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1-23-2013

So far, watching the trial, it's been hard to determine exactly what Todd M.J. Schnitt is looking for from Bubba The Love Sponge (Todd Clem) in his defamation lawsuit. It's also been hard to conclude exactly what damage was done, other than the described unpleasentness of being verbally harassed by the Bubba Army. A jury will have to decide if this all falls under the "you decided to put yourself out there" argument. We reached out to attorneys John Garziglia, Francisco Montero, and Kevin Goldberg for an opinion on what might happen to radio shock jocks if Bubba has to pony up for being too nasty to Schnitt.

John Garziglia is a Communications Attorney with Womble, Carlyle, Sandridge & Rice in Washington, D.C.
"I do not see any new “rules” if Schnitt wins. And even if the jury brings back a verdict for Schnitt, I have to wonder about the prospects of such a verdict being upheld on appeal. In a lawsuit such as this one, unless this is a ratings stunt, there are no winners and losers. Rather, both sides will have spent tens of thousands, and possibly hundreds of thousands of dollars on legal fees, and both sides will have invested humongous amounts of time that could have been better spent doing something productive. I hope that Bubba has insurance that covers his defense costs here."

Francisco Montero is with Fletcher, Heald & Hildreth in Arlington, VA
"It seems that Schnitt may be considered a "public figure" which would give him a higher burden in proving defamation since he is putting himself into the public spotlight like a politician. In the days of the personal attack rule, he could have made a demand for equal time at the FCC but the Commission repealed that vestige of the fairness doctrine over a decade ago."

Kevin Goldberg is also with Fletcher, Heald & Hildreth in Arlington, VA
"At the outset, I agree with Frank’s assessment that it could be difficult for Schnitt to win the case. Public figures lose the majority of defamation lawsuits and he has a number of difficult issues to overcome. As noted in your article, it may be difficult for Schnitt to prove any real damage to his reputation from the statements. Yes, he’s been harassed, embarrassed to some extent, and even threatened. There’s been some pain and suffering. But many courts won’t grant those 'special' damages until quantifiable 'actual' damages are proven first.

"But I think the lasting issue from a Schnitt win would be that morning DJs, and others who are entertainers, especially comedic entertainers, will certainly have to watch what they say. This goes to what we’d generally refer to as the 'assertion of fact' element of a defamation case. 

"Many people refer to this as the 'fact/opinion' distinction (the idea being that one can’t be held liable for defamation if he or she is stating an opinion). But the Supreme Court did away with that formulation and has instead said that defamation can only occur when the speaker or writer makes a false and defamatory assertion of fact (among other elements). But in looking at whether the speaker or writer was asserting a fact, a court has to look at the context of the statement: would a reasonable person believe that the speaker or writer was really attempting to state a fact, given the wording used, the type of publication or broadcast, or even the specific location within a program or publication. So a news story on page one is more likely to be an assertion of fact than an editorial piece; at the same time, a statement in an editorial piece in the New York Times might be closer to an assertion of fact than a story in the National Enquirier. 

"Looking at morning DJs, the listening audience understands, for the most part, that it’s all schtick, all an act. Even these 'radio wars' are concocted largely to garner ratings. Nobody really believes any of the allegations that are made – they’re closer to a rhetorical hyperbole than unvarnished truth. For Schnitt to win, he has to show that Bubba wasn’t simply going over the top. If that happens, it could chill other 'shock jocks' as well."

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