AAP, ABFFE File Brief in Support of Americans' Right to Parody

The Association of American Publishers (AAP), the American Booksellers Foundation for Free Expression (ABFFE), and a broad coalition of free speech groups went to court to defend Americans' right to parody and satirize public officials without fear of being sued for defamation. On Tuesday, November 4, the groups filed an amicus brief in support of the Dallas Observer, an alternative newsweekly that is being sued for libel by two elected officials for a satirical article it published in November 1999. The groups contend that if the judge were to rule against the Observer, it would have serious First Amendment implications.

"This is the second time in recent years that ABFFE has defended the right to satirize," said Chris Finan, president of ABFFE. "The first was for The Wind Done Gone case. The courts ruled on that case correctly, and we are hopeful they will see the important free expression issue at stake here."

In November 1999, Denton County, Texas, District Attorney Bruce Isaaks and Judge Darlene A. Whitten filed suit against the Dallas Observer, claiming they were libeled by a satirical article published in the November 11 edition of the paper. The parody was published soon after Isaaks and Whitten played prominent roles in the jailing of a 13-year-old boy in Ponder, Texas, for a Halloween horror story he wrote, in which he described the shooting of two classmates and the accidental shooting of a teacher. The student was arrested and detained for five days in a county juvenile facility by Judge Whitten, upon the request of D.A. Isaacks' office, for "making terroristic threats." The incident made news in both local and national publications.

The Observer's satire took the form of a fake news story entitled "Stop the Madness." The article detailed how a fictional six-year-old girl, Cindy Bradley, was arrested without incident during story time at her class at the Ponder Elementary School, on suspicion of making a "terroristic threat" in her book report on Where the Wild Things Are by Maurice Sendak. Courthouse security officers -- citing concern over the diminutive girl's school disciplinary record (which included "spraying a boy with pineapple juice and sitting on her feet") -- had Cindy handcuffed and shackled at the ankles. The Observer quoted a fictional bailiff, "It's not easy finding cuffs that small…. Fortunately, we ordered a special set last week after that other kid was busted."

The parody cited Isaaks as having said that his office had "considered having her certified to stand trail as an adult, but even in Texas there are some limits" and Whitten as having noted, "Any implication of violence in a school situation, even if it was just contained in a first-grader's book report, is reason enough for panic and overreaction." (To read "Stop the Madness" in full, click here.)

Despite the fact that the Observer published a retraction in which it explained that the story was a joke and referred to readers who believed it was true as "cerebrally challenged," Whitten and Isaaks sued New Times, Inc. (publisher and partial owner of the Observer), two Observer editors, and a staff writer.

The defendants moved for summary judgment on the grounds that the story was fictitious and the plaintiffs could not show actual malice, but the trial court denied the motion. The Court of Appeals affirmed the court's decision and ruled that "Stop the Madness" should be subjected to a jury determination as to potential defamation liability because it was not literally labeled as a satire.

The amicus brief points out that "beyond the absurd proposition that a six-year-old girl could be arrested for anything, much less writing a book report … on one of the most critically acclaimed and best-loved children's books of all time, the article is saturated with details, some specifically noted by the Court of Appeals, any one of which would have put a reasonable reader on notice that the article as a whole was not to be taken literally."

The groups also stress that if the Texas Supreme Court fails to treat "Stop the Madness" as a constitutionally protected expression of editorial opinion, it would "significantly chill the exercise by writers, artists, publishers, broadcasters, filmmakers, and others of the right to employ the time-honored tools of satire and parody as instruments of social and political commentary in works that could subject them to jurisdiction in Texas."

In addition to AAP and ABFFE, the amici include: Association of Alternative Newsweeklies; Cartoon Network, LP, LLLP; Comic Book Legal Defense Fund; Freedom to Read Foundation; Magazine Publishers of America; PEN American Center; Playboy Enterprises, Inc.; Publishers Marketing Association; Reporters Committee for Freedom of the Press; Society of Professional Journalists; and Viacom, Inc. The brief can be found on the AAP web site at http://www.publishers.org. --David Grogan