I have previously criticized President Donald Trump for his calls for greater liability of the media for its coverage of the controversies surrounding his Administration. This weekend, Trump was again suggesting the need for legal review as he was excoriated by Saturday Night Live in a skit based on the classic Christmas movie “It’s a Wonderful Life.” Fortunately, the courts have maintained core free speech and free press protections from such assaults, particularly in the realm of comedy and parody.
The sketch with Ben Stiller (Michael Cohen), Robert De Niro (Robert Mueller) and Matt Damon (Brett Kavanaugh) poked fun at the various scandals and personalities in the White House. It clearly did not amuse the President and Trump tweeted:
“A REAL scandal is the one-sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live. It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?”
As a former television celebrity, Trump clearly understands how damaging comedy shows can be to an image. For people like Sarah Palin and Dan Quayle, they soon became their parodies in the eyes of many Americans. However, Trump’s continued desire to see the media or now entertainers sued for defamation is troubling and unfounded.
Courts have long protected opinion and parody. Ironically it is a case involving a conservative columnist that is often cited for such protection. the case dealt with 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.”
In other words, SNL and other comedy shows are fully protected in their parodies, even if they are more often hammering Trump or conservatives. The alternative would be the regulation of speech by the government. We have previously discussed the alarming rollback of free speech rights in the West. Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have seen comedians targeted with such court orders under this expanding and worrisome trend. (here and here). We do not want to put this country on the same slippery slope toward speech regulation.
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and Trump is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, someone like Trump must show either actual knowledge of its falsity or a reckless disregard of the truth.
Under the governing standards under the Constitution, the SNL skit does not even come close to an actionable case. Indeed, many courts would view a challenge as defamation to be a meritless or frivolous filing.
I cannot imagine it is easy to be parodied every night but understandable ill-humor is not excuse for speech controls. However, complaining about comedy skits and parodies is like complaining about the weather. Thankfully, it is largely harmless but ultimately fruitless in a nation still committed to free speech.