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Consumers of news are increasingly trained to be skeptical of what they read and hear from the media and political leaders. With a country increasingly divided in its political choices and media consumption, everything is “fake news” to someone else.
Suffice to say, this puts a great strain on defamation law. Judges — hardly the most media savvy — are forced to grapple with cultural products they hardly understand.
In defamation law, a defendant can prevail a number of ways. They can argue truth. They can argue opinion, which is protected by the First Amendment. They can argue lack of harmfulness. However, in rare cases, defendants can use the plaintiff’s reputation against them. There are certain public figures whose actions are so outrageous that any claim about them, no matter how outlandish, is plausible. Pop culture guru Bill Simmons calls it the Tyson Zone, in honor of boxer Mike Tyson, who owned tigers, bit someone’s ear off and got a face tattoo.
The legal equivalent of the Tyson Zone is the “libel-proof plaintiff,” a doctrine positing that certain disgraced individuals’ reputations are so beyond repair that libelous statements cannot damage them further. No matter the falsehood, defendants are free to beat a horse’s dead reputation.
Recent years have yielded little evidence that this doctrine is particularly robust, outside of an occasional Lenny Dykstra sighting. It’s an exceptionally rare category, and for good reason. Words matter.
Yet, an emerging trend threatens to turn this theory on its head, allowing defendants to weaponize their own outrageousness to escape liability. Call it the libel-proof defendant.
SOMETIMES THE BEST DEFENSE IS MORE OFFENSE
Take, for example, Barstool Sports, a loutish news and commentary site that found itself in the legal crosshairs of actor and podcaster Michael Rapaport for, among other things, falsely claiming he has herpes.
Courts traditionally parse alleged defamatory statements based on how a reasonable person would perceive them. Last month, U.S. District Court Judge Naomi Reice Buchwald dismissed Rapaport’s herpes-related defamation claim on the grounds that Barstool was engaging in “rhetorical hyperbole,” a category of overheated, non-literal speech protected by the First Amendment.
Rhetorical hyperbole has long served as an out for extravagant exaggerations that no one would take literally — what Seinfeld’s Jackie Chiles might call “outrageous, egregious, preposterous.” When the televangelist Jerry Falwell sued Hustler magazine in 1988 for publishing a fake interview with him about losing his virginity to his mother in an outhouse, the U.S. Supreme Court unanimously agreed that no one took it seriously.
In Barstool’s case, Buchwald was similarly persuaded that viewers would be hip to the joke. Finding that audiences recognize Barstool’s allegations as representing “often overtly biased” viewpoints, the court concluded that it would be “obvious to even the most casual observer” that Barstool didn’t really mean what it said.
That’s quite an assumption.
What if millions of Barstool partisans (aka “Stoolies”) aren’t “reasonable?” And what of the uninitiated who may encounter Barstool’s content on social media? Neither factored into the court’s analysis.
A LITIGATION TRUMP CARD
Barstool’s defense was built on a legal strategy straight out of Donald Trump’s playbook: Game recognizes game.
Back when Trump’s Twitter was active (#RIP), the masses delighted and cringed in equal measure reading the former president’s missives and musings on the platform. One person who fell into the latter camp was Stephanie Clifford, better known by her adult-film nom de guerre Stormy Daniels. Clifford, who claimed she had an affair with Trump in the mid-2000s, alleged that she had been threatened to leave the former president alone after she promised to divulge details of the affair to a magazine.
After she publicly unveiled a sketch of a Trump goon she claims approached her, Trump took to Twitter to repost a statement that claimed Clifford had lied about the incident. He referred to Clifford’s accusations as a “total con job” and claimed the sketch was of a “non-existent man.”
Clifford sued, but U.S. District Court Judge James Otero ruled in Trump’s favor, deeming the statement rhetorical hyperbole. He reasoned that because Trump tweeted in “an incredulous tone,” his words could not have been taken literally.
But wouldn’t a reasonable audience view Trump’s statement as a factual one, given that he would know whether or not he sent a goon after Clifford? And hasn’t it been shown that his millions of supporters take him seriously?
YOU F**ED UP. YOU TRUSTED US!
Once Trump established the “no reasonable person believes what I say” defense, it was inevitable that Fox News would run it.
In 2016, Karen McDougal made headlines over her alleged affair with Trump, for which she was paid $150,000 by the National Enquirer for an exclusive they never ran. Fox News host Tucker Carlson gamely defended Trump, stating that McDougal “approached Donald Trump and threatened to ruin his career and humiliate his family” if he didn’t give her money. Only, McDougal never actually approached Trump. She sued for defamation. Fox News won on rhetorical hyperbole grounds notwithstanding the fact that Carlson exhorted his audience: “Remember the facts of the story. These are undisputed.”
U.S. District Court Judge Mary Kay Vyskocil found that the “general tenor” of Carlson’s show would inform viewers that he is not “stating actual facts” about the topics he discusses and is instead engaging in “exaggeration” and “non-literal commentary.” Vyskocil concluded that “any reasonable viewer” would have an appropriate amount of skepticism about the statements Carlson makes.
But does that conclusion square with the evidence that Fox News viewers in fact believe Fox News content?
As Tucker Carlson said in his 2003 book, Politicians, Partisans, and Parasites, ‘I’m always amazed by how many people assume that talk show hosts are merely pretending to be outraged or interested in the things they talk about. … I believe every bit of it, sometimes more than I say on the air. They hate hearing this, but it’s true. In fact, I do believe everything I say.”
I LOVE INSIDE JOKES. I’D LOVE TO BE A PART OF ONE SOMEDAY.
If large swaths of the country believe a damaging lie about you, it’s cold comfort that a federal judge finds them unreasonable.
Courts are understandably struggling to understand how provocateurs’ words are understood by fans and casuals alike. But, rather than make assumptions about a hypothetical viewer’s media literacy, judges should embrace their roles as fact-finders if they are determined not to let a jury hear the case. Survey data, which is used in trademark cases to provide evidence of consumer confusion, could be of value.
Rhetorical hyperbole is there to protect obvious gags, not the subtle stuff. To be clear, not every judge is taking the bait. Last year, a Texas court rejected InfoWars host Alex Jones’ defense that he was merely engaged in rhetorical hyperbole when he called the Sandy Hook massacre a false flag. So while Barstool, Trump, Carlson — and now, ex-Kraken Sidney Powell — can claim they were winking to their fan bases, judges needn’t read themselves in on the joke. Consider the history of successful cases against the tabloids. While no reasonable person should believe what they read in the scandal sheets, real people do, and judges have punished harmful lies accordingly.
Courts should resist the temptation to play media critic and simply hold liars accountable.
Daniel Novack is a publishing industry attorney and chair of the New York State Bar Association Committee on Media Law. This article reflects his personal views only. Sara Shayanian is a third-year law student at the University of Pennsylvania School of Law.
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