Wednesday, February 11, 2009

NJ court: First Amendment guarantees that 'douchebag'-filled state may be described accurately

From the Meadowlands to the Pine Barrens, from the slums of Newark to the slums of Camden, from the Vince Lombardi Rest Stop in the North to the Clara Barton Rest Stop in the South, New Jerseyans can now shout it from the rooftops without fear (at least of a lawsuit): "Douchebag! Douchebag! Douchebag!" That's the stunning ruling from a Superior Court judge in Bergen County, which last week issued an opinion dismissing a defamation case brought by a trio of Garden State women whose pictures appeared in a tome titled Hot Chicks with Douchebags.

Well, at least that's the "ruling" that made for a sensational and New Jersey-cliché-filled lede. Here's the more precise and legalistic version: first came an excellent and informative web site called "Hot Chicks with Douchebags," which includes pictures and descriptions of...duh. The Internet was too small to contain all the possibilities such a subject offered, so douchebag-chronicler Jay Louis got himself a book contract with Simon & Shuster. Said book included pictures of three NJ hotties taken at Club Bliss in Clifton (spitting distance from where the Garden State Parkway crosses Route 3), posing alongside several alleged douchebags, including an example of a subspecies called a "federbag": "famous in their own minds, they live the celebrity rock star life style while being neither celebrity nor rock star." Another picture of one of the subjects "comes under the title heading 'Step 5: Leave New Jersey'. Under this heading the author describes why in his opinion leaving New Jersey is an essential step in 'the de-douchification process' of a male."

Apparently the acclaim that comes with being labeled "Hot Chicks" wasn't enough to outweigh the anguish caused by being pegged as cavorting with accused douchebags, so the three women -- Yvette Gorzelany, Joanna Obiedzinski, and Paulina Pakos -- sued last October for defamation and a grab bag of other torts (including, hilariously (at least to California lawyers) "a non-existent New Jersey statute described as the “Business & Professions Code Section 17200”), naming the book's publisher and author, as well as the club and its photographers. But the court was something less than sympathetic:
The Court finds that the text and photographs do not constitute defamatory falsehood of or concerning any of the plaintiffs. Instead the photographs in which the plaintiffs appear and the accompanying text are used for humorous social commentary. None of the plaintiffs are identified in the text or indeed in the entire book. There are no captions which describe anything within either of the photographs. Instead the photographs are used for a general depiction to support the commentary of the author. Consequently, no defamatory meaning can be imputed to plaintiff. Furthermore, since the text as a whole is not “of or concerning” plaintiffs, or susceptible to a defamatory meaning, the complaint as a matter of law is not defamatory and plaintiffs cannot by innuendo make it defamatory. Vogel v. Forbes, 500 F.Supp. 1081 (A.D. Pa. 1980); Shapiro v. Newsday, 5 Med.L.Rptr. 2007.

An examination of the entire publication compels the Court to conclude that a reasonable person would determine that the book Hot Chicks With Douchebags is intended to be satirical humor. While it may in some eyes be vulgar and tasteless, it definitely is not an assertion of fact that anyone would take seriously. Pring v. Penthouse International, 695 F.2d 438, 443 (10th Cir. 1982). Failing as an assertion of fact, the book must be treated as protected expression of opinion. Consequently, it is absolutely privileged under the First Amendment.
Shockingly, the court did not bother to cite to the closely on-point decision from the California Court of Appeal protecting use of the word "skank" from eager defamation plaintiffs.

Liskula Cohen, the model/plaintiff accused of being a "Skank in NYC," must be hoping that the growing First Amendment trend embodied in the opinion in Gorzelany v. Simon & Shuster, Inc. doesn't cross the Hudson.

One last thing: kudos to the defendants' attorneys at Davis Wright Tremaine LLP, a firm which is now singularly responsible for your freedom to shout "skank" in California and "douchebag" in New Jersey. Such work may not be as lucrative as, say, winning a $65 million settlement (oops!) from Facebook, but all fans of the First Amendment owe them a debt of gratitude. Or at least a drink at Club Bliss.

UPDATE: I am reminded that one of the alleged you-know-whats has filed a similar lawsuit in state court in Las Vegas. More here. Complaint here.

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