Tag Archive: Defamation


Lebanon Considering Legal Action Against Homeland Television Show

The Lebanese government is considering taking legal action against the television series Homeland for the show’s unflattering portrayal of Beirut. Homeland is an award-winning American television fictional series on Showtime that focuses on international affairs and terrorism. The threat of legal action stems from the second episode of the second season entitled “Beirut is Back” which aired on October 7, 2012. Specifically, the episode portrays Hamra Street as a war-torn narrow alleyway infested with terrorist activity. The episode features militants armed with assault weapons shouting commands in Arabic and harassing terrified women. In truth, Hamra Street is a vibrant business district packed with Western-style shops. The episode also features women wearing hair-covering hijabs; however, this is uncommon in this particular area. Furthermore, the episode was filmed in neighboring Israel, not in Beirut. For these reasons, Lebanon’s minister of tourism, Fady Abboud, called the episode a “serious misrepresentation” of the country’s capital and has threatened legal action.

The Lebanese legal threat raises some interesting issues over whether there is even a viable legal claim. At this time, Abboud has not specified what type of legal action Lebanon will pursue. Abboud said, “We are following the case legally. I raised this at the cabinet meeting and the president asked the minister for justice and the minister of communications to see what can be done.” Showtime and Twentieth Century Fox, which produces Homeland, have declined to comment. Similar legal threats were made by Kazakhstan against actor Sacha Baron Cohen over his fictional character Borat featured in the film Borat and the television series Da Ali G Show. In the film and television show, Cohen, a British comedian, pretended to be a foreign journalist from Kazakhstan named Borat. The Borat character depicts the country of Kazakhstan as anti-Semitic and claims that Kazakh citizens enjoy drinking horse urine, shooting dogs, and regard rape and incest as enjoyable pastimes. In 2005, Kazakhstan’s Foreign Ministry threatened to sue Borat for portraying Kazakhstan in a derogatory way. Kazakh officials never specified what legal theory they would base any legal action on.

The Lebanese legal threat also allows us to examine the prevalence of stereotypes in television shows and movies. Middle Eastern countries have long complained that the Arab terrorist stereotype has been allowed to flourish in Western popular culture. Professor Jad Melki, director of the Media Studies Program at the American University of Beirut, explains, “the portrayal of Arabs in the US is that we are all Islamists living in the desert, evil and angry all the time…If you look at US media, racist stereotypes of African Americans have all but disappeared but it is still acceptable to stereotype Arabs.” Indeed, the Homeland episode reinforces negative stereotypes about progressive and Westernized Arab areas like the commercial business district where Hamra Street is located. Lebanon certainly has a reasonable fear that this stereotype will deter tourism.

Because it remains unclear where the Lebanese government would sue Homeland and what legal theory they would base the lawsuit on, a full legal analysis is difficult.  Joseph Peter Drennan, an international lawyer, explains that the Lebanese government would have a lot of problems suing the show’s producers for defamation in an American court because there would be a lot of difficulty finding a plaintiff that would have standing. Drennan believes that the Lebanese government is likely considering a group libel claim which he believes would not be successful in American courts because it would be difficult to show that an individual suffered actual damages. In addition, the fact that Homeland is a fictional show makes any legal claim by the Lebanese government or an individual extraordinarily difficult. Furthermore, it will be very difficult for Lebanese officials to argue that the filming of the show constitutes a misrepresentation because it is a common practice in the film industry to film fictional shows in a location that portrays a different location. Interestingly, it also is possible that the Lebanese government may sue outside of the United States. Ultimately, where the suit is filed and the legal theory used by the Lebanese government matters. Regardless, a better solution for Lebanon is to turn to free market forces to effectuate change. Abboud has said, “I am calling on all young Lebanese adults to do what they need to do; to write blogs, to call the BBC and CNN to try to raise awareness that Beirut is not a city of Kalashnikov and war.” Indeed, the best course of action is for Lebanon to use the negative publicity in a positive way. Again, Borat can serve as an interesting example. In response to Borat, the Kazakhstani government ran advertisements promoting Kazakstan in major U.S. newspapers and commercials on major U.S. television stations. Kazakhistan’s foreign minister, Yerzhan Kazykhanov, now claims that Borat increased tourist visa applications ten-fold. “It was a great triumph for us,” the foreign minister said, “and I am grateful to Borat for helping to attract tourists to Kazakhstan.”

