
Unsatisfied with Warren’s disclaimer, Corsi filed a defamation lawsuit against the author and Esquire. In his claim, the book-writing birther argued that Warren’s fictitious recall was malicious, false and reputation damaging. Since defamation plaintiffs almost always have to prove material harm, Corsi alleged that the satirical blog post hurt book sales.
Judge: “Satire is not Defamation.”
A D.C. Circuit panel, however, didn’t see eye to eye with Corsi. Upon review, the judges reasoned that after “reflection” a “reasonable reader” wouldn’t believe Warren’s posting. While the bench did admonish Warren’s language as “salty,” it also affirmed that salty or not, opinion and satirical speech were protected by the 1st Amendment.
Judges’ opinions from the Esquire Satire v. Defamation lawsuit:
- Warren’s post was a “public statement on an issue of national concern,” and therefore not defamatory;
- In reaction to the plaintiff’s argument that people believed Warren’s post, the appeals court opined, “It is the nature of satire that not everyone gets it”;
- On the value of satire: “Indeed, satire is effective as social commentary precisely because it is based in truth.”
In the end, the judges ruled that the post wasn’t likely to cause people to “reverse course,” so not defamatory.
Humor v. Parody v. Satire v. Defamation Under U.S. Law
Over the years, U.S. courts have made it abundantly clear: parody and satire are not defamatory. Does that mean all satirists and biting comics emerge victorious from defamation scraps? Absolutely not. Why? Because the nature of humor plays an important role – and, as you may know from experience, one person’s humor may leave another person stone-faced.
In a law review article entitled “Just a Joke: Defamatory Humor and Incongruity’s Promise”, Laura A. Little perfectly summarized the fact/opinion dichotomy in U.S. defamation law. She wrote:
“[When considering satire defamation cases, judges must consider] the right of individuals and groups to be free from attack on their property, dignity, and honor versus the right of individuals to free expression. To make matters more complicated—in fact, much more complicated—the line must not only account for, but also respect, the artistry of comedy and its beneficial contributions to society.”
In other words, which takes precedence in United States law, reputation or free expression? The best answer: it depends on the details. Nine times out of ten parody and satire are seen as opinion and, therefore, non-defamatory. But every once in a while, when the moon is in the 7th house, and Jupiter aligns with Kepler 22b, a judge or jury will side with a satirically scorned plaintiff in a satire v defamation lawsuit.
The Mothership of All Satire v Defamation Lawsuits
The best-known satire v defamation U.S. legal showdown is Hustler Magazine v. Falwell – a lawsuit immortalized in Oliver Stone’s “The People v. Larry Flynt”.
One minute synopsis of the case: Falwell sued Larry Flynt for publishing a satirical advertisement in Flynt’s
nudy gentlemen’s magazine, Hustler. The faux ad implied that Falwell got it on with his own mom in an outhouse. At first, Falwell won; but, the issue made its way to the Supreme Court of the United States. And, in a ground-breaking, unanimous decision, all 7 justices ruled — albeit a few reluctantly — in favor of the pornographer. According to the court, the ad was pure satire/parody protected by the First Amendment.
Satire v. Defamation Q & A
Satire v. Defamation: What Is The Difference?
Defamation is a believable false statement of fact that causes material harm. Satire is “the use of humor, irony, exaggeration, or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues.” In simpler terms: defamation is a malicious lie passed off as truth; satire is a humorous skewering of a cultural or political event – regardless of whether or not you agree with the viewpoint.
What Is The Difference Between Parody And Satire?
Parody involves the manipulation of extant works, usually for comedic effect. Similarly, but not exactly, satire is an exaggerated commentary on an irritating or hypocritical issue.
Is Satire Legal In The United States?
In a word, Yes.
What Should I Do If Someone Deems My Satirical Work Defamatory?
If your work is truly satirical, keep calm and carry on. At the very least, consult a defamation attorney to ensure your satirical work doesn’t cross any legal lines. Cases exist where an artist considered his or her work transformative and satirical, but a judge thought otherwise.
Is There A Line That Satirists Can’t Cross In A Satire v. Defamation Scenario?
In a way, the worst thing a satirist can do is not make their work outrageous enough. If a “reasonable person” could realistically construe your work as truth, not art, you could find yourself in legal trouble.
Do you need to speak with an attorney well-versed in satire v defamation law? If yes, contact Kelly Warner Law today. We have successfully handled many defamation lawsuits, cleared people’s good names and helped businesses get past a bout of bad press. The longer you wait the worse the problem gets. Give us ring if you’re serious about clearing up your mess quickly and quietly.
Catherine L. Amspacher and Randel Steven Springer. Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs, 31 Wm. & Mary L. Rev. 701(1990), http://scholarship.law.wm.edu/wmlr/vol31/iss3/6