BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, January 23, 2004.)
The well known rap artist Eminem has been granted summary judgment in connection with a false light privacy claim brought against him because of lyrics which he wrote.1 In its decision, the Court analyzed the interplay between false light privacy and defamation claims and the First Amendment interest in protecting the free expression of ideas.
Eminem and the plaintiff, D’Angelo Bailey attended Dort Elementary School in Michigan at the same time. In 1999, a song written by Eminem entitled “Brain Damage” (the “Song”) was released on the “Slim Shady LP.” The lyrics recapture, in part, the alleged harassment that Eminem received at the hands of plaintiff while he was at school. They also describe an alleged incident in which plaintiff beat up Eminem in the bathroom of the school. Eminem also made statements regarding the Song in an interview published in Rolling Stone Magazine.
Plaintiff filed a complaint against Eminem on August 21, 2002 contending that the lyrics about him are untrue and have hurt his reputation. He alleges invasion of privacy false light relating to the lyrics and false light relating to the article in Rolling Stone Magazine in which Eminem allegedly made false statements about plaintiff. (It should be noted that the Court of Appeals has held that New York law does not recognize a false light claim.2 That court has stated that it will not ordinarily inject a falsity issue into a claim brought under the New York statute because then it would indistinguishable from the false light tort which New York does not recognize.)
Eminem moved for summary disposition on grounds that 1) plaintiff failed to create a genuine issue of material fact as to whether the lyrics and statements were made with a reckless disregard for the truth and highly offensive, 2) the lyrics and statements are not actionable under the substantial truth doctrine and on the basis that the material complained of previously had been disclosed to the public and 3) the statements constitute loosely definable language that can not be proved true or false and, therefore, are protected under the First Amendment.
In its discussion the Court notes that when First Amendment freedoms are involved, it must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression and examine the statements and circumstances under which they were made to determine whether the statements are subject to First Amendment protection. In determining a claim of defamation, a court must balance the common law interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting the free expression of ideas.
In New York Times Co. v. Sullivan3 (“New York Times”) the Supreme Court held that the First Amendment limits the reach of state defamation laws, that freedom of expression upon public questions is secured by the First Amendment and that debate on public issues should be uninhibited, robust and wide-open. The Supreme Court also has noted that the First Amendment requires that some falsehood must be protected in order to protect speech that matters. Although the Supreme Court consistently has interpreted the First Amendment to accord maximum protection to public speech about public figures, it has acted more ambiguously in the context of private-figure plaintiffs.
The decision states that, when the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant that is raised by common law. Although the Supreme Court never has clearly embraced the media-non-media distinction, it never has explicitly rejected it either. Three important factors define the parameters of libel liability: the public or private figure status of the plaintiff; the media or non-media status of the defendant, and the public or private character of the speech.
The Supreme Court has held that the rule of New York Times applies also to false light cases. An action for false light invasion of privacy requires a communication broadcast to the public in general, or publicized to a large number of people, which places the injured party in a light which would be highly offensive to a reasonable person. The actor must have had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. One Michigan state court decision held that in a case involving a private plaintiff, a media defendant and a publication regarding an area of public concern, the plaintiff bears the burden of proving falsity and adopted negligence as the standard. Because those factors apply here, the Court applies that same standard.
The Supreme Court also has recognized limits placed by the First Amendment on the type of speech that may be the subject of state defamation actions. For example, it has rejected the idea that all statements of opinion are protected and has directed that a defamatory statement must be provable as false to be actionable.
The Court indicates that in addition to the above constitutional limitations on false light and defamation cases, a defendant does not necessarily have to prove that a publication is literally and absolutely accurate in every minute detail to avoid liability. Substantial truth is an absolute defense to a defamation claim and applies with equal force to false light invasion of privacy claims for relief. The substantial truth doctrine absolves the defendant of liability when the substance of the charge is true irrespective of slight inaccuracy in details.