Taylor Swift is well known for her passionate songs about past boyfriends. Swift has been romantically tied to several well known celebrities including Taylor Lautner, Joe Jonas, and John Mayer. In June 2012, John Mayer claimed that Swift’s song “Dear John” is about him. Lyrics in the song include: “Dear John, I see it all, now it was wrong / Don’t you think 19 is too young to be played by your dark twisted games, when I loved you so?” During an interview with Rolling Stone, Mayer said that he felt “really humiliated” by the song. Mayer explained that “[i]t made me feel terrible” and that he “never did anything to deserve that.” Although Swift and Mayer were in a romantic relationship before the song’s 2011 release, Swift denies that the song is about him. Swift recently told Glamour that Mayer was “presumptuous” to think the song was about him. Swift added, “I never disclose who my songs are about.”

At this time, Mayer has not said whether he will pursue legal action against Swift. Although legal action is unlikely, let’s assume for purposes of this blog entry that Mayer decides to make a defamation claim against Swift. One of the key elements to consider in a defamation claim is whether Mayer could establish that the song was of and concerning him. As noted earlier, Swift denies that the song was about him and claims that she never discloses who her songs are written about. Mayer could certainly argue that (1) the title of the song (“Dear John”) is a direct reference to him and (2) the timing of the song’s release and the specific lyrics indicate that he is the one she is singing about. Mayer may also argue that they had a very public relationship that was widely reported by the media; however, this still doesn’t establish that the song is necessarily about him. It is highly unlikely that Mayer could show that a third party believes that the song is about him. Ultimately Mayer would face a steep uphill legal battle.

Another major issue in a possible legal action against Swift is that Mayer is clearly a public figure. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that public officials are required to show “actual malice.” The Court defined “actual malice” as “knowledge that [the statement] was false or reckless disregard of whether it was false or not.” Id. at 280. Three years later, the Supreme Court extended the actual malice standard to public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). Because Mayer is a public figure, he will have to prove that Swift’s lyrics satisfy the actual malice standard. As such, Mayer’s public figure status makes his case considerably more difficult. As noted earlier, it would be very difficult for Mayer to establish that Swift’s song was about him. It is also highly unlikely that Mayer would be able to show that the lyrics were either false or that Swift was reckless. In brief, the song’s lyrics simply do not support a conclusion that the lyrics were false or reckless.

Similar hypothetical legal claims have been discussed in regards to Carly Simon’s 1972 hit song “You’re So Vain.” Like Swift, Simon has refused to disclose publicly who her famous song was about written about, thus making any suit against her highly unlikely. However, the analysis would certainly change if a person is specifically identified in a song. For example, Lindsay Lohan sued rapper Pitbull in 2011 for his song “Give Me Everything” that included her name. The song included the lyrics: “I got it locked up like Lindsay Lohan.” As a result, Lohan sued Pitbull and claimed that the song hurt her reputation. Specifically, the lawsuit claimed that “[t]he lyrics, by virtue of its wide appeal, condemnation, excoriation, disparaging or defamatory statements by the defendants about the plaintiff are destined to do irreparable harm to the plaintiff.” Pitbull responded that he believed mentioning Lohan would enhance her career and keep her relevant. Interestingly, Lohan had filed a $100 million lawsuit against E-Trade only a year earlier for a commercial she alleged was about her.

In conclusion, the three most important factors to remember: (1) Swift should continue to refuse to publicly divulge who her songs are about; (2) legal action against Swift by bitter celebrity ex-boyfriends like John Mayer are unlikely to succeed; and (3) Lindsay Lohan is lawsuit happy.

