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Parody ruling threatens political commentary, attorney says

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From the Summer 2002 issue of The News Media & The Law, page 50.

From the Summer 2002 issue of The News Media & The Law, page 50.

The article in the Dallas Observer told the story of a 6-year-old girl who was arrested, shackled and jailed for 10 days for writing a book report about Maurice Sendak’s classic children’s tale, “Where the Wild Things Are.”

An obvious joke, right? Not to the Texas Court of Appeals in Fort Worth (2nd Dist.), which ruled on May 2 that a libel lawsuit against the alternative weekly newspaper can proceed because readers of the satirical story might not have understood that the article was in jest.

The ruling endangers all forms of political commentary in Texas, including editorial cartoons and opinion columns, said James Hemphill, the newspaper’s attorney.

“This opinion adds a dimension of uncertainty as to the degree of protection political commentary will be afforded when it’s done in the form of satire or parody,” Hemphill said.

A three-judge panel of the appeals court refused to dismiss the lawsuit, filed by a juvenile court judge and a district attorney to whom fictional quotes were attributed in the parody. The newspaper has asked the panel to rehear its appeal, Hemphill said.

The newspaper contends that the article published in 1999 was clearly a parody that the reasonable reader would not have believed to be true. But the appeals court held that satire or parody that conveys a substantially false and defamatory impression is not protected under the First Amendment.

The story, titled “Stop the Madness,” poked fun at public officials for the real-life jailing of a seventh-grader who wrote a graphic Halloween story depicting the shooting death of a teacher and two students.

“Stop the Madness” portrayed a fictional 6-year-old named Cindy Bradley, who supposedly was arrested when public officials decided her book report of “Where the Wild Things Are” represented a terroristic threat.

“It’s time for us to stop treating kids like children,” the article quoted the sentencing judge as saying to young Cindy.

The article explained why ankle shackles were needed to restrain the girl. She had a disciplinary record for spraying a boy with pineapple juice and for sitting on her feet.

The article quoted an American Civil Liberties Union spokeswoman’s reaction to Cindy’s jailing: “Jesus H. Christ, are you people nuts? She’s just a kid.”

The story referred to a religious group whose name spelled the acronym GOOF. And it quoted Cindy’s reaction to the charge that “Where the Wild Things Are” could corrupt children’s minds: “Like I’m sure. It’s bad enough people think like Salinger and Twain are dangerous, but Sendak? Give me a break, for Christ’s sake. Excuse my French.”

All of those details were obvious clues that the story was parody or satire, the newspaper’s attorney argued.

The appellate judges thought otherwise.

“A reasonable reader could find this story to be believable,” Justice Anne Gardner wrote for the panel.

The story was published under the heading of “News,” attributed believable quotes to public officials and referred to public officials by their real names, the opinion said.

Some readers actually thought the report was true, and a radio talk-show host and a University of North Texas newspaper also treated the story as true, the court noted.

The radio host later testified that he realized the story was fictional once he had read all of it, Hemphill argued. There was no evidence that others who treated the story as true had actually read it, Hemphill told the court.

The newspaper also argued that the court should not apply the traditional “actual malice” standard, in which public officials who sue the media for libel must prove that the media knew a published story was false or acted with reckless disregard for the truth.

The Observer argued that satire and parody, which are intentionally fictional, cannot overcome the actual malice test. The newspaper urged the court to adopt a modified actual malice test for satire and parody.

Under the modified standard, the plaintiffs would have to prove that the newspaper “subjectively intended for readers to believe the fiction was fact,” the court’s opinion said.

The appeals court rejected the modified standard, saying it improperly raised the plaintiff’s burden of proof. (New Times, Inc. v. Isaacks) — MD