DEFAMATION CLAIMS BASED ON PARODY AND OTHER FANCIFUL COMMUNICATIONS NOT INTENDED TO BE UNDERSTOOD AS FACT

Abstract

In Part II, I will discuss the evolution of the traditional distinction between fact and protected opinion in general, particularly the Restatement formulations and the principal Supreme Court decisions addressing the constitutional dimensions. In Part III, I will discuss some of the parody cases and explain why I believe the analytical approach commonly applied is incomplete. Then, I will suggest a framework and methodology for addressing defamation claims based on parodies. I believe that an allegedly defamatory statement should be deemed protected opinion if it falls within one or more of the following four core categories under First Amendment or state substantive tort law principles that define the parameters of protected opinion: (a) it did not convey a provably false factual imputation; (b) it could not reasonably be understood as representing actual events; (c) it consists merely of so-called rhetorical hyperboles, epithets, or fanciful or imaginary expressions; or (d) it does not state or imply undisclosed, unassumed, or unknown defamatory facts. Then, with this four-pronged grid or framework, I propose that the courts examine both of the potentially defamatory dimensions of parodies.