a comedian makes a joke about an airline that could (according to an employee of that airline, via the comedian) make him liable for slander.
So, to protect himself, he tells a joke about Helta airlines. Now, most people know right away which airline he really means.
Is he actually protected from slander (assuming his joke or statement met the other requirements for slander)?
anti-nitpick: Yes, I know that exaggeration for comedic purposes is protected, but that’s not relevant to the question.
When you say “assuming his joke or statement met the other requirements for slander” I take it you’re including the requirement that the corporate body itself is capable of being defamed under the law of the relevant jurisdiction. If the body was one that could be identified by the ordinary person who heard the defamatory comment, then giving it a fake name would, as a rule, not protect the defamer. It isn’t actually even required that the subject be mentioned by name at all so long as it can be reasonably understood who the defamatory comment refers to, since the purpose of the law is simply to prevent harm to their reputation. (That’s the common law position anyway - as always with legal questions, YMMV depending on where you are.)
I ain’t a lawyer, someone with legal background may want to correct me, but there’s also a diff between joking and slander. Generally speaking: one can make jokes about (satirize, etc) well-known public personalities (e.g., the President, movie stars, and well-known companies) and that’s covered under free speech, not slander. Certainly someone doing stand-up comedy, and making jokes about a “celebrity” or otherwise well-known entity, would fall under that category.
I disagree with your point that he does it to protect himself, IMHO he does it for comedic effect of appearing like he is protecting himself as part of the comedic act, poking fun at slander laws in the process as well.
From the OP:
“I know that exaggeration for comedic purposes is protected, but that’s not relevant to the question.”
I’m no lawyer, but I would imagine that if it were obvious who he was slandering (“I slept with N’shell Orbama!”), that sort of semantic game isn’t any protection. How you prove/disprove that, I don’t know.
At common law it was not possible to defame groups of people like religions , ethnicity or even a corporate body either.
In a US jurisdiction, it either meets the full legal test of what is slander/libel or it does not. In the case of a major corporation the tougher standard for a public figure (known falsehood, harm caused, malicious intent, reckless disregard for truth, etc) may apply.
And I would counter that notwhitstanding your “anti-nitpick”, the parody/satire rule would be relevant because I would see it as part of the evaluation as to whether the statement does even meet the slander/libel test to begin with. Heck, just referring to the airline pseudonymously as “Hellta” is disparaging, but it’s not slanderous/libelous by itself.
The normal tests for defamation apply, whether or not it’s purported to be a joke. Whether it’s slander (private defamation) or libel (public defamation) isn’t important.
Commercial entities can have a cause of action for defamation in most states. Many states also have a cause of action for commercial defamation, which is more likely what will apply to a business entity when the perpetrator is a competitor.
Does the audience understand the statement to apply to an identifiable individual? – Can people tell that “Hellta” is meant to be “Delta”?
Does the audience tend to believe that the statement is true? – this will be an important question in the context of a standup act. Yes, it is understood to be a joke, but will they still think it’s true?
Is the statement false? Was it intentionally false Or was it made with a negligent regard for whether it was false? (For public figures this standard rises to “actual malice” or “reckless disregard for the truth”)
Does the statement tend to harm the name or reputation of the individual?
He sued Henry Ford on the theory that what he said about all Jews applied to Aaron personally too, thus was libel. It appears from the articles, the case was closed with an apology and retraction, but the case went to court for quite a while.
That’s an interesting question, and it goes back to the difference between common sense and the legal world of rules of evidence, presumptions, rebuttals, and legal rules of inference and cause and effect.
I think the OP was considering a situation where the legal rules of evidence and/or inference might block the court from being able to legally conclude something that is obvious. E.g. (hypothetically) “According to Blakely v. McWharton (1873), a name on a document that does not match any form of the legal name or any former legal name of an entity in question must be presumed to not reference that entity unless clear and convincing evidence is produced that that name had been used by at least three different people over the course of at least one year when making public references to that entity or that the defendant has unambiguously admitted that the name was intended to reference the entity. Since the plaintiff cannot or will not demonstrate that ‘Helta Airlines’ has had any place in the corpus of literature until the alleged writing of the defendant, and the defendant has not formally stated that it has any meaning other than ‘It is part of a joke’, as a matter of law it must be assumed that “Helta Airlines” either references a fictitious entity or an entity other than the plaintiff.”