No Love in Love and Hip Hop Atlanta: When Reality TV Gives Rise to a Real Lawsuit

On September 5, 2012, Mickey “Memphitz” Wright Jr., a former Jive Records executive, brought a cause of action for defamation in the United States Northern District of Georgia against Kimberly Michelle Pate, his former girlfriend, the owners of the VH1 network and the producers of the network’s hit show Love and Hip Hop Atlanta.  The defamation suit stems from allegations that were aired during an episode of the show in which Pate accused Wright of embezzlement and domestic physical abuse during their former relationship.

Love and Hip Hop Atlanta is a popular reality television show with a large fan base.  The show first aired in June 2012 with 1.9 million viewers and has only gotten more popular with each episode evidenced by the 4.4 million viewers watching the season finale on September 3, 2012.  These numbers represent the number of people who perhaps were exposed to these allegations made by Pate while watching the show.

A major issue in Wright’s suit for defamation is that he is a former record executive, and known to a considerable population in the music recording industry, so it must be determined whether or not he would be considered a public figure.  In Curtis Publishing Company v. Butts, the United States Supreme Court  stated “[a] ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent…” and in Gertz v. Robert Welch, Inc., the Court stated individuals who “by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures.”  This classification is important because suits for defamation are considerably harder for a public figure plaintiff to win because he must show that the defendant made a false statement with “actual malice.”  To show Pate acted with actual malice, Wright must prove, by clear and convincing evidence, that at the time the statements were made she knew them to be false or was reckless as to whether they were false or not.  To prove the owners of VH1 and the producers of the show acted with actual malice, Wright must prove, by clear and convincing evidence, that at the time the statements were aired the defendants knew the statements were false or acted with reckless disregard as to whether the statements were true or not.  Another issue Wright may have to contend with is the fact that Pate did not actually say his name when the statements were made.  She simply referred to an unnamed former record executive.  Because Pate is a former R&B singer and thus in the recording industry herself, many people in the industry that knew of their relationship and watched the show were able to make the connection and subsequently, these allegations have been reported all over various news stations and websites specifically naming Wright as the purported offender.  According to Wright, this publicity has caused him emotional distress and the inability to make a higher income in the future due to the impairment to his reputation which is one of the elements he must prove to make his claim for defamation.

Wright is suing for $15 million in compensatory damages and $50 million in punitive damages and must prove actual malice on the part of each defendant, particularly necessary in order to be awarded punitive damages in a defamation suit.  In Merco Joint Venture v. Kaufman, Merco, a wastewater disposal company, was shown in a bad light on a local television show broadcast by Tri State Broadcasting Company.  Merco brought suit for defamation against the reporter on the show, the producers of the show and Tri State, the owner of the television station itself.  The court addressed the responsibility of a broadcaster before a show is aired and stated that those responsible for the show’s actual content are more responsible for the content that is aired and it would be economically unfeasible for a broadcaster to monitor every feed that comes from a network source.  Furthermore, the court looked to evidence such as internal memorandum between the producers of the show, the show’s original version in relation to the edited broadcast version, and actual knowledge the reporter and producers of the show had regarding the content of what was being aired to conclude that a jury could reasonably find that the reporter and producers acted with “malicious intent” in shooting, editing, and producing the footage that was eventually aired, but not the broadcaster.

Therefore, it may be difficult for Wright to prove the owners of the VH1 network acted with actual malice if he cannot prove that it is their responsibility to be aware of the truthfulness of all content of every show that is aired on their network.  However, if Wright has evidence tending to show that his former girlfriend, through actual knowledge of the events, knew that the statements she made were false he could win his defamation suit against Pate and if he can show evidence that the producers of the show were aware that the statements made by Pate might be false or if they acted with reckless disregard as to whether the statements were false or not and edited the show in a manner that aired the statements anyway, he may have a viable defamation claim against the producers of the show as well.

