Pakos with unidentified douchebag
New Jersey Superior Court Judge Menelaos Toskos (Columbia BA, Fordham JD ’73) has a fine sense of humor. He found that libel cannot exist for material that is “susceptible of only a non-defamatory meaning and is clearly understood as being parody, satire, humor or fantasy,” in dismissing Gorzelany v. Simon & Schuster, Inc.
You might recognize this critically important case as “The Hot Chicks with Douchebags Case.” Plaintiffs Yvette Gorzelany (then 22), Joanna Obiedzinski (21) and Paulina Pakos (24, pictured) sued after being included in a book based on the website of the same name. The website is exactly what you’d expect. The young ladies claimed defamation and emotional distress as a result of their unfortunate choices of associates.
We’ve been fans of the website since we first heard about it from the complaint. We can all rest easy that this is constitutionally protected free speech. Thank you Elizabeth McNamara of Davis Wright Tremaine, for taking the case (she represented the publisher) and providing the tenuous connection to BigLaw. McNamara (Wisconsin BA, UNC JD) has worked some interesting cases: defending Dan Brown in a copyright suit about The Da Vinci Code; the producers of Seinfeld against misappropriation and libel claims by Mike Costanza; and Joe Klein in libel suits arising out of his novel Primary Colors. She was previously in house at Simon & Schuster and an associate at Paul Weiss.
Pic of Gorzelany and Obiedzinski, plus the New Jersey Law Journal’s analysis of the legal issues after the jump.
Gorzelany, Obiedzinski, Douchebag
In a nine-page opinion, Judge Toskos dismissed the complaint with prejudice, concluding there was no actionable defamation because the photographs and the accompanying text are used for humorous social commentary. A reasonable person would conclude a book named “Hot Chicks With Douchebags” is meant to be satirical, and, while some would consider it vulgar, it is not an assertion of fact, he said.
Citing passages from the book as examples, Toskos said a reasonable person would not believe that “in 1981 archaeologist Renee Emile Bellaqua uncovered in a cave in Gali Israel a highly controversial Third Century religious scroll suggesting that the ‘douchey/hotty’ coupling was a troublesome facet in early social religious structures” or that “Jean-Paul Sartre stated ‘man is condemned to be douchey because once thrown into the world he is responsible for every douchey thing that he does.’”
Since the plaintiffs are not named anywhere in the book and no captions describe either of the photographs in which they appear, no defamatory meaning can be imputed, Toskos said. “Failing as an assertion of fact, the book must be treated as protected expression of opinion. Consequently, it is absolutely privileged under the First Amendment,” Toskos wrote.
The plaintiffs’ claim for infliction of emotional distress was also dismissed because it lacked the requisite showing of falsity of allegations. The fraud claims were not sustainable because there was no falsehood or misrepresentation of an existing fact. And the invasion of privacy claim fell because the photos were taken in a public establishment. Even if they were private, the privacy claim is invalid because there was nothing offensive about the photos and a reasonable person would not find their production offensive, the judge said.
I’m sure our audience already knows this, but no good comes from hanging out at clubs in New Jersey named after clubs in Vegas. Or any clubs in Jersey for that matter.
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That is amazing – great synopsis. I wonder how many BigLawyers are on it?
That is amazing – great synopsis. I wonder how many BigLawyers are on it?