Thursday, March 12, 2009
Joseph King (Tennessee) has added to his body of defamation work with Defamation Claims Based on Parody and Other Fanciful Communications Not Intended to Be Understood as Fact, 2008 Utah L. Rev. 875. Whether parodies are actionable as defamation depends on whether the statement is deemed factual (actionable) or protected opinion (non-actionable). In the article, King cautions courts against determining the statement as a whole is protected opinion, and, thus, failing to recognize potentially actionable portions of the statement.
King proposes a two-step process for distinguishing actionable from non-actionable statements. First, he identifies four core bases courts use to determine if a statement is protected opinion:
A statement will usually be deemed protected opinion if  it does not contain a provably false factual connotation;  if it cannot reasonably be understood as suggesting the occurrence of actual events;  if it consists of rhetorical hyperbole or an obvious epithet; or,  if it does not express or imply undisclosed, unassumed, or unknown (or not generally well known) defamatory facts.
King suggests courts use these four bases as a guide for analysis.
Second, he proposes courts carefully examine the statement's content:
[W]ith respect to the specific events expressly described in the parody, the court should determine whether the allegedly defamatory events expressly depicted in the parody were protected opinion.
[T]he court should also examine the possibility that imbedded defamatory facts were implied in the parody.