September 23, 2011 4:56pm PT by Eriq Gardner
Dwarf Skit on E!'s 'The Soup' at Center of First Amendment Battle
A couple years ago, E!'s comedy clip show The Soup featured a short spoof ad for a fictional TLC reality show that was to be named Fertile Little Tattooed Pageant Parents Who Enjoy Baking. The idea was to aggregate the looniest yet perpetually popular reality TV memes together, so The Soup took a photo of achondroplastic dwarves and altered the image to include outlandish elements, including 27 children, many of whom had matching tattoos and were wearing lingerie over their clothing.
Now the show is facing a legal threat from the dwarves who were shown during this segment. The lawsuit in Philadelphia is quickly developing into a test of whether a suggestion that someone deserves a wacky reality TV show should receive First Amendment protection as a parody.
Cara and Gibson Reynolds, a dwarf couple, say their photo was seemingly ripped from an AP article about a pretty serious subject: the ethical boundaries in allowing parents to create "perfect" babies. In the article, the Reynoldses were quoted as saying, "You cannot tell me that I cannot have a child who’s going to look like me.
The couple sued Comcast, E! Entertainment, and Soup host Joel McHale with claims of defamation, misappropriation of likeness, false light invasion of privacy, unjust enrichment, and intentional and negligent infliction of emotional distress.
On Thursday, Michael Berry, the attorney representing Comcast, was in a Philadelphia court in an attempt to get the lawsuit dismissed.
The skit "may have been crass, may have been juvenile, may have been tasteless ... but it's not actionable under the law," Berry told a judge, according to Courthouse News Service.
Comcast argued that suggesting someone should be on a reality show is not defamatory, and pointed to the Supreme Court's famous decision in Hustler Magazine v. Falwell where the justices unanimously ruled that a cartoon image of Reverend Jerry Falwell in a drunken incestuous rendezvous with his mother was parody, and thus protected by the First Amendment.
"This piece is pure fantasy," said Berry, adding that no actual facts about the Reynolds were broadcast. "Whether you call it parody, comedy or just a bad joke, nobody would take this seriously about the Reynolds."
In response, Herman Weinrich, an attorney for the couple, argued that his clients, unlike Falwell, weren't celebrities, that there was an implied suggestion that the dwarf couple made "their living by exploiting their children," and that the mere fact they they're dwarves "shouldn't make them the object of ridicule, of scorn and contempt."
The case raises plenty of issues: Who exactly is a public figure in the age of reality television? Does giving an interview and agreeing to be photographed turn private people into limited public figures? Forever? And as television continues to go the distance in seeking out the bizarre, what exactly is ripe for parody? Heck, what is parody anyway?