Seinfeld, Language, and Law
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 has withdrawn from the political arena just when it needs him most.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)?
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!