July 15, 2014 1:35pm PT by Eriq Gardner
'Seinfeld' Writer Beats Kramer's Defamation Lawsuit
TV catchphrases can be annoying, but not necessarily taunting. Not that there's anything wrong with that.
Today's lesson in the high bar imposed on defamation plaintiffs comes from Kenny Kramer, the inspiration for the eccentric character of Cosmo Kramer on Seinfeld. Kramer sued former series staff writer Fred Stoller and Skyhorse Publishing over a description of what happened on one of Kramer's reality bus tours in New York.
In 1996, Stoller was a special guest on the tour and recounted his experience in a published memoir entitled Kramer's Reality. Stoller reported that on the tour, one of Kramer's employees kept screaming out famous lines from Seinfeld, including "No soup for you!" "The pick!" "Hello, Newman" and more.
"I just shook my head, amazed that a show as brilliant as Seinfeld could be so lamed down," wrote Stoller. "In the gay-dominated Greenwich Village, I had to hear [the employee] make everyone scream out, 'Not that there's anything wrong with that!' Once wasn't embarrassing enough, so he'd scream it out again like some sort of deranged cheerleader, 'Not that there's anything wrong with that!' "
Kramer filed a $1 million defamation lawsuit against Stoller for falsely accusing him and his company of "taunting persons from the gay community," and thus harming his reputation in that community and hurting his business.
"This is a lawsuit about nothing," Stoller's attorneys Francis Dehn and David Pierce responded in a motion to dismiss.
In a ruling on Monday that notes that New York is "well-known for the liberal values of its population," Judge Barbara Jaffe writes that Kramer has at least met the necessary showing that Stoller's statements were "of and concerning" the plaintiff. "A closer public association between an individual and an entity can scarcely be imagined," she writes.
Nevertheless, the defamation lawsuit unravels once the judge examines whether there's defamatory meaning in the catchphrase "Not that there's anything wrong with that."
"On its face, the phrase expressly conveys the notion that there is nothing wrong with being gay," writes Judge Jaffe. "In that respect, it cannot be considered homophobic. That the phrase is not expressly homophobic, however, does not mean that it is not reasonably susceptible of a homophobic meaning. In other words, is there really anything wrong with it?"
To answer the question, the judge attempts to be as observational as Jerry Seinfeld, albeit without the humor. She looks at the origins of the phrase — it featured in an episode titled "The Outing" where Jerry and George are mistaken for a gay couple — and says the "catchphrase speaks to the ambivalence a heterosexual male may feel about homosexuality," before adding that it "says little, if anything, about homosexuality."
She quotes some scholars and media pundits who have credited the episode with raising awareness of bigotry toward the LGBT community, eventually concluding that the average reader is likely to interpret the phrase differently than Kramer.
"In contrast to the subtlety of the satirical Seinfeld episode, Stoller's description of the Reality Tour reveals it as a parody of it," writes the judge. "The employee distorts and exaggerates the original use of the phrase, and Stoller himself characterizes it as 'shtick.' Although Stoller finds the exercise annoying, any reasonable reader would understand it as Seinfeld-related shtick, even if the phrase was repeatedly screamed out as the bus wended its way through 'gay-dominated Greenwich Village.' And, although pointing to gay people and taunting them with the phrase from within a large tour bus wending its way down tiny streets in Greenwich Village may reasonably reflect homophobia, nowhere does Stoller depict any pointing and he never uses the term 'taunting.' "
Here's the full ruling that poses "shtick" as a barrier to defamation, especially in the context of "the eccentric persona of the Kramer character on the show."