Libel by Fiction? Or, Did A Judge Really Shackle a 6-Year-Old?

There’s nothing easier than to claim that something is obviously parody after you already know this to be the case. While I agree that some elements of the article do have a farcical element to them, if it is true, as Hamlet claims, that “numerous secondary news outlets reported the story as true”, then it is clearly established that it was not in fact an obvious parody at the time.


No reason for this.

If it was an obvious parody from the start, then the judge’s reputation has never been harmed, because no one has been led to believe that she did these things. Of course, she might find the very fact of her being ridiculed in a parody to be offensive to her, but she has no protection against this, as per the Flynt ruling.

If it was not an obvious parody, then there are all sorts of people out there who have been led to believe that the judge did these things, so she has been defamed. The fact that it is subsequently established that the writer intended to write a parody does not change this.

IOW, there is no special First Amendment protection for parodies. Just that a parody which is obviously a parody does not defame - it only ridicules, and ridicule is protected. But a non-obvious parody, does defame, so it is not protected.

Hey, don’t go defaming the Observer like that! Don’t forget, our esteemed mayor was an investigative reporter (and a darned good one) for the Observer before she ran for city council.

Then again, they did drop Cecil’s column a decade ago, so to hell with 'em.

On the merits, chalk me up firmly in the camp that says a reasonable person could not possibly take the story (which appeared in a column that had long established its irreverance and snarkiness) as literally true. Hence, it’s protected satire. (“Satire,” not “parody.”)

As for Bricker’s query about the basis for damages, defamation of a person’s professional or business conduct is defamation per se under Texas law. In such cases, the plaintiff need not prove actual damages–the jury can just award whatever they think is just.

Do you believe this is true as a matter of law? Or are you simply saying you would have reached a different factual determination than the actual fact-finder did?

The paper would have a leg to stand on, if they had done it right. They screwed up. Here’s how it could have worked out for them:

  1. if the paper was The Onion. It’s not. Readers expect the stories here to be true, and it takes a few good paragraphs before it become 100% clear that this is a satire (the section head, “satire”, notwithstanding).

  2. if the paper, instead of devoting a lengthy phony article to the subject, had, in passing in one of its clearly labeled editorials, said, “… this decision by the judge is abominable. What’s next? Can we expect to see a 6-year-old in leg irons for writing a book report about Maurice Sendak’s ‘Where the Wild Things Are,’ which advocates cannibalism, fanaticism, and disorderly conduct?”

Pshaw! I used to read the Observer between matinee and evening performances when I worked in the Dallas professional theatre scene(they seem to have a newsstand beside/in virtually every local venue). Cover to cover I would read that rag. I have no excuse for this behavior other than to plead temporary insanity because you have no idea how bored one can get when one is a broke-ass high-school student with no car stranded by himself at the venue for the hours between the matinee and the evening show. Still, it establishes that I know of what I speak. And while one can occasionally take them seriously, a reasonable person, with any sort of knowledge as to the Observer and its history/tendancies, should not presume they are serious with virtually anything they print.

My guess is that the fact-finders, probably having never themselves been broke-ass high-school students stranded at a theatre venue between matinee and evening performances because they didn’t have a car, were unfamiliar with the Observer and gave it more creedance than it deserved. Kind of like picking up a copy of The Onion without knowing it is not a serious news source. The fact that someone didn’t get the joke doesn’t mean it wasn’t a joke.


If only nobody had ever mistaken an Onion story for a real story, you’d have a good point :).

This is why the standard is “reasonable person”, not “any old idiot of the street.”

I fail to see how a reasonable person could read that article and think it’s serious. That’s not a finding of law; that’s just plain common sense. Hopefully this’ll get overturned.


But if a whole lot of people didn’t get the joke, then it is clearly established that a reasonable person might interpret it that way.

toadspittle, I believe the “Satire” heading was a later addition. As noted above, it was originally published under the heading of “News”.

From this site:

Well a student paper and a radio station were duped. That makes it obvious what kind of idiot SimonX was referring to above.

