The Volokh Conspiracy
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No "Accusation of Racism" Exception from Principle That Parody Isn't Defamation
From Corso Ventures LLC v. Paye, decided Tuesday by the Ohio Court of Appeals (Judge Betsy Luper Schuster, joined by Judges William Klatt and Jullia Dorrian (affirming the decision I blogged about here):
Jordan … publishes the website DelawareOhioNews.com. Jordan writes articles and other content published on the website, often using the pen name Ricardo Paye. Jordan characterizes the website as a "satirical website" that publishes fictional stories to "poke fun" at issues of local or national interest. The website contains an "about us" section that states:
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 of the website contains the following statement:
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.
In January 2020, Jordan saw a story on the local news that Short North Food Hall, a restaurant in Columbus, had established a dress code prohibiting certain articles of clothing and accessories. Jordan described the dress code as prohibiting numerous articles of clothing associated with Black culture. The news report identified Corso Ventures as the parent company of Short North Food Hall and stated that Christopher Corso owned the restaurant. In response to the local news report, Jordan wrote and published three articles on his website with the following titles: "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." Those articles appeared on the website surrounded by other headlines that Jordan characterizes as satirical, including "Socially Distanced July 4th Parade Will be 86 Miles Long, Last 40 Hours," "Health Department: Please Cover Your Dog's Anus to Prevent Spread of Coronavirus," "VA Patients to Share Prosthetics After Kasich Denies Funds," and "Ohio Gov. John Kasich Legalizes Exhumation of Confederate Soldiers Statewide." …
Plaintiffs sued for libel, but the appellate court (agreeing with the trial court) held defendant's speech was a parody as a matter of law, and thus wasn't the sort of factual assertion that could be adjudged defamatory:
The question here is whether the articles Jordan authored and published on the website were parody and, therefore, protected speech. Appellants argue it is not clear from the articles that the author intends the statements to be understood as parody or satire and that some people may believe the articles are stating actual facts. As the Sixth Circuit Court of Appeals has recently explained, "[o]ur nation's long-held First Amendment protection for parody does not rise and fall with whether a few people are confused. Instead, we must apply a 'reasonable reader' test." Moreover, "[s]peech that 'could not reasonably have been interpreted as stating actual facts' is a parody, even if 'patently offensive.'" "The test is not whether one person, or even ten people, or even one hundred people were confused" by the publications. "Indeed, the genius of parody is that it comes close enough to reality to spark a moment of doubt in the reader's mind before she [or he] realizes the joke."
Viewing the totality of the circumstances, we conclude the articles here, when read in context, could not reasonably have been interpreted as stating actual facts. This case involves three articles published on Jordan's website. The first is entitled "White Wednesdays at Short North Food Hall," and is formatted as a flyer advertising the supposed event. The flyer further states "where white is right each and every Wednesday [night],'"no melanin, no cover,'"all you can drink white wine," and "free grilled chicken nuggets and land line phones." The next article is entitled "Corso Ventures' Newest Bar, Nigghers, Coming to Short North This Fall." The article describes the opening of a new bar and nightclub "that will cater primarily to African Americans," and it uses a misspelling of a racial slur as the supposed name of the business. This article also attributes quotes to "Principal partner Crisp Corso," including the following:
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 the 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."
The third article is entitled "Short North Food Hall Literally Just Googled 'How to Keep Black People Out of Bars.'" The first line of this article states "[c]urious how Short North Food Hall came up with their racist dress code? Simple: They Googled it." The rest of the article is a comparison between Short North Food Hall's dress code and the results of the supposed Google search.
Under the reasonable reader test, the tone of all three articles indicates the statements are satirical, aimed at skewering the public news coverage of Short North Food Hall's implementation of the dress code, the ensuing public backlash, and the subsequent apology from Corso and Corso Ventures. The reasonable reader would not interpret the articles as stating actual facts. Additionally, the articles appeared on a website that clearly and expressly states that the contents of the website are fictitious and not to be construed as true by the reader. The other articles on the website are similarly satirical in nature, providing further context that the contents should not be construed as fact. In light of both the tone of the articles and the express disclaimer on the website that the contents are parody or satire and not to be construed as stating actual fact, we agree with the trial court that the reasonable reader would understand the statements to be parody or satire.
Despite the satirical tone of the articles and the website more generally, as well as the express disclaimer on the website, appellants argue the statements should not be protected as parody because the accusation of racism is so patently offensive as to constitute defamation per se. A statement can be defamation "per se," in which both damages and the requisite degree of fault are presumed, where the statement "'tends to injure a person in his or her trade, profession, or occupation.'" As appellants note, "Ohio courts have determined that 'being referred to as racist may, at times, constitute defamation per se.'"
However, what appellants ignore in their argument is that, in order to constitute defamation per se, the statement must first constitute defamation. As we have stated, a court must consider the totality of the circumstances and consider the statement in its context to determine whether the reasonable reader would understand it to be parody or satire and, thus, not defamation. Any references to racism here, whether expressly stated in the articles or implied through their contents, are still satire or parody when read in context. Appellants may find the statements to be offensive, but parody and satire are protected speech even where offensive so long as the reasonable reader understands the statements to be parody or satire.
Appellants advance several additional arguments as to why the statements should not be protected as parody, all of which are unpersuasive. First, appellants assert the website disclaimer should not provide protection to appellees because if a reader were to conduct an internet search for Corso and find the articles through an outside link, the reader may not see the website's disclaimer. As we stated above, however, the disclaimer and the entire website provide the context in which the statements appear. Appellants cannot divorce the statements from their context. Moreover, the tone of the articles, themselves, indicate to the reasonable reader that the contents are satire and parody even when read without the disclaimer.
Appellants next assert the trial court erred in failing to consider that Corso is a private individual rather than a public figure. … [But t]he difference in a defamation claim brought by a private individual versus a public figure lies not in the nature of the allegedly defamatory statement but rather in the degree of fault required to prove the claim…. Concluding the statements were not defamatory because they were protected parody or satire, the trial court did not need to reach the question of whether appellees acted with the requisite degree of fault.
Additionally, appellants argue the publications should not be protected as parody or satire because the publications wrongly suggest that appellants are the owners of Short North Food Hall and, thus, they dispute whether they were the creators of the dress code. As appellants note, Short North Food Hall is owned by an entity known as 1112 Short North LLC, not by Corso or Corso Ventures. However, we agree with the trial court that it is immaterial whether appellants actually own Short North Food Hall or were the entities responsible for creating the dress code. Parody and satire, by definition, do not contain assertions of fact.
We are mindful that appellants issued a public apology for the dress code at Short North Food Hall. Thus, whether appellants are the technical owners of Short North Food Hall does not impact the contextual reading of the publications here or impede the reasonable reader's ability to discern the publications are satire.
Finally, we disagree with appellants that granting summary judgment in this case will create a loophole in defamation law extending an absolute privilege to any person who makes a defamatory statement so long as the person claims the statement was satire or parody. Again, we emphasize that where a statement, under the totality of the circumstances and read in its context rather than isolation, could only be understood as parody or satire by the reasonable reader, the statement does not constitute defamation. Adding a disclaimer that the statement is satire or parody may help provide the particular context, but it does not end the inquiry as to whether the statement is parody or whether it is defamatory…. In the instant matter, considering the totality of the circumstances and the context in which the statements appear, we agree with the trial court that the publications are protected speech and cannot be labeled as defamatory.
Congratulations to Kevin Shook, Zackary Stillings, and J. Maxwell Williams, who represented the defendant.