That’s a very misinformed idea about how the law works. Indeed, if you have no idea what legal standard applies in a particular situation, then your best guess is always “whatever is reasonable.” Especially when an element of a claim is based on a matter of public perception. The answer to the question is “what would a reasonable person who heard this statement likely believe?”
I actually practice defamation law. And so all learned law answers begin, “it depends.” Mostly on your jurisdiction. In the US an utterance that is understood by all to be a joke or satire is protected speech. Thus you can print in your skin magazine that Jerry Falwell’s first sexual experience was with his mother in an outhouse because everyone understands that this a funny. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
Jay Leno did these kinds of jokes frequently about various airlines. I knew a lawyer who represented Hormel, the makers of SPAM, and Leno did tone down his jokes about SPAM after several letters from this lawyer. But he probably didn’t have to do so.
I recall reading somewhere that while Weird Al Yankovic generally gets permission from the artists that he parodies, this is more an intentional gesture of kindness intended to preserve relationships than an actual requirement of the law. After all, not everything that is legal is necessarily a good idea.
You can read it in the copyright act. A musical composition that has already been released as a sound recording can be “covered” without permission under a compulsory license. You have to comply with the terms of the compulsory license – such as paying royalties set by the Copyright Office – but you don’t need permission if the copyright holder.
As you say, Yankovic does it not for legal reasons but because he wants to maintain good relationships with other artists. In one case, he thought he had Coolio’s permission to parody “Gangsta’s Paradise” but there had been a miscommunication of some kind and Coolio was offended by “Amish Paradise.”
Thanks Robert, your answer is kind of what I was looking for. Still, it seems hard to believe that such an obvious dodge would hold up in court. All the stories I’ve read about court cases imply a sort of ‘smell test’ (does it trigger your BS detector) used by judges and other in the community.
for the folks saying “it’s protected speech”: FORGET THE JOKE ASPECT!! That’s simply where I encountered the concept. Pretend it’s somebody telling a story in all seriousness (maybe they’re a shock-jockey, maybe they’ve got a political agenda, whatever) about how “let’s call it Helta airlines” kicked somebody off a flight for being a ‘little person’ (less politely called midgets or dwarves), was verbally abusive towards a handicapped person (e.g. “*****ers and their wheelchairs”), or committed some other horrible act that would cause many people to boycott that airline. They used that exact phrase “let’s call it Helta airlines”, there’s credible evidence the speaker knows the story is false, and you can prove they’re doing this to create anger towards Delta airlines (outrage usually means more listeners/viewers).
Such an obvious dodge would NOT hold up in court. Which post gave you that idea?
Defamation is by definition unprotected speech. The fact that it’s a joke in your example might be relevant so far as it is relevant to the question of whether a reasonable person in the audience would believe that it is true. That’s exactly the question that was critical to the outcome in the Jerry Falwell case.
Did you read the numbered list I posted?
Right. Defamation law is supposed to protect people from having their reputations destroyed by people hell-bent on tricking the public into believing things that are untrue. It’s not intended to shield people from being made fun of or mocked.
But it is relevant, as it ensures that the whole piece is seen as a joke.
If the slander or libel would easily be identified as a joke… then its just a joke
Alan King had a bit about problems traveling on Eastern Airlines. One standard story he told on talk shows was that Eastern sued him for slander. But the case was thrown out by a judge who happened to have also flown Eastern and had the same problems.
I remember the bit. Not sure if the judge part is true. Sounds too much like a “talk show story”. But it does appear that Eastern did at least threaten to sue but nothing happened. King continued to slam the airline.
I think the main thing was that the horrors King described supposedly did happen. The comic just needs to sure it’s true. Won’t prevent a lawsuit from being filed, but will prevent losing the lawsuit. (Assuming you can afford a lawyer.)