If Parody Seems to Imply That the Parodied Person Is Responsible for Racist Actions, Can That Be Libelous?

From Corso Ventures, LLC v. Paye, decided Sept. 7, 2021 by Judge Karen Held Phipps (Ohio Ct. Com. Pl. Franklin County), but just posted several days ago on Westlaw; it's now on appeal.

{In January of 2020, Defendant Jordan saw a story on the local news that the Short North Food Hall had established a dress code banning certain articles of clothing and accessories [more on the details below -EV]. The various news identified Short North Food Hall's parent company as being Plaintiff Corso Ventures and/or stated the restaurant was owned by Plaintiff Christopher Corso.

Defendant Jordan, who is African-American, viewed the clothing prohibitions as being racially charged and discriminatory. Thus, he authored and published three articles or advertisements on his website intending to criticize Plaintiffs for creating the dress code: "Corso Ventures' Newest Bar, Nigghers, Coming to Short North This Fall," "Short North Food Hall Literally Just Googled, 'How to Keep Black People Out of Bars,'" and "White Wednesdays at Short North Food Hall." Defendant Jordan contends he intentionally wrote the articles in a way that would clearly signal to the reader that they were satire and not a depiction of true events. The articles were surrounded by other satirical articles that Defendant Jordan claims were obviously untrue and jokes or parodies. Some of the surrounding headlines were, "Socially Distanced July 4th Parade Will Be 86 Miles Long, Last 40 Hours"; "Raccoon Serial Killer Continues Senseless Violence"; and "Teaching My Grandpa How to Find Porn on His Phone."}

[Jordan's website is] DelawareOhioNews.com. Defendant Jordan regularly writes articles and other content published on the website. He characterizes DelawareOhioNews.com as a "satirical website" that publishes fictional stories to "poke fun" at issues of local or national interest. In its "ABOUT US" section, DelawareOhioNews states the following:

Delaware Ohio News is an online news and content source dedicated to Delaware, Ohio. Founded in the year 1808, we strive to be Delaware's premier news source, second only to the illustrious Delaware Gazette. Although we were the first Delaware, Ohio newspaper, they remain the lords of Delaware news media. That's why we're suicidal and on so many drugs.

With all of that said, everything on this website is made up. Do not rely on anything said here.

Don't believe us? Read our legal Statements.

The Legal Statement section contains the following "Disclaimer":

All stories herein are parodies (satire, fiction, fake, not real) of people and/or actual events. All names are made up (unless used in a parody of public figures) and any similarity is purely coincidental.

DelawareOhioNews.com is not affiliated with Ohio Wesleyan University or any other publication.

DelawareOhioNews.com is intended for use by those age 18 and older. If you think your child can handle this humor, it is up to you. We are not role models….

[According to the defendants' brief, the articles contained passages such as this: -EV

Principal partner Crisp Corso says he is excited to finally open a location where black people can give him money without getting in the way of white people giving him money.

"I have wanted to do a project like this for awhile because I feel like I have a good sense for what those people want and need," Corso said, referring to black people. "I know they haven't felt welcome at our other spots, because they aren't, so Nigghers is an opportunity for us to give them a nightlife experience that is all their own. Hopefully the more urban ones that make us uncomfortable will choose to spend their time here instead of walking up and down high street looking for a white establishment that will let them inside."]

Plaintiffs deny that they own or operate Short North Food Hall. Rather, they state that they only provide marketing services for the restaurant. Plaintiffs further deny that they created or implemented the dress code for the business. Plaintiffs assert Defendants published malicious and outrageous statements that have deeply affected them and their business.

Plaintiff Corso states that the defamatory statements have successfully invited public hatred, contempt, ridicule, shame, and disgrace upon himself and Corso Ventures. He avers he has been personally threatened and accosted in by strangers he does not know and has been called a racist and other obscenities. This has placed him, his family, his friends, and his employees in fear and danger of personal attacks. Thus, Plaintiffs initiated this action asserting claims for defamation, slander per se and libel, false light/invasion of privacy, negligence, tortious interference with business relationships and contracts, fraud and negligent misrepresentation, and civil conspiracy. Plaintiffs seek monetary damages as well as injunctive and declaratory relief….