I wonder if the big “Satire” text in the upper right is new?

Christian Science MonitorTexas Supreme Court to consider when satire becomes libel
The original (true) incident

Boy Jailed, Freed for Scary Essay - Washington Post

Is it too much too ask that we try to stick to “true” facts, not invented or imagined ones?

I looked for support that this story was picked up by numerous secondary news outlets and found none. Oh wait, I see that Hamlet has now kindly provided a “cite”. I guess he believes that a student newspaper and a local radio station constitute “numerous secondary news outlets”.

I will leave to the reader to evaluate his “fact”.

As has been pointed out by several Dallas area members, the DO is not primarily a hard news paper. There is a feature article each week which is factual or investigative in nature and a city politics column, but other than that it is mostly restaurant, movie and music reviews.

IzzyR, please explain how “editor Julie Lyons acknowledged the newspaper had received correspondence from readers who believed the article was true”, translates into a whole lot of people.

Look, if you guys don’t think newspaper’s shouldn’t insult judges, just say so instead of making shit up.

Excellent legal analysis of the case

Texas Supreme Court’s libel-by-fiction case

Well, ok. I should caveat that. They are a decent source for artistic/cuisine reviews. Just don’t take their “news” section all that seriously on your default settings.


It is not reasonable to assume that the several people who wrote in assuming the article was true constitute every person who thought so. Only a very small percentage of people write in to newspapers. And the fact that two media outlets, who - like the readers - were presumably aware of the nature of the newspaper, and probably more savvy and cautious as well, assumed the same makes it difficult to argue that no reasonable person could make that mistake.

As I said earlier, it looks much more obvious once you already know the truth.

Izzy, I acknowledge that I sometimes don’t get the joke, but that article was wayyyy over the top. How often do newspapers quote spokespeople for major national organizations who begin their official statement with “Jesus H. Christ” and talk about singing drug-related songs? How many people do you think belong to an organization that calls itself Opponents of Freedom (excuse me, God-Fearing Opponents of Freedom, or GOOF)? How many school superintendents will go on record saying not that they’re afraid of children, but that “kids scare the crap out of me”?

I really do not see how any reasonable person can think that one of these things is true, let alone all of them. This isn’t hindsight speaking: this is me knowing that groups don’t call themselves Opponents of Freedom, and school officials don’t use the word “crap” in their public statements, and spokespeople for national organizations don’t start their statements with profanities.


SmackFu, I also noticed the big “Satire” label on the web site. It made me curious so I did an advanced search on all articles in the “News->Satire” section.

:dubious: Hmm, that’s interesting. Apparently the ONLY News->Satire article they have in their archives from the past NINE YEARS is the “Stop the Madness” article. I admit this made me wonder if maybe the “Satire” section didn’t exist before the hullabaloo over this article. In any event I don’t think that label applied to the print version. The only reference I can see, kindly provided by astro, has an Observer source referring to the way the article is presented on the web site. No mention of a “satire” heading/disclaimer in the original print publication.


Is there any case law saying that a satire must be clearly labeled as such? What determines whether something is satire – the opinion of a reasonable person, or the intent of the author?

In this case I’m convinced they should be the same, but it’s an interesting question nonetheless.


The application of the First Amendment is, of course, a matter of law. I see nothing that raises a fact question regarding whether a reasonable person could see that story as an assertion of fact instead of obvious satire.

Not that I am aware of Dorkness, but the Observer folks shouldn’t be able to use the fact that the web site has the “Satire” label on it as part of their defense. There is no evidence that the label existed on the original print article nor does it seem to have been a regular feature of the paper to print satirical “news” articles. If there was a satirical article every week and it was a well-established historical trend that the paper published satires, this would be a strong defense. As it stands it seems the only thing the paper has going for itself in the “it should have been obvious that it was a joke” is the article itself and their general reputation for being more of a fluff publication.

Well, that and the fact that it is hard to hurt the reputation of a person who would jail a 13 year-old for a Halloween essay.