Seinfeld, Language, and Law
posted by Frank Pasquale
Years ago law prof Jedediah Purdy warned us of Seinfeld’s charms. Here’s a reviewer’s account:
The ironic man, whom Mr. Purdy personifies as the sitcom character Jerry Seinfeld . . . is an outright menace. With his ‘’style of speech and behavior that avoids all appearance of naivete — of naive devotion, belief, or hope,” the individual armored in the irony . . . has withdrawn from the political arena just when it needs him most.
But he’s certainly outfront with lawsuit PR. Now courts may have to wrestle with the polysemic potential of his irony (and humor generally).
Seinfeld was on Letterman last year, and his comments on the woman now suing his wife for plagiarism were not exactly conciliatory. Now he’s being sued for defamation. Here’s the video, which gets interesting 40 seconds in:
Jonathan Turley gives excellent background and analysis; he has the following comment
Seinfeld called Lapine . . . “hysterical.” He said: “Now you know, having a career in show business, one of the fun facts of celebrity life is wackos will wait in the woodwork to pop out at certain moments of your life to inject a little adrenaline into your life experience.” He further noted that Lapine could be dangerous, joking “if you read history, many of the three-name people do become assassins . . . Mark David Chapman. And you know, James Earl Ray. So that’s my concern.”
The Seinfelds are clearly going to defend on the basis that his statements were opinion and not factual representations covered by defamation rules.
A few thoughts below the fold. . .
As James Grimmelmann notes, there are a few exceptions to the immunity for opinions:
The relationship of subjective opinion to objective fact . . . is not simple. Thus, for example, Milkovich v. Lorain Journal Co., while stating the rule that the Constitution shields opinions, leaves in place two significant exceptions. A statement of opinion may imply an underlying fact (the Court’s example: “In my opinion John Jones is a liar.”), and even a statement of opinion may be false if not honestly held (the Court’s example: “I think Jones lied,” where the speaker thought nothing of the sort).
In this context, is the “assassin” joke only funny if there is some objective implication of imbalance or impropriety regarding the person whom it’s aimed at? I find the case a bit difficult because Jerry Seinfeld (the person) has sometimes glided effortlessly between being a certain persona and playing one. For example, consider this video of him on Larry King Live:
Is Seinfeld here seamlessly sliding into “playing an obnoxious character” or is he being an obnoxious character? Is this the “true self” speaking, or spinning out some subtle humor (that the miffed King appears not to be in on)?
Having listened to his talk at the NY Academy of Sciences, I’m reminded of Stephen Pinker’s takes on the slipperiness of language, here related by reviewer William Saletan:
Language is a social medium with social purposes. Sometimes, we use it not to communicate facts about the world but to filter them. We euphemize bribes as “contributions” to preserve the dignity of lobbyists and legislators. We phrase treaties vaguely because if they were clear, nobody would sign them. . . . . We complain about doublespeak but rely on double meanings.
Turley has the following take on Seinfeld’s double meanings:
While he appears to be joking, he is also clearly portraying Lapine –at a minimum — as unbalanced. . . . Terms like wacko can be claimed to have a more innocent meaning. Under the principle of Mitior sensus, “when words have two meanings, lenient and severe, they will always be construed in the more lenient sense.” Yet, this is generally a jury decision and the Seinfelds and their publisher will first be subject to discovery — a potentially risky business.
Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the underlying defamation case. A series of innuendoes, jokes, dismissals, and jibes can probably undermine a reputation far more effectively than one false fact.
On the other hand, Seinfeld himself has satirized the lengths he would have to go to in order to avoid any unwanted overtones–not that there’s anything wrong with that!
January 12, 2008 at 11:01 pm
Posted in: Humor, Media Law, Privacy (Gossip & Shaming), Tort Law
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Responses (10)
Jon Garfunkel - January 14, 2008 at 9:13 pm
Frank– I thought for sure that this would have drawn more comments than the post on Google…
Good call on Grimmelman bringing to mind the opinion exceptions– these are very good to know.
One grammatical point, when you say “James Grimmelman notes,” it’s fair to use the present tense, since it’s quite current, but it’s not like he’s commenting on Seinfeld here. He noted in the recent past, in a separate context, in an academic paper, to be published… in the future. (Is that the past impendent tense?)
