A Classic Sullivan v. Times Case - Leno Being Sued For Humor Directed At Public Figure

Comedian Leno Sued for 'Sperm Donor' Joke

There's no accounting for poor taste in executing a joke. However, the "public figure doctrine" established in New York Times Co. v. Sullivan, 376 U. S. 254 (1964) prevents someone that has been, due to their own action or through the reporting of events that catch the public eye in the normal course of reporting news. Leno has the inherent right to free speech, especially in terms of political commentary. Comedy and satire are forms of political commentary that the First Amendment protects.

If you ask me, the plaintiff in this case ought to be suing the publication that printed her picture with the dog sitting next to her with the headline, "Are you my sperm donor...?" The headline itself opened the door for such comments.

Back in January, Marilyn Drake's photo was featured alongside a serious front page story in the New York Times. In February and March, talk show host Jay Leno made the same picture the butt of his jokes on "The Tonight Show."

In April, Drake went after the comedian in San Francisco Superior Court, filing a lawsuit that accuses Leno of defaming her with a joke in one of his "headlines" segments, in which he delivers one-liners playing off real news stories or advertisements.

In Drake's case, she claims that Leno's comments suggested that she engaged in bestiality, and opened her up to ridicule for her ovum donation.

"At what point do you draw the line between good-natured fun and ridicule?" said Drake's lawyer, Bay Area litigator Stanley Hilton. The complaint names Leno, "The Tonight Show," a production company and NBC Studios as defendants, and seeks punitive and other damages.

Tracy St. Pierre, a spokeswoman for NBC, said Drake is suing over "what was obviously a joke," and that "the law is clear that humor like this is firmly protected by the First Amendment."

Judging by still photos and quotes displayed on the show's Web site, it appears Leno's shtick went something like this: First, he made fun of a quote in a news story called "What to get the dog that has (almost) everything," about a prosthetic testicle product for neutered canines.

Not long afterward in the show, he displayed the New York Times story with the photo of Drake, who happened to be pictured sitting on a couch alongside a dog, under the headline, "Are you my sperm donor? Few clinics offer answers."

Judging by the quotes on the show's Web site, Leno then gave voice to the woman in the photo and the dog, and in a play on his previous joke, said, "Are you my sperm donor? No! I have fake testicles! How could I be your sperm donor?!"

While some of his audience appreciated the joke -- at least one viewer referred to it as "funny" on a posting on myspace.com -- Drake's suit asserts that it has damaged her emotionally and financially. Hilton notes that his client has donated her eggs repeatedly, and the suit claims that the New York Times story had previously "given [her] some prominence in the national discussion" on fertility clinics.

Hilton doesn't think that comedians like Leno are sued very often, because so many of their zingers target famous people.

But he's aware of a recent appellate court decision in New York state that went against a woman who, like Drake, was suing "The Tonight Show" and Leno over one of the "headlines" jokes.

In Walter v. NBC Television Network, 05-01646, an appellate court in March dismissed that plaintiff's civil rights and intentional infliction of emotional distress claims, citing an exception for some comedy performances allowed under New York law.

Hilton thinks his client's case is different because the plaintiff in New York was, according to the Associated Press, suing over Leno's comments about her looks. "In this situation, what he alleged about [Drake's] activities is of course not true," Hilton said.

But Karl Olson, a partner at San Francisco's Levy, Ram & Olson who represents other defendants (including The Recorder) in First Amendment cases, said last week that California case law "pretty well settles" that a defamation claim won't succeed if the audience understands a joke was meant as humor.

"I'm not a regular watcher of Jay Leno," he said, "but I think everybody knows that these late-night guys are making jokes when they're making fun of people."