The recent Rush Limbaugh controversy has generated two interesting developments in media law. The controversy began about two weeks ago when Limbaugh referred to Sandra Fluke, a Georgetown law student, as a “prostitute” and a “slut” after she testified to congressional Democrats regarding the health care mandate’s coverage of birth control. Shortly after her testimony, Limbaugh said on his talk radio show, “What does it say about the college coed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.” The first interesting development in media law is that Gloria Allred is leading an effort for Limbaugh to be charged with defamation over the comments. Allred, a well-known celebrity lawyer, recently sent a letter to the Palm Beach County Attorney’s Office saying prosecutors should consider charging Limbaugh under an 1883 law making it a misdemeanor to question a woman’s chastity. Allred explains, “He [Limbaugh] has personally targeted her and vilified her, and he should have to bear the consequences of his extremely outrageous, tasteless and damaging conduct.” The second development is that Jane Fonda, Gloria Steinem, and Robin Morgan are calling for the Federal Communications Commission (FCC) to prevent Limbaugh from continuing his show. In a recent editorial, the three activists argued that if enough listeners complain about Limbaugh, then the stations that carry him could be denied license renewal. One commentator notes that the FCC effort is likely futile because (1) it is logistically difficult based on the nature of the FCC license renewal process; (2) the effort would raise serious First Amendment concerns; and (3) the effort could create a political backlash.

Breitbart: Defense After Death

The conservative blogger, Andrew Breitbart, passed away due to natural causes outside of his Los Angeles home.  Breitbart gained notoriety by being the first to post semi-nude photographs of Anthony Weiner.  The postings lead to Weiner’s resignation from his position as a congressman. More recently, Breitbart has been the lead defendant in a closely-watched defamation lawsuit in Washington. Former U.S. Department of Agriculture official Shirley Sherrod sued Breitbart and Larry O’Connor, accusing them of making defamatory claims of racism against her by posting a edited clip of a speech she gave to a NAACP group.  O’Connor, Editor-in-Chief of Breitbart.tv and Breitbart denied the alleged wrongdoing, claiming the posted clip was protected under the First Amendment.

In house counsel for Breitbart’s Big Journalism Joel Pollack suggests in an interview that even though Breitbart has passed away, he believes this will not have much of an effect on the defense against the suit brought by Sherrod. Michael Rothberg of  the firm Dow Lohnes said, “If the defendant had a very good story to tell, and would be a very good witness, then not being able to tell that story to a jury is going to be harmful.” It is clear that the death of Andrew Breitbart will have an impact on the defense against Sherrod’s defamation suit, but since there is a co-defendant that might be able to tell Breitbart’s story, it is unclear what the impact will be.

Possible Defamation on Weeds

The newest episode of Weeds, “Fran Tarkenton” aired Monday November 8, 2010 on Showtime. The sixth season of the hit series follows the pot-peddling Botwins on the run across America, after Shane kills a Mexican crime boss. “Fran Tarkenton” features Nancy Botwin (Mary-Louise Parker) giving an interview to a reported named Vaughn Coleman (Eric Lang). Vaughn has been following Nancy suspiciously and when she confronts him, Vaughn reveals himself to be a journalist from a news station in San Diego, who has been assigned the task of writing Nancy’s story.

Nancy agrees to an interview after Vaughn threatens to make up the missing parts of her story if she will not give him the information he needs. Nancy starts to give him completely bogus information, but Vaughn already knows a lot more than Nancy expected. Vaughn’s theory behind Nancy’s disappearance is that Shane (Nancy’s youngest son) killed Pilar Zuzua, the Mexican crime boss, which is true. Nancy needs to protect her family and so agrees to be more forthcoming. Should Vaughn Coleman decide to fill in the blanks of Nancy’s story with deliberate false information, Nancy may have a defamation claim against him.

Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.

The elements of a defamation claim are:

publication of a statement of fact
that is false,*
unprivileged,
has a natural tendency to injure or which causes “special damage,” and
the defendant’s fault in publishing the statement amounted to at least negligence.

