Jerry Seinfeld has asked a judge to dismiss a lawsuit filed by Missy Chase Lapine over comments made about her on national television. Seinfeld insists that he was just joking, but the laugh could be on him under the standard for such pre-trial dismissal.

The filing was made in U.S. District Court in Manhattan where Seinfeld’s lawyers are arguing that “Jerry Seinfeld made overstatements of opinion for comic effect.”

Both Seinfeld and his wife Jessica Seinfeld have been sued by Lapine over comments made on the David Letterman Show about her and her allegations of plagiarism of a cookbook by Jessica Seinfeld. This one could actually make some interesting new law if it goes the distance.

At issue was originally a cookbook. Lapine is the author of “The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals.” Six months later, Jessica Seinfeld came out with her book: “Deceptively Delicious: Simple Secrets to Getting Your Kids Eating Good Food.”

The Seinfelds were warned by Lapine that she believed the book plagiarized her work, pointing out close similarities in the works. There is nearly identical language in the two books and notably Jessica Seinfeld’s publisher had revieweda book proposal by Ms. Lapine.

In addition to the allegations of infringement and plagiarism, the lawsuit alleges defamation. This is the most interesting part of the litigation. Jerry Seinfeld has used his celebrity status to trash Lapine. In an appearance on October 2007 on the Late Show with David Letterman, Seinfeld called Lapine, a “nut job, “a wacko” and “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.”

To see the video of the interview, click here

The Seinfelds were clearly going to defend on the basis that his statements were opinion and not factual representations covered by defamation rules. His lawyer insisted that “Jerry Seinfeld is entitled to his opinions . . . Even though Jerry Seinfeld is a public figure, he doesn’t lose his right to free speech because of that.” Ken Starr wrote an opinion on this issue in Ollman v. Evans while he was a judge on the D.C. Circuit. he found that alleged defamation by Evans and Novak of a University of Maryland professor was opinion despite calling him a “Marxist” and misusing his classroom to “promote revolution.” Starr wrote that

the reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper.

The same can be expected of comedians on a late show. However, Evans and Novak were not writing about their spouses — adding a malicious element to the current lawsuit.

What is fascinating is that celebrities were placed under the more difficult New York Times v. Sullivan standard for public figures because they have such power and access to the mass media — like public officials. In Chief Justice Warren’s concurrence in Curtis Publishing v. Butts, he noted:

“it is plain that although they are not subject to the restraints of the political process, ‘public figures’ like ‘public officials’ often play an influential role in ordering society. And surely as a class these ‘public figures’ have as ready access as ‘public officials’ to mass media of communication, both to influence policy and to counter criticism of their views and activities.”

That certainly appears the case here. Interestingly, however, Lapine will probably also be treated as a public figure so we could have two public figures against each other in a defamation case over a statement made on an entertainment program. The problem for Seinfeld is that the segment with Letterman was not simply some stand-up routine. While he appears to be joking, he is also clearly portraying Lapine –at a minimum — as unbalanced. For a recent entry on celebrity defamation lawsuits, click here

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.

In seeking dismissal, the court must view all factual assertions in the light most supporting the non-moving party — in this case Lapine. It is difficult for a court to take judicial notice that something is a joke since its meaning and import is the ultimate factual question. Moreover, one cannot hold that a comedian is given greater license to trash individuals under the claim that “I am always joking.” Seinfeld appeared pretty serious at points in the interview. This is not to say that he will not or should not prevail. Rather, a dismissal on such a fact question would be vulnerable to appeal for the district court.

For a copy of the complaint, click here