Obviously, Seinfeld should have been been aware that the proper defense to his wife’s book was that it wasn’t word-for-word plagiarism, it wasn’t a copyrighted idea, and thus the basic defense would be “great minds think alike” (or whatever the proper legal term is here), and thus, couldn’t he have spun an observational crack along these lines:
“You know Dave, did you ever notice works of art always come in pairs? There’s a network on this dial — I worked there for a few years– and they have a show being broadcast at the same time, where the host begins with a monologue, and jokes with his bandleader, and has guests. You should have your lawyers watch it sometime. And you’ve let them get away with it all these years!”
“But Jerry, you see they don’t have ‘Will it Float’. Right, Paul?”
“Right Dave!”
But then again, as my old classmate Dave Itzkoff wrote, in his profile of Seinfeld for the Times, “In person he can be affable, but he doesn’t hide a certain earned arrogance.”
edh - January 15, 2008 at 10:40 am
What about parody? Hasn’t Lapine become a limited purpose public figure because of her lawsuit and claims?
pettyfog - January 15, 2008 at 11:07 am
This is a little shocking to me, why the surprise?
Having watched both Seinfeld and Larry David sitcoms, I fail to understand why anyone with any character judgement at all doesnt understand that both only portray themselves on screen.
The OTHER characters may be acting, but those two are actually only doing situational hyperbolic responses.
That was the genius of Seinfeld’s and, to some extent, David’s sitcoms.
And which is why none of their opinions on anything OTHER than show-biz -as it pertains to them- should carry more weight than a basket of sand.
Becky - January 15, 2008 at 11:13 am
What a ridiculous lawsuit. A woman defames the wife public figure in a public way and he fights back in a public way. It’s just a spat – though a public one and now the lawyers race their ambulances to the scene, further threatening our free speech by trying to stop us from even being able to say, “In my opinion”.
And you wonder why everyone hates lawyers?
edcarrochio - January 15, 2008 at 11:54 am
That CNN clip has been “sanitized” by the communist news network. If anyone wants reality, they should watch a version of the exchange between Jerry and Larry that was not provided by CNN (as evidenced by the plug at the beginning of the clip). YouTube has it here: http://youtube.com/watch?v=RVTP8xZCGVw
If the point is to show what an “obnoxious character” Jerry is to Larry, where Jerry takes a vicious shot at Larry’s age and senility, then watch the unsanitized version.
anon - January 15, 2008 at 11:58 am
>[Is Seinfeld] spinning out
>some subtle humor (that the
>miffed King appears not to
>be in on)?
King didn’t seem miffed at all. Rather, he seemed non-plussed that Seinfeld didn’t pick up on his own attempt at humor. But apparently it was too subtle for Seinfeld. King’s “you canceled them” schtick was clearly an intentional reference to George Costanza’s classic “YOU can’t break up with ME, I’M breaking up with YOU.”
On the other hand, Seinfeld was either miffed or going for a not-subtle-at-all laugh.
TallDave - January 15, 2008 at 12:06 pm
They’re both just schtick.
Besides, Jerry is correct in the second film: his show was iconic and he left at the top. Major newspapers ran long stories about it at the time. It’s sort of odd Larry King would ask if he’d been cancelled, as though he didn’t know. It was probably just some interview talk, stating something he knew as a question, and clearly Jerry’s just having some opportune fun with faux outrage.
stan - January 15, 2008 at 2:16 pm
“Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the underlying defamation case. A series of innuendoes, jokes, dismissals, and jibes can probably undermine a reputation far more effectively than one false fact.”
Agreed.
fooltomery - January 15, 2008 at 2:22 pm
Jerry, your wife ‘borrowed’ her cookbook idea and you defamed the original author on national television. Pay the lady and be thankful that what you did won’t require you to go on a Michael Richards Harsh Reality Tour.
Darcy Lane - January 15, 2008 at 4:23 pm
“..if there is some objective implication of imbalance or impropriety regarding the person whom it’s aimed at?”
“Is this the “true self” speaking, or spinning out some subtle humor (that the miffed King appears not to be in on)?”
These are just two examples of the poor construction in your writing. There are many other examples of incorrect usage in this post, but your misuse of prepositions is the most egregious and revealing.
For someone pontificating about language and its usage, you have very poor grammar. The entire premise of this post is suspect when you write so badly yourself. If you can’t properly parse your own writing, how can you presume to analyze and critique the language of others?
William Safire would be appalled.
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