"At the mercy of the humorless reader"
In a hard lesson, the Dallas Observer has learned that the usual defenses available in parody, rhetorical hyperbole and satire might not be available when the butts of their satirical story were a Judge of the County Court and a Criminal District Attorney.
The Court of Appeals in Texas has ruled that if an attempted satire or parody fails to make clear to its readers that it is not conveying actual facts, then it may be defamatory. What happens then, when plaintiffs are public officials who have the normally difficult burden to prove “clearly and convincingly” that the story was written with reckless disregard for the truth? It is “undisputed” that the Dallas Observer article was “completely made up.” Does that meet the test for “actual malice?” Here’s the background, according to the decision written by the Texas court.
A 13-year-old seventh grader in Ponder, Texas, was held for five days at the juvenile facility because he wrote a graphic Halloween horror story about the shooting death of a teacher and two students. This actually happened, and it took place about six months after two high school students killed 12 students and a teacher in 1999 at Columbine High School in Colorado. After reporting the story of the 13-year-old’s sentence at juvenile hall, Dallas Observer staff-writer Rose Farley wrote a parody called “Stop the Madness.” She put the judge and the prosecutor in the parody by name, shackling and sentencing a fictional “diminutive six-year-old.” From the court’s description:
The Dallas Observer article described Cindy as appearing subdued when she stood before Judge Whitten “dressed in blue jeans, a Pokemon T-shirt, handcuffs and ankle shackles.” Judge Whitten was quoted as chastising Cindy from the bench: ‘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,’ Whitten said from the bench. ‘It’s time for you to grow up, young lady, and it’s time for us to stop treating kids like children.’
You get the idea.
Well, it seems some folks didn’t ponder this long enough and didn’t get the joke. The Observer’s Web site was filled with criticism of these two public servants. Worse, other news media questioned the Judge and the prosecutor, and there were calls for their resignation. The two officials asked the Observer for a retraction, and the newspaper explained the column was satire, calling those who didn’t get it “clueless.”
The Texas Court of Appeals thought none of this was funny.
First, there were no “obvious clues” to the readers of the satire that this was anything other than straight news copy. Second, in the context of public school violence, the article did not describe impossible actions, thus “a reasonable reader could find this story to be believable.” The Observer illustrated the story with the photograph of the daughter of the writer, not with cartoon or graphic art, lending it an air of realism. Fourth, no disclaimer was printed at the bottom of the story. Fifth, the article appeared in the “News” section of the Observer alongside a column noting that the writer of the satire had recently won an award for “Best General News Story.” Thus the Court of Appeals came to the conclusion that there is a reasonable question of fact (for a jury) to decide whether there was notice to the reasonable reader of satire or parody. It has also ruled that the “traditional” rule of actual malice will apply, thus the fault test will be whether the Dallas Observer knew the story was false and published it anyway.
There are at least two problems with the decision immediately apparent. It leaves the parodist and satirist at the mercy of the humorless reader (or judge). One person’s humor is another’s insult, but even so, insult is not supposed to be sufficient to mount a libel claim. The second problem with the decision is that this satire was, in fact, “core” political speech. It was intended to provide a very traditional type of commentary about foolish actions of two officials involved in the criminal justice system. Leaving these kinds of questions to a Texas jury is a pretty careless way to handle such serious constitutional questions, but on second thought, perhaps the publisher’s rights are safer with a jury than with the high courts of Texas.