There is a truly bizarre defamation lawsuit filed against the Tonight Show and Jay Leno by former American flight attendant Louann Giambattista who was the subject of rather crude jokes by Leno referencing allegations that she had snuck a pet rat on flights in her underwear.  Giambattista denies the allegations and says that she was falsely portrayed as “engaging in bestiality and sexual misconduct with a rat.”

This controversy began after flight attendants said that Giambattista, 55, carried pet rats on board in her pantyhose and underwear and was feeding the pets during the flight. As a result of the allegations, she says that she was searched by customs (which found no rats) and then blacklisted for a year due to the allegations. She was repeatedly subjected to searches and other limitations, according to her complaint.

She admits to having various pets, including a rat, over the years but insisted that she did not and would not carry a pet on a plane. She proceeded to sue American airlines. That lawsuit itself is a bit novel. She claims that the original allegations were patently false and that American proceeded to discriminate against her on the basis of a perceived (not an actual) disability. She claims that discriminating against her for “perceived mental disability” violates the Americans with Disabilities Act.

That led to some inevitable media interest and came to the attention of Leno who proceeded to make her the subject of bawdy jokes. The complaint cites the following jokes which are more obscene than funny in my view:

• “If I were one of those rats, I would’ve been very upset. I prefer not to sit in cooch.”

• “I don’t understand this woman at all. If she wanted something that creepy in her underwear, she should have hooked up with me.”

• Giambattista “coulda used what the rest of us ladies use … a Rabbit”.

The jokes clearly treat the original allegations against her as true. However, courts generally protect both opinion and parody from tort liability. This was a national story and Leno was making jokes about it. Few people would view Leno was a reputable source of news or even reputable for that matter.

However, he is watched by millions who would have likely taken the basis of the joke as true.

The lawsuit therefore falls right on the line of one of the most difficult areas of torts and constitutional law. Leno likely has the advantage as a comedian discussing news stories as part of an entertainment rather than a journalist’s enterprise. Leno might be able to rely on a case involving the late conservative columnist Robert Novak. Novak made his reputation as one of the most biased and hard-hitting columnists from the right. In Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), Novak was sued and a court ruled in his favor on the basis that everyone knew he was not writing as a disinterested journalist. In Ollman, the court ruled:

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. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

Leno is even farther than Novak from the status as a news reporter.

There is also the protection given parodies and social commentaries. Thus, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the Supreme Court held that a page on the late Rev. Jerry Falwell was clearly parody and protected despite the juvenile and disgusting content of the piece. The Court (both conservatives and liberals) found that such speech must be protected:

“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”

Giambattista says she and her husband became “pariahs in their own community” and their marriage suffered due to these stories and Leno’s standup routine. She is seeking damages for ‘debilitating anxiety’ and post-traumatic stress disorder from the airline.

Both lawsuits are novel and Giambattista starts from an obvious legal disadvantage. With the Leno complaint, however, there is a legitimate issue of what a citizen can do when a leading celebrity takes her dispute and allegedly uses it to tell millions that she is a sexual deviate. Usually such jokes begin with statements that the allegations are contested or merely allegations. If used as fact, they can be highly damaging to an individual. Recent studies show that many young adults use shows like the Daily Show as their primary exposure to news. That magnifies the potential harm from jokes that rely on defamatory factual assertions. Yet, there is a countervailing interest of free speech. Comedians are an important source of political commentary and shows like The Tonight Show have been recognized by presidents and other top politicians as an important forum.

It is not clear if Giambattista will be treated as a limited public figure subject to the higher standard of actual malice (knowing falsity or reckless disregard). That often depends on whether she has sought media attention or given interviews. Such a standard would make a tough case even tougher.

While the odds are against Giambattista, this could prove an important torts and free speech case. We will be watching it carefully.