8:18am PT by Eriq Gardner
TMZ Moves to Cut Down Rapper's Lawsuit Over Penis Story
If TMZ were to write a story about the defamation lawsuit it's facing from Marques Andre Johnson, it might try a silly pun about how Johnson's johnson isn't big enough to extend from Pennsylvania to Delaware. In April 2014, TMZ erroneously reported that Johnson was the rapper affiliated with the Wu Tang Clan who cut off his own penis. (It was another rapper named Christ Bearer who did this.) Now, TMZ is looking to escape the lawsuit by bringing the judge's attention to the fact that while Johnson resides in Pennsylvania, he filed suit in Delaware.
This makes a difference because the statute of limitations for defamation claims in Pennsylvania is one year while in Delaware, it's two. Johnson says he learned of the report while watching a local news program in prison. The question now is whether the lawsuit was filed too late.
In a motion to dismiss, TMZ and parent company Warner Bros. point to Delaware's borrowing statute.
"Where the plaintiff’s claims arise in another state, and that state applies a different limitations period than Delaware, the borrowing statute mandates that the shorter of the two limitations periods shall apply," they argue. "There is no question here that Plaintiff’s defamation claims arose in Pennsylvania, where he resides and was imprisoned at the time of the alleged defamation."
As such, TMZ says that Johnson's deadline for filing a proper defamation claim expired April 16, 2015, one year after publication, and that there's no good reason to extend the limitations period.
"Indeed, although Plaintiff was incarcerated at the time the reports were published, under Pennsylvania law, 'insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter,'” states TMZ in its brief. "Moreover, because Plaintiff admits that he learned of the alleged libel at or around the time it was published, he cannot take advantage of the 'discovery rule,' which, under certain limited circumstances, may toll the statutory period when 'a party neither knows nor reasonably should have known of his injury and its cause at the time his right to institute suit arises.' ”
In that sense, TMZ could be saved by all the other news outlets that failed to fact-check and instead reported what TMZ had. Evidently, one of those re-reports ended up being broadcast into the prison where Johnson was incarcerated. That's how he discovered what was being reported.
As for those other news outlets, Johnson is suing many of them, too. BET Interactive, CBS Interactive, Daily News, Gannett Company, iHeartMedia, Interactive One, Real Times Media and Viacom are all co-defendants in this case.
Those publishers have filed a separate motion arguing for dismissal based on statute of limitations. They also paint Johnson as a public figure — he "was affiliated with one of the best-known hip hop groups of all time, Wu-Tang Clan," they point out — and say he has failed to plead actual malice.
It's argued that errors and mistakes in reporting fall within the "breathing space" that journalists must get in covering matters of public interest — here, a rapper cutting off his penis — and that the missing element in Johnson's complaint is facts giving rise to a reasonable inference that articles were published with knowledge of their falsity. Plus, TMZ is conferred some generous treatment. According to BET, CBS, etc., "Reliance on a reputable publication — here TMZ, an oft-cited celebrity news site — cannot constitute actual malice, as a matter of law, even if the original publication turns out to be mistaken."