"The First Amendment protects statements that cannot be interpreted as stating actual facts about an individual from serving as the basis for a defamation action or similar claim under state law." "Such statements include the usual rhetorical hyperbole and imaginative expression often found in satires, parodies, and cartoons." "The statements are protected if they, 'although factual on their face, and provable as false, could not be interpreted by a reasonable listener or reader as stating actual facts about the plaintiff."

"Further, parodies and satire are protected even when they are intended to be highly offensive of the person criticized." "Parody is often offensive, but it is 'nevertheless deserving of substantial freedom — both as entertainment and as a form of social and literary criticism."'

"A parody or spoof that no reasonable person would read as a factual statement, or as anything other than a joke—albeit a bad joke—cannot be actionable as a defamation." "Even where a word is used that usually denotes criminal activity, it is constitutionally protected when no reasonable reader would perceive it as anything but 'rhetorical hyperbole."'

"The test of what a particular statement could reasonably be understood to have asserted is what a reasonable reader would understand the author to be saying, considering the kind of language used and the context in which it is used." … "[T]he question is not whether some actual readers were misled, as they inevitably will be, but whether the hypothetical reasonable reader could be."

"When evaluating allegedly defamatory statements, [courts] consider whether a reasonable reader, viewing the statements in context, would understand the statements to be 'rhetorical hyperbole."' "[A] court may decide as a matter of law whether a statement is actually capable of defamatory meaning." "Where no such meaning is possible, summary disposition is appropriate." "It is first for the Court to consider whether the publication is defamatory on its face, or is subject to both defamatory and non-defamatory meanings, or is not subject to any defamatory meaning." "Only if the Court finds both defamatory and non-defamatory interpretations is there a question of fact for the jury." ….

[A] reasonable reader would [not] believe the statements in the articles at issue were actual statements of fact about Plaintiffs rather than a satirical spoof….

Simply put, the DelawareOhioNews.com website provides obvious clues and signals that it is a satirical website and does not publish actual news. So there can be no doubt, the website directly states that "everything on this website is made up," and warns the reader to "not rely on anything said here." The website directs viewers to "read our legal statements." This section contains an express Disclaimer to again notify viewers that the articles are fictitious and not to be taken as true:

All stories herein are parodies (satire, fiction, fake, not real) of people and/or actual events. All names are made up (unless used in a parody of public figures) and any similarity is purely coincidental.

The articles on the website range from the silly and nonsensical to the offensive and vulgar. But all of them, including the offending articles at issue in the Complaint, when read in the proper context, can only be viewed as jokes, parodies, or satirical criticisms. No reasonable reader could view them as presenting actual facts about Plaintiffs. Thus, the Court agrees with Defendants that the publications are protected by the First Amendment and cannot form the basis of a defamation claim.

Plaintiffs argue that the line of cases providing First Amendment protection to satirical publications is only to applicable to parodies involving public figures. Not so….

Also, the Court will accept as true that Plaintiffs do not own or operate Short North Food Hall and that they did not create or implement the dress code that was the impetus for Defendants' articles. The Court agrees with Defendants that these facts are not material. Even if Plaintiffs were unfairly targeted, this does not render the statements to be actionable. "Even false statements of fact are protected from a defamation claim if any reasonable person would recognize the statements as parody." "This makes sense because if a statement of fact is clearly a spoof, or satirical …, it matters not if the outrageously stated facts are false because no one would believe them to be true."

