Last night I was writing a hilarious but acerbic joke about an ex-girlfriend when I paused to wonder:
“Can I really say this on stage? She might sue me!”
Could she sue me? I did a little research and discovered that yes, she could—my calling her a total psycho who huffs glue and has a Christopher Walken tattooed above her lopsided vagina could easily land me in court. I needed to protect myself.
And so, I give you: Scotch’s Defamation Law for Comedians.
Defamation
Defamation comes from the Latin defamatus, meaning infamous. Its practical meaning varies from state to state in the U.S., but it can be summarized as:
1. Information presented to others…
2. that’s offered as believable fact…
3. about a recognizable person or persons…
4. that harms their reputation…
5. because the information isn’t true.
Breaking it down, the “information” could be a photo, newspaper article, advertisement, TV show, comedy bit, or web site. Defamation in print called libel; defamation in speech—which applies more to stand-up comics—is called slander. Either way, the defaming information must be seen or heard by at least one person other than you and the plantiff—it has to be made public.
Next, the information must be presented as true and believable to be defamatory (#2 above). Let’s say you drew a scathing cartoon of your boss having sex with monkeys in a bathhouse. If your boss sued you for defamation, you could just stand up in court and say, “Look, the cartoon isn’t believable, Boss. Even a monkey wouldn’t fuck you.” Booyah! You’re the next Johnny Cochran!
The information must concern a recognizable person or persons (#3). Joking about your “closeted blonde ex-husband” isn’t defamatory if you have five blonde ex-husbands, provided you don’t give enough information to identify the closeted one of the bunch—unless, of course, all of your ex-husbands are closeted, in which case you REALLY need to stop being such a fag hag.
The last two requirements go together—that the information must harm the target’s reputation (#4) and be untrue (#5). If you publicize that your proctologist is a terrible doctor, it isn’t defamation if he’s been successfully prosecuted for malpractice; not only is your statement true, but that assman’s reputation has already been flushed, so you’re not really doing any damage.
I should add that celebrities, CEOs, politicians, and other public figures have a harder time proving that something you say caused them harm, since public figures are pretty much being ridiculed all the time.
And so, here they are—four comedian-specific tips for not getting sued by your arch enemies, spurned lovers, or Tom Cruise:
1. Tell the truth. Lawyers call telling the truth the “perfect defense” against defamation. Even if it’s unflattering, a fair report about a person won’t qualify as libel or slander. Calling your brother “a dirty thief” on stage isn’t going to get you sued if he spent five years in San Quentin for burglary.
2. Use descriptives that can’t be proven or disproven. In the defamation case Vogel v. Felice, a California court ruled that calling someone a “dumb ass” is disparaging, but it’s nothing that can be proven or disproven—it’s a personal opinion. Calling someone “dumb”, on the other hand, could be ruled as defamatory because it implies the person’s a moron with a bowl haircut.
3. Use ridiculous portrayals, caricatures, or hyperbole in your setups until no reasonable listener would believe that what you’re saying is literally true. Even Jerry Falwell would’ve agreed—if he hadn’t been so busy partying with his mother.
4. Change the descriptions of the people in your jokes until even their own families won’t recognize them. A YouTube video of you denigrating your ex-wife’s real name, her stumpy legs, her kleptomania, her dingy house at 1234 Main Street, her occupation as a porn fluffer, or the way she shaves her pubes could be dangerous in her lawyer’s hands. In 2009, a woman sued her comedian daughter-in-law for making her the butt of too many jokes—and also because the mother-in-law was identified by name. So watch out!
Many states have a statute of limitations for defamation. A suit against a comedian in California must be brought within one year of the alleged defamation’s first instance, for example. If you called your sister a whoring slut 13 months ago, hey, check your local laws—you might be in the clear!
Invasion of Privacy
While you’re busy on stage deconstructing your ex-boyfriend, watch out for invasions of privacy, which are exactly what they sound like—statements violating the target person’s reasonable expectations of privacy. As with all things, what passes for “reasonable” depends on the state in which you live, your community’s standards of reasonableness, the lawyers doing the arguing, and the wig holding the gavel.
Invasion of privacy comes in several varieties, but two are most applicable to comedians:
revealing private, unpublished facts about a person, such as sexual preferences, health conditions, etc.
portraying a person in a false light, such as saying things about the person that would be deemed highly offensive or damaging (especially if they’re private or blatantly untrue)
Plaintiffs suing for invasion will claim to have suffered emotional distress (i.e., their feelings were hurt—even if they deserved it). Note that this is different from defamation; you can be sued for invasion of privacy without being sued for harming someone’s reputation. There are examples of this on the Internet where a web site posted damaging information about a person, but included a disclaimer saying that the details might be untrue. Be forewarned that disclaimers may protect against defamation, but not against claims of invasion of privacy or emotional distress.
The defense against invasion of privacy is similar to defamation’s: change the details in your setup until no reasonable person could identify the target and/or believe that what you’re saying is literally true. On the other hand, if the person’s private information is already widely known—or you’re just a crazy maverick—then hell, go for it.
Bibliography & Links
“Review of libel law called for by comedians.” Times Online, June 4, 2009. http://www.timesonline.co.uk/tol/news/article6426195.ece
“Blogger’s Legal Guide - Online Defamation Law.” Electronic Frontier Foundation. http://www.eff.org/issues/bloggers/legal/liability/defamation
“Bloggers beware: You’re liable to commit libel.” Steve Tobak for CNet News, November 21, 2007. http://news.cnet.com/8301-13555_3-9821584-34.html
Brooklyn woman sues comedian daughter-in-law. Alex Leo for Huffington Post, August 27, 2009. http://www.huffingtonpost.com/2009/08/27/sunda-croonquist-on-the-t_n_270390.html
“‘Dumb Ass’ is not a defamatory term [in Vogel v. Felice].” Evan Brown for Internet Cases, March 28, 2005. http://blog.internetcases.com/2005/03/28/california-court-of-appeal-dumb-ass-is-not-a-defamatory-term/
“Hustler Magazine v. Falwell.” Wikipedia free encyclopedia. http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
“Invasion of Privacy.” The First Amendment Handbook, 2003. http://www.rcfp.org/handbook/c02p03.html
DISCLAIMER: The information above may not apply equally in all states and I am not a lawyer, so it’s not warranted to save your ass—especially the part about the monkeys.