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Suing over satire? Let's be reasonable

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

In Texas, at least, the reasonable person isn’t so reasonable anymore.

From accidents to zoning disputes, judges and juries across the country depend on the reasonable person to help them decide cases. Would the reasonable person have swerved to avoid the collision? Would the reasonable person know that foul balls fly into stands at baseball games? Would the reasonable person reach his hand into a snow blower before turning it off?

The reasonable person also plays an important role in libel cases, as an offended subject cannot successfully sue a newspaper or broadcast station without first proving that the reasonable person understood the report to communicate a false statement of fact about him or her. If the recent opinion in New Times, Inc. v. Isaacks is any indication, however, Texas judges don’t think much of their state’s reasonable person.

At issue in Isaacks was a satire published in the Dallas Observer, a weekly alternative tabloid known for its investigative reporting. Written by reporter Rose Farley, the faux news story ridiculed the way Judge Darlene Whitten and Denton County District Attorney Bruce Isaacks handled the case of 13-year-old Christopher Beamon, who had written a story depicting the shooting deaths of a teacher and two students. At Isaacks’ request, Whitten ordered Beamon held in custody for five days while Isaacks considered delinquency charges.

In the satire, which was headlined “Stop the Madness,” Farley wrote that Whitten had ordered a 6-year-old student detained for 10 days for a book report the student had written about the children’s classic, Where the Wild Things Are. The article quoted Whitten as saying, “Any implication of violence in a school situation, even if it was just contained in a first-grader’s book report, is reason enough for panic and overreaction.”

The article also quoted Isaacks as saying, “We’ve considered having [the student] certified to stand trial as an adult, but even in Texas there are some limits.” That Farley’s tongue was planted firmly in cheek also was evident by her report that courthouse security officers had ordered the student shackled because her school record contained “reprimands for spraying a boy with pineapple juice and sitting on her feet.” The article then went on to explain the Beamon case.

Unfortunately, Farley’s attempts at humor were lost on many. Some readers believed the article referred to a real case and complained to the paper about the officials’ conduct. Other readers complained directly to Isaacks and Whitten. Some local news media contacted Isaacks and Whitten for comment about the “case.” At the officials’ request, the Observer clarified in its next edition that the article had been a satire. In that clarification, the Observer described those who had believed the article to be true as “cerebrally challenged” and “clueless.”

Unsatisfied, Whitten and Isaacks sued the Observer, alleging the paper had intentionally published false and defamatory statements about them. The Observer asked the trial court to dismiss the case, primarily on the grounds that no reasonable person could have understood the article to refer to a real case. The trial court, citing the reaction to the article, refused the paper’s request.

The appellate court affirmed. While recognizing that “[s]atire and parody are among the proven and recognized tools utilized by writers to illustrate a political point,” the court said the lawsuit could proceed because the article failed “to provide any degree of notice to the reasonable reader that it was a satire or parody.”

In reaching this conclusion, the court inexplicably ignored the “notice” within the article (the headline, the unbelievable fact pattern and the ridiculous “quotes”) and instead focused on the facts that the satire mentioned real people, used a photograph rather than a cartoon and was published as the lead story in a news section. In this context, the court said, a reasonable reader could have understood the article to be real. In other words, the court appeared to be saying, satire is protected only if it is not very good.

In addition to its dumbing down of the reasonable person, the decision in Isaacks is significant for its failure to recognize that satire — speech that is intentionally false — should not be subject to the laws that govern other political speech. In general, speech about public officials is protected unless the speaker knows the statement is false or recklessly disregards whether the statement is true. This “actual malice” standard protects robust public debate by punishing only those speakers who intend to defame public officials.

The actual-malice standard offers no protection for satire, however, and the Observer therefore argued on appeal that the standard in satire cases should be whether the speaker intended to pass off falsity as fact. While a few courts have applied this modified standard in satire cases, the court in Isaacks refused to do so, saying it saw no reason to vary from traditional actual-malice analysis.

The court’s opinion, of course, does not mean Whitten and Isaacks will win their suit. Instead, it means only that they are entitled to attempt to convince a jury that the article was reasonably understood to report that they had jailed a 6-year-old for the content of a book report. Let’s hope the jury’s verdict proves that, despite what the appellate court thinks, the reasonable people of Texas know a satire when they see one.


Texas appeals court allows libel suit over satirical story to proceed

In 1999, judge, district attorney sued after weekly published fictional story about first-grader jailed for book report on Where the Wild Things Are. 05.21.02

Newspaper that ran satirical piece loses 2nd appeal

Texas appeals court again rejects Dallas Observer's request that libel suit be dropped over article that parodied actual arrest of a student. 11.26.02

Texas justices find humor in newspaper satire

Unanimous high court sides with Dallas Observer in libel case, says reasonable reader would realize disputed 1999 story wasn't true. 09.03.04

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