February 11, 2009

It's Not Really Defamation If You Get Called "Hot"

A case of some interest is making the rounds of the legal blogosphere. Apparently, someone started a blog and it got popular, and then he wrote a book and made some money. The blog, and the book, are called Hot Chicks With Douchebags. The content is exactly as advertised -- it's pretty much a series of pictures of attractive women with rather unseemly-looking men, coupled with juvenile but sporadically amusing commentary by the author.

Well, three of the "hot chicks"* involved sued the author and the publisher, looking to cash in. A New Jersey trial court said "no dice," and threw the suit out on First Amendment grounds.

In fact, the suit shows signs of great laziness on the part of the plaintiff's attorneys. They included a cause of action for violation of Business & Professions Code § 17200, which would have been a reasonable sort of thing for them to have done -- if they had filed the suit in a California court, and if they had done it in 1998, before B&P Code 17200 got amended to exclude this sort of thing. What it looks like happened here is they got an old lawsuit from California that someone had filed a long time ago and rather than actually reading the damn thing before filing it, they just did a global search and replace on the names, ran to court, and promptly got thrown right back out.

Now, if they had actually filed in California, who knows? Maybe the California tort of misappropriation of identity, or a claim under California Civil Code § 3344, would have been to their advantage. But they filed in New Jersey and this is the result you get there. Seems to me that the California court has as much jurisdiction over the publisher as the New Jersey court did. And then there's the reasoning of the New Jersey court -- which is that the First Amendment protects works of parody even against state laws like defamation and invasion of privacy.

We can contemplate the sociological implications of a book like this later (how, exactly, is a guy supposed to dress when he goes out to a club without risking being characterized as a douchebag?) but the point of the matter is that ultimately, the First Amendment casts a pretty broad net. Ultimately, it can't be otherwise.

* Oh, you want to see the "chicks" in question to decide for yourself if they're "hot"? Or if the guys they're with are really "douchebags"? The Smoking Gun is there. Don't say I never provided any helpful links.

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