Finally, the Court has given much consideration to Plaintiffs' argument that, due to the racially charged language and racially insensitive substance of the articles, the publications are thinly disguised hate speech that should not be protected. Plaintiffs emphasize Defendants' use of a form of the "N-word" as the name of a fictional bar purportedly opened by Plaintiffs. They rely on case law to establish that this word is so utterly offensive as to not be constitutionally protected. The Court has reviewed the cases cited by Plaintiffs and would certainly agree with the principles set forth therein. However, none of the cases involved the use of racially insensitive or offensive language in a satirical manner as what occurred here.

"Again, parodies and satire are protected even when they are intended to be highly offensive of the person criticized." "When evaluating allegedly defamatory statements, [courts] consider whether a reasonable reader, viewing the statements in context, would understand the statements to be 'rhetorical hyperbole."' The Court has explained above that a reasonable reader would understand from the context that the articles were ridiculing or parodying Plaintiffs and not presenting actual facts about Plaintiffs' business ventures.

The Court acknowledges Plaintiff Corso's averment that he has been accosted or threatened by strangers who call him a racist and other obscenities. In construing the evidence in Plaintiffs' favor, the Court will presume that there is a correlation between these incidents and the published articles. That does not negate the protection afforded to the articles under the First Amendment….

Based on the foregoing, the Court finds that publications are protected speech and cannot be labeled as defamatory…. [And] "where claims such as tortious interference and disparagement are based on statements that are qualifiedly privileged under defamation law, the protection afforded those statements … must also apply in the derivative claims." Similarly here, the First Amendment protection afforded to the publications must be applied to the derivative claims….

Here are more factual allegations, as asserted by the defendants' appellate brief:

In January 2020, … the [Food Hall] restaurant posted the Dress Code, which included the following requirements for any person who wished to enter it:

• No ill-fitting or excessively baggy clothes
• No sandals
• No drug-related clothing
• No Athletic clothing (joggers, sweatpants, jumpsuits warmups, and Jerseys )
• No Work boots (dress boots)
• No excessive jewelry including grills
• No professional cameras or Go-Pros
• No backpacks, man purses, or satchels
• No sagging of pants
• No Flat bill hats or headphones
• Sweatshirt/Jacket hoodies must be worn down
• We reserve the right to refuse service to any patron that lacks adequate hygiene
• No removal of clothing items in the bar at anytime (ex: taking shirt off) you will be escorted out immediately

The Dress Code was widely perceived to have been designed to keep Black people out of Food Hall. Members of the Community were swift in their condemnation of the Dress Code. For example, Channel 10 news reported statements from community members such as "[t]here are a lot of racial undercurrents with that," and "[w]hen they said no baggy clothes or grills, I thought that was racist," and "this is classist and racist Do better #shortnorthfoodhall," and "since when is a racist dress code a safety policy? what is drug-related clothing? Is there a drug dealer dress code …" Columbus' City Council President called the Dress Code discriminatory….

The website, DelawareOhioNews.com, contains numerous indications that it is a satire website. [Some of the details were discussed in the trial court order, but the brief also notes: -EV] … [T]he author biography for [defendant] Jordan's alter ego Ricardo Paye could not be clearer that it is intended as humor. It reads:

Ricardo Paye is a Senior Correspondent with Delaware Ohio News. Born and raised in the Delaware County Fairgrounds, he's a reporter with a deep knowledge of the streets who isn't afraid to ask tough questions. His fondest childhood memory is getting a hand job from a public utility worker in the basement of Pilsner's 5 & Dime store. He holds a bachelor's degree in Euthanasia from Ohio Wesleyan University….

Apropos the relationship between Corso and Short North Food Hall,

• Recall that "Plaintiffs deny that they own or operate Short North Food Hall" and "state that they only provide marketing services for the restaurant."
• The defendants respond that "it was Appellant Chris Corso who signed that entity's Secretary of State filings, with a location at the same location as Appellant Corso Ventures," and "the time the Motion was decided, Corso Ventures' website featured Food Hall as one of its establishments" (links to possibly relevant sites added by me).