If Vaughn were to include false statements in his publication of Nancy’s story, all the elements would be satisfied. When the story is actually published, it will include statements of fact about Nancy Botwin’s life. The information uncovered by Vaughn is unprivileged, and his fault in publishing the statement would amount to at least negligence, if he does intentionally make up missing parts of the story. The element requiring injury would most likely be easily satisfied, given that Nancy’s story is rife with criminal activity and immoral behavior. If Vaughn makes up one fact to supplement any truths of Nancy’s life, that fact will most likely be injurious to Nancy and her reputation, due to the scandalous nature of her story.

California’s Anti-SLAPP laws could become an obstacle to Nancy’s possible defamation claim. SLAPP stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP laws include protection for reporters concerning defamation claims. In the defamation suit, Simpson Strong-Tie Company, Inc. v. Gore, the Ninth Circuit stated that a statement would not be regarded as defamatory if it were “substantially true.”

A statement is not false for purposes of a defamation claim if it is substantially true. (Vogel, supra, 127 Cal.App.4th at p. 1021.) Liability is precluded “‘”if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.”

“It is sufficient if the defendant proves true the substance of the charge, irrespective of slight inaccuracy in the details, ‘so long as the imputation is substantially true so as to justify the “gist or sting” of the remark'”

So, if Vaughn’s story ends up publishing mostly true statements about Nancy’s life, any supplemented information may be viewed as a slight inaccuracy by California courts. Vaughn’s false information must be the type of false statement that would injure Nancy’s reputation more than the true statements, or the general gist of her story already did for the defamation claim to succeed.

Vaughn ends up giving Nancy cash for the interview. Though this is not a legal issue, Vaughn broke one of the commandments of good journalism: “Though shalt not pay for information,” according to an article in the American Journalism Review. Though the practice of paying for interviews is viewed as taboo, it is not altogether uncommon according to the AJR. It is technically okay under the Radio-Television News Directors Association’s Code of Ethics to purchase information, but the practice of “checkbook journalism” is generally discouraged.

Parody or Publicity

Saturday Night Live‘s 36th season premiered on September 25, 2010.  The cold open depicted a meeting between Christine O’Donnell, the Republican nominee for the Delaware Senate special election, and two members of the Republican National Committee.  Kristen Wiig portrayed O’Donnell and Jason Sudeikis and Bill Hader appeared as the members of the RNC.

The skit’s humor came from the portrayal of O’Donnell participating in activities that would either be controversial or condemned during a campaign.  Skits like this one, which are a staple of Saturday Night Live, make jokes at the expense of celebrities and political personalities.  Such skits are parodies of the person and are  protected under the First Amendment.

Those whose lives are in the public eye and are subjected to media discussion have less privacy because of their status.  Status as a celebrity also provides that person the ability to access the media as the public has an interest in the lives of celebrities.  As a candidate for U.S. Senate, O’Donnell is considered a public official. (see Ocala Star-Banner v. Damron (1971))  O’Donnell also has status similar to that of a celebrity as she has made many appearances on television.

Political commentary, skits and cartoons like those that appear on The Daily Show, Saturday Night Live and in magazines and newspapers are considered satire.  Some of these portrayals may seem to have the intent to show actual malice, however they are not subject to defamation claims.  Such portrayals are parodies and are protected by the First Amendment to the Constitution of the United States.  The framers of the Constitution protected these rights in order to prevent censorship of the media and provide the right for the media to criticize the government.

Saturday Night Live’s long tradition of political satire began in its first season when Chevy Chase portrayed Gerald Ford as a clumsy man.  Since then, each political figure or celebrity has been a potential subject for a parody.  Christine O’Donnell’s status as a political candidate and TV contributor reduces her right of privacy compared to a private individual.  Shows like Saturday Night Live are protected by the First Amendment and therefore do not infringe on the rights of celebrities like Christine O’Donnell.




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