“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?
• Can a satirical work be 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

Blogger Pokes Fun At Author

In 2013, a court dismissed a $120 million satire v. defamation lawsuit against Esquire Magazine. Jerome Corsi 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 – tickled by the bad timing — posted a satirical recall notice on Esquire.com. Warren titled his blog post: “BREAKING: Jerome Corsi’s Birther Book Pulled From Shelves!”

Blogger Adds “Satire Disclosure”

According to Corsi, Warren’s post sent bookstores into a tailspin, as they rushed to comply with the “recall,” pulling 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 sh–”. (Hey, you win some; you lose some.)

Defamation Lawsuit Filed

Unsatisfied with the disclaimer, Corsi filed a defamation lawsuit against the author and Esquire. The book-writing birther argued that Warren’s fictitious recall was malicious, false, and damaged his reputation. Since slander and libel plaintiffs must typically prove material harm, Corsi alleged that the blog post hurt book sales.

Judges: “Satire is not Defamation.”

A D.C. Circuit panel ruled against Corsi. Upon review, the judges reasoned that a “reasonable reader” wouldn’t believe Warren’s posting. While the bench did admonish Warren’s language as “salty,” it also affirmed that opinion and satirical speech were protected by the First Amendment.

Ultimately, the Court reasoned:

1. Warren’s post was a “public statement on an issue of national concern,” and therefore not defamatory;
2. On the people who believed the post to be true, the judges opined, “It is the nature of satire that not everyone gets it.”; and
3. 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,” and therefore wasn’t 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? 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 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 other words: 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 work doesn’t cross 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?

The worst thing a satirist can do is not make their work outrageous enough. If a “reasonable person” could realistically construe a work as truthful, legal trouble could follow.

Do you need to speak with an attorney about a defamation issue? Contact Kelly Warner Law today. We have successfully handled countless defamation lawsuits, cleared people’s good names, and helped businesses overcome a bout of bad press. It is possible! Give us ring to learn about getting your reputation back on track, quickly and quietly.

Other Sources
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