Academic journal article The Review of Litigation

Satire in Defamation Law: Toward a Critical Understanding

Academic journal article The Review of Litigation

Satire in Defamation Law: Toward a Critical Understanding

Article excerpt

I. INTRODUCTION.......................................................................45

II. THE AMERICAN HUSTLE DEFAMATION SUIT..........................45

III. SATIRE, PARODY, AND HUMOR IN DEFAMATION LAW...........50

IV. APPROACHING SATIRE THROUGH ITS DEVICES......................56

V. WITH MORE SCHOLARSHIP COMES BETTER OPINIONS...........60

VI. SATIRIC WORKS AND ANTI-SLAPP STATUTES......................63

VII. MORE THAN MEDIA AND DEFAMATION..................................66

VIII. CONCLUSION..........................................................................68

I. INTRODUCTION

With their blend of common law and Constitutional overlay, defamation suits are already complex, and when the litigation involves satire, the confusion multiplies. Courts and commentators offer an array of sometimes contradictory definitions of satire and how it differs-or not-from parody and humor. The literary devices that satire employs receive only surface treatment or are considered as isolated figures and tropes. A variety of different tests have emerged to deal with satire and its devices, leaving satirists in a difficult position of trying to defend a work that has an uncertain place in the law. This article discusses a suit filed by science writer Paul Brodeur against the makers of the Academy-Award-nominated film American Hustle as a frame to highlight the problems of satire in defamation suits and to suggest further avenues of study, including some of the practical benefits of additional scholarship.

II. THE AMERICAN HUSTLE DEFAMATION SUIT

The movie American Hustle features characters based loosely upon the two FBI agents and their conscripted con artist who orchestrated the Abscam sting of the late 1970s.1 In one scene, con man Irving Rosenfeld questions his wife Rosalyn about a fire she started by microwaving aluminum despite his admonition not to put metal in the new "science oven," a gift that Irving had received from Carmine, a New Jersey politician and a target of the sting.2 Rosalyn evades answering by a non sequitur that turns the fault back on Irving: because microwaves take all the nutrition out of food, she did them a favor by destroying the oven.3 When Irving expresses disbelief in her claim, Rosalyn answers, "It's not bullshit. I read it in an article. Look: by Paul Brodeur." She then hands Irving an opened magazine to prove her assertion.4

Unlike the characters Irving and Rosalyn, Paul Brodeur is a real person. When microwave ovens first came on the market in the late 1970s, he published several New Yorker articles, a book titled The Zapping of America, and was interviewed by People Magazine about the dangers of radiation on humans.5 In his analysis of the dangers of microwaves, Brodeur never said that microwaves affect the nutrition of food so he filed a defamation complaint against the filmmakers for $1 million.6

In their motion to strike the complaint under California's antiSLAPP statute,7 the filmmakers argued that Brodeur could not show a probability of prevailing because the reasonable viewer would not understand Rosalyn's words in a false and defamatory sense.8 They compared American Hustle to the movie at issue in Partington v. Bugliosi, a made-for-television "docudrama" about the parallel prosecutions of two alleged murderers, which resulted in the conviction of Partington's client and acquittal of Bugliosi's.9

In Partington, the Ninth Circuit wrote that an audience is "sufficiently familiar with this genre" to know that a docudrama relies upon "rhetorical flourishes in order to capture and maintain the interest of their audience" and that parts of the work are "more fiction than fact."10 The Ninth Circuit concluded that a single line of dialogue uttered by the Bugliosi character to his client implying that Partington inadequately represented the other defendant was "hyperbolic" and "a rhetorical device ... rather than an objective statement of fact. …

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