May 20, 2002
Satire, Lost on Some, Spins into a Libel Suit
By ADAM LIPTAK
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| Mark Graham for The New York Times |
| Rose Farley, a reporter for The Dallas Observer, is facing a libel suit. |
Rose Farley, a reporter for The Dallas Observer, thought she would have a little fun with a decision by a judge to jail a seventh grader for five days in 1999 because he had read a graphic Halloween story to his class, for extra credit.
The youngster, Christopher Beamon of Ponder, Tex., had laced his story with drugs and violence, and the authorities said it amounted to a threat of violence. His crime, apparently, was excessive spookiness.
Ms. Farley, writing in the tradition of Jonathan Swift and "Saturday Night Live," imagined a second incident, this one involving the jailing of a first grader for a book report on Maurice Sendak's "Where the Wild Things Are."
The Observer, a weekly alternative tabloid, published the article in its news columns. It was not labeled satire, and not everyone got the joke. Two of the officials named in the article sued for libel. Ms. Farley's offense, apparently, was an excessively deadpan sense of humor.
Public officials suing for libel must ordinarily prove that the defendants knew or suspected that what they were publishing was false. This month, a Texas appeals court ruled that this requirement, known as actual malice, is irrelevant where satire is concerned. The court, in declining to dismiss the case, said satire by its nature involves the intentional publication of false statements. Proof of actual malice, it held, follows automatically.
"The problem is certainly hard," said Rodney A. Smolla, a law professor at the University of Richmond in Virginia and the author of a leading libel treatise. "When you're dealing with satire or with fiction, you've always got a lot of difficulty in translating a lot of traditional libel doctrines."
Ms. Farley said her article provided plenty of clues that it was not meant to be taken seriously. "I have faith in the reader to catch on and be smart," she said. "The goal was to write a story that people would read and hopefully laugh at and along the way think about how institutions are reacting to juvenile justice."
The article attributed to one plaintiff, Judge Darlene Whitten of Denton County Court, who was the judge in the actual incident, the quotation, "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."
Bruce Isaacks, the district attorney, is the other plaintiff. He was quoted as saying of the fictional 6-year-old, "We've considered having her certified to stand trial as an adult, but even in Texas there are some limits."
Through their lawyer, Judge Whitten and Mr. Isaacks declined requests for interviews.
The paper published something akin to a retraction the next week. "It was a joke," Patrick Williams, a columnist, wrote. "We made it up." He went on to say that readers who had misunderstood the article were clueless.
He added, "If some people find it believable that a juvenile court judge would jail a 6-year-old girl for writing about a children's picture book, it's because that same judge jailed a 13-year-old boy."
The lawsuit followed.
Michael Whitten represents the plaintiffs and is married to Judge Whitten. He acknowledged how difficult it is to win a typical libel case under American law, which is quite protective of the press. "If I had to make a living prosecuting libel cases," he said, "I'd starve to death."
He said the article here presented straightforward issues.
"They labeled it as news," he said. "They put it in a section of the paper where they ordinarily put hard-hitting investigative reporting. A label or a few internal hints could have made it clear to the reader that this was satire."
He added that the legal issue was simple once the actual malice defense was eliminated. "You commit libel in the process of attempting to write parody or satire if a reasonable reader understands you to be writing actual facts," he said.
James A. Hemphill, who represents the paper and Ms. Farley, said his clients were considering appellate options. "I don't think it can be the law that you need a great big red warning label that says, `Warning: Satire.' "
If the appeals do not succeed, the case will proceed to trial.
Ms. Farley, who cites Mark Twain and The Onion as influences, said satire was meant to sneak up on the reader. "If it works, it seems, it has to have an element of truth in it," she said.
Jack M. Weiss, a New York lawyer who has represented news organizations in Texas, found it hard to take the case seriously.
"A 6-year-old girl shackled with tiny cuffs for writing a book report on a Maurice Sendak book?" he said. "If some readers thought this was for real, they are not the reasonable readers whose reaction libel law counts."
It is not clear how much sophistication Ms. Farley was entitled to expect from her readers. She said part of the problem was that people in Ponder, an hour north of Dallas, were not used to her newspaper's biting tone.
"Until this decision came down, what I thought we were dealing with was some local officials who got their tender feelings hurt," she said. "If this court really thinks the events in that story were real, it makes the need for satire in this area all the more apparent."
