Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, March 11, 2005

The Defamation Derby, Continued

In an unpublished and extremely brief ruling, the 5th Circuit has held that CBS' newsmagazine "60 Minutes" did not defame members of a Mississippi jury shown in an episode called "Jackpot Justice". The plaintiffs had claimed, among other things, that the show libelled them, invaded their privacy, and inflicted emotional distress. In upholding the lower court's dismissal of the plaintiffs' motion to remand for lack of complete diversity and the grant of defendants' motion for judgment on the pleadings, the 5th Circuit "agree[d] with the district court's characterization that: "at best [the statements in the 60 Minutes broadcast] were directed towards Jefferson County jurors in general. Thus, they lack the specificity required to impose liability....We therefore affirm the district court's order for essentially the reasons as well-stated in its memorandum opinion and order." The case is Gales v. CBS Broadcasting, Docket no. No. 04-60710 (decided March 3, 2005).

Meanwhile comes this ruling from the United States District Court for the Northern District of Georgia in the matter of Russ Brock et al., versus Viacom International over an episode of Penn & Teller's controversial series Bullshit!which is broadcast on Showtime. The plaintiffs sued the defendants over taped interviews that made up part of an episode titled "Creationism" aired during the show's first season. The defendants moved to dismiss. "According to the plaintiffs when they met with the defendants to discuss the television series and consider the interviews, the defendants represented that the series had not yet been named and that it was a program about topics that Americans are passionate about. After agreeing to sit for the interviews, the defendants asked the plaintiffs to sign releases. While reviewing the releases, the plaintiffs noticed language indicating that the taped interviews might be used for satirical or humorous purposes. The plaintiffs requested an explanation of this language from the defendants, and the defendants responded by saying that the releases were a standard form that is used for all types of television programs. The defendants told the plaintiffs "not to worry" because the television program was "not that kind of show."...Based on these representations, the plaintiffs agreed to sit for the taped interviews. Plaintiff Russ Brock was paid $300 for the interview...As it turned out, the show was already entitled "Bullshit!" and the content of the Episode was a combination of interviews and film clips from the media's coverage of the public hearings before the Cobb County School Board, together with acerbic commentary by Penn & Teller. Penn & Teller's commentary was highly critical of the plaintiffs' views on the teaching of creationism in public schools....The plaintiffs complain that, instead of being a program about things that Americans are passionate about..."the program was an aggressive, irreverent expose of the beliefs of Christianity and Creationism, and a personal attack on Plaintiffs for their desire to have both Creationism and Evolution taught as alternate theories in the Public School System of Cobb County."

In analyzing the Defendants' motion to dismiss the court applied the Hepps standard and determined that the plaintiffs were private figures. Nevertheless, it found that the speech involved was of public concern, and that under Hepps, the plaintiffs had the burden of showing both falsity and fault. Since the episode showed statements that the plaintiffs themselves made and that they did not dispute, and that the other statements of which they complained were protected opinion, the court granted defendants' motion to dismiss. "The plaintiffs' primary complaint is not that any of the statements made in the Episode were false, but that the show advocated a viewpoint different from theirs, and, in doing so, criticized their position in an "aggressive" and "irreverent" manner....But the Supreme Court has rejected the notion that harsh criticism of a viewpoint can constitute actionable defamation....Because plaintiffs have failed to allege that any of the statements contained in the Episode are false and because the plaintiffs cannot prove the falsity of the complained of statements given that those statements are opinions, the plaintiffs' defamation-type claims fail as a matter of law, and their complaint fails to state a claim under which relief can be granted. For all of these reasons, the court grants the defendants' motion to dismiss." The case is Brock et al., v. Viacom International, et al., (Civil Action) 1:04-CV-1029-CAP (U.S.D.C., Northern District of Ga., Atlanta Division), decided February 28th, 2005(Parnell, J.).

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