Like most everyone else, the lawyers here at Atkinson, Conway & Gagnon have been watching the Olympics. For some reason, the games have made me think of defamation law. All of those finely honed athletes are doing astonishing things for the glory of sport. But there is an awful lot of criticism that seems to go with the territory.
Take Uberswimmer Michael Phelps for instance. The unkind bloggers out there are zinging the big lug for his supposed lack of fashion sense. They ask (and affirmatively answer) the question: “Is Michael Phelps a douche?”
So what sort of a comment is defamatory anyway? The Restatement of Torts says that a communication is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (Say what?) I think that in the English language this means a statement is defamatory if it exposes the person to hatred, ridicule or contempt in the community. If the statement is written down its called libel. When its stated orally, its just slander. (If its written down and stated orally, then I guess you can call it whatever you want. Like maybe libelous slanderific bladderdash or perhaps slanderous libelicious poopycock.)
The law on defamation is a patchwork construct. The rules that apply are Byzantine and bizarre. Consider this: who gets the first cut on saying whether calling Michael Phelps a douche exposes him to hatred, ridicule or contempt in the community? Do we take a poll of community members to figure out if they think less of Phelps because of the comment? No, we do not. Instead, the law entrusts this critical decision to the one person who is probably least qualified to make it. This is a person who is by necessity out of touch with the rest of society, isolated in an ethical tower of solitude. And its a person extremely unlikely to know what passes for fashion amongst the i-generation. That’s right, the trial court judge is the one who makes the frontline decision.
(You might be inclined to ask: Did this joker just defame the trial court judges? Rest assured that I did not. You see, I can poke fun at the trial court judges as a group all that I want and I will not face any liability for defamation. To be defamatory, a comment about a group has to be reasonably understood as being directed a particular member of a group. And when it comes to each one of the particular members of the trial court bench, my view is that each is an intelligent, hard-working public servant who gets nowhere near enough appreciation or reward for the vital work he or she is doing.)
Bringing a defamation lawsuit is almost never a good idea. (Just ask Oscar Wilde or General William Westmoreland.) Defamation claims are subject to a number of unique defenses and the damages that can be proven are usually very limited. It used to be that the law allowed damages to be presumed, but this only occurred when it was a slander per se, or in some states, a libel per se but not a libel per quod. (To make matters worse, a libel per se was strangely something different than a slander per se put into writing. ) The U.S. Supreme Court got involved, though, and stirred up the pot by saying presumed damages are generally not permitted. See what I mean, defamation is a jury-rigged mess.
And, you have to determine whether the person supposedly defamed is a public figure or not. Because of a little technicality, which is commonly known as the First Amendment to the Constitution, public figures have to have thicker skins than the rest of us. So I’m on safe ground when I say: “George W. Bush did not fill out his beach volleyball bikini very well at the Olympics.”
And, thank heavens, satire and opinion are not defamatory. This means the folks at The Spoof! can get away with using the headline: “Chinese Olympic Gymnasts Really Third Trimester Fetuses, Claims IOC”. And the guys at The Onion can say that the Chinese have been doctoring public perception during the Olympics by having “cotton balls glued into sickly pandas’ bald spots.” (Hey, actual humor is not the test. Whether or not you think its funny, its still not defamatory.)
So is it defamatory to call Michael Phelps a douche? Well, he’s a public figure for sure now. And, no one is really going to believe that he is a hygienic rubber bag in the literal sense. So the statement is really one of opinion when you examine it. Given those considerations, I don’t think Michael has a good defamation claim. At least, I wouldn’t bother bringing it on his behalf.
Besides, truth is an absolute defense in defamation cases. Which is why I can say with impunity that: “In my opinion, gymnast Shawn Johnson resembles Gadget, the brainy cartoon mouse from Rescue Rangers.”