The lyrics to “Brain Damage” state in pertinent part;
Way before my baby daughter Hailey
I was harassed daily by this fat kid named D’Angelo Bailey
An eighth grader who acted obnoxious, cause his father boxes
so everyday he’d shove me in the lockers
One day he came in the bathroom while I was pissin
And had me in the position to beat me into submission
He banged my head against the urinal til he broke my nose,
Soaked my clothes in blood, grabbed me and choked my throat
I tried to plead and tell him, “We shouldn’t beef”
But he just wouldn’t leave, he kept choking me and I couldn’t breathe
Plaintiff contends that the statements about him in the song are untrue. At his deposition he testified that “we basically talked to each other and like joked with each other . . . my friends did bully type things, I was just with them.” In his affidavit he attested that he never physically attacked or bullied defendant; that he never beat or choked him; that he never threatened to kill him; and that he never did anything to defendant that would cause him to have a broken nose; and that he never left defendant lying on the floor of the elementary school bathroom in a pool of his own blood.
In examining whether plaintiff has created a general issue of material fact that the statements contained in the Song attribute to him characteristics, conduct or beliefs that are false and place him before the public in a false position, the Court must determine whether the statements are substantially true. The admissions and testimony of plaintiff must be compared with the lyrics contained in the Song to determine whether the statements have a different effect on the reader and/or listener from the uncontested facts. The Court concludes that the uncontested facts demonstrate that plaintiff did bump defendant in the hallway, did bully-type things such as stealing his orange juice and knocking over his books and was part of a group that assaulted defendant. Based on this conclusion, the Court is satisfied that a reasonable juror could not find that the facts as testified to by plaintiff would have a different effect on the listener and/or reader of the lyrics contained in the Song. Consequently, the lyrics are substantially true and, therefore, not actionable and, further, plaintiff has failed to create a genuine issue of material fact that defendant negligently placed him in a false light as to his character.
The Court also indicates that it has recognized that certain statements, although factual on their face, and provable as false, could not be interpreted by a reasonable listener or reader as stating actual facts about the plaintiff. Thus, parodies, political cartoons and satires generally are entitled to protection. It has recognized that some statements, read in context, are not capable of defamatory interpretation. Further, exaggerated language used to express opinion, does not become actionable merely because it could be taken out of context as accusing someone of a crime.
In concluding its analysis, the Court states that it is satisfied that plaintiff has created a genuine issue of material fact that the lyrics contained in the Song are highly offensive when compared to the uncontested facts. But plaintiff testified that he was happy to hear his name mentioned in the Song for approximately 6 months and willfully cooperated during two interviews about the Song. Because the Supreme Court stated that self-help is the first remedy to undo a harm of defamatory falsehood, and is relevant in balancing the rights of the alleged defamed individual with the defendant’s right to freedom and expression, the decision concludes that “if plaintiff believed the lyrics to be highly objectionable, it would be axiomatic that he would have used the interviews in Rolling Stone Magazine as an opportunity to refute the allegations and shed light on the truth of the matter. Instead he willfully accepted the spotlight placed upon him by the [S]ong.” Consequently, the Court states that it is satisfied that plaintiff failed to create a genuine issue of material fact that the lyrics contained in the Song are highly objectionable.
In addition, the Court concludes that it is clear from the context of the lyrics contained in the Song that a reasonable person would not take them as stating actual facts about plaintiff. It is apparent that defendant is telling a story, a fictional recitation of hard times during grade school when he was bullied by larger children and exaggerated languages used to convey an image. Any reasonable person hearing the lyrics in context would understand the message intended – the defendant was bullied in grade school and his alter ego is seeking revenge. Consequently, the lyrics and statements are further not actionable as they are rhetorical, hyperbole and exaggerated language.
Accordingly, the Court grants defendant’s motion for summary judgment.
1 Bailey v. Mathers, 2003 WL 22410088 (Mich.Cir.Ct.) (October 17, 2003)
2 Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436 (2000)
3 376 U.S. 254 (1964)