All Publicity is not Necessarily Good Publicity

“Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray’s age, health, and appearance, [and] broadcasted false statements… Nothing has ever stressed him more than this vicious and untruthful attack.” This quote is from Bob Murray’s defamation lawsuit against John Oliver, the host of HBO’s Last Week Tonight. Just three days after the episode about the coal industry aired on television, Oliver was accused of assassinating the character and reputation of the CEO of Murray Energy.

When comparing what Oliver had said about Murray to the insults of others (the notorious late Joan Rivers once said Tommy Lee Jones “makes Hitler look warm and fuzzy”), his comments comparing Murray to a “geriatric Dr. Evil” seem mild, and maybe even harmless. Especially in the age of media and the Internet, worse things have been said about other individuals. So you may be wondering: when is it legal to say whatever you want about another person on live TV or in the press?

Let’s talk about the distinction between defamation law and protected speech under the First Amendment. If a person can prove that his/her statement is a true fact, it is protected under the First Amendment. Additionally, statements of puffery (language that no reasonable person would believe to be true) are allowable. It is only false statements that run the risk of falling under the legal category of defamation.

Statements known to be false before their delivery can be considered defamatory. If someone says something false about another but it has no impact on their reputation, it wouldn’t be a legal issue. However, if the false statement had a profound impact on the public’s opinion on the victim, it would be defamation. Even opinions aren’t necessarily protected speech. It’s slander to knowingly spread a lie, even if it is prefaced by “in my opinion….”

In the age of social media where anyone can be a publisher and upload material for the whole world to see, defamatory statements are no longer limited to the rich and/or famous. “Regular” people are now becoming victims of defamation. Let’s take memes, for example. Memes have become an integral piece of pop culture, allowing people to communicate with friends by sending them photos with a relatable and/or humorous caption. But where do the photos from these memes come from? Often photos of people are taken from the internet without their knowledge or permission and are put in a completely different context for the sake of comedic effect. When the punchline of the meme is insulting and damages to the reputation of the person in the photo, it can be seen as defamatory.

Adam Holland, a man with Down Syndrome from Nashville, Tennessee, became the victim of a vicious thread of memes when people found a photo of him holding a drawing of a football team reading “Go Titans,” and photoshopped it. One man in Minnesota posted the image to Flickr and replaced Holland’s words with “I got a boner.” A radio station in Florida posted the image on their website with the title “Retarded News.” Michael Sharkey, program director of the station, explained that they used the photo as a banner for their news segment “designed to highlight odd stories that are seemingly always in the news.” The Holland family sued on the grounds that the doctored photo of Adam was defamatory, deceptive, and misleading. They were awarded $150,000 in federal court.

Defamation may be ubiquitous online in the age of social media, but that does not excuse it under the law. The Holland family’s case demonstrates that you don’t need to be a politician, actor, or business mogul, to be compensated for defamatory statements. Defamation law is by nature very subjective so the process of resolving these cases is not always clear. It’s important to know that protections from defamatory statements exist, but it is not always clear cut if something is “damaging to a person’s reputation.” Ultimately, it is up for a jury to decide whether a statement is defamatory or not.