No Sense of Humor   

A libel charge against satire? Now, that’s a joke.

"It was a joke." That's what Patrick Williams, managing editor of the Dallas Observer, tried to explain in a column a week after the alternative weekly ran an article by reporter Rose Farley, headlined "Stop the madness." Only in Texas would such an explanation be necessary.

Farley lampooned two powerful Denton County, Texas, officials, Darlene A. Whitten, then a juvenile-court judge, and District Attorney Bruce Isaacks, who, in October 1999, had decided to jail a 13-year-old boy on suspicion of making a terroristic threat. The boy, Christopher Beamon, had read aloud in class a Halloween horror story he had written for an assignment. Beamon's story graphically described the shooting of a teacher and two other students.

Granted, Beamon wrote his story only about six months after the Columbine High School shootings, so officials were skittish. But the Observer thought that they had overreacted and decided to publish a satire to ridicule them.

Farley's piece, which ran November 11, 1999, recounted how a fictitious 6-year-old girl named Cindy Bradley was arrested for writing a book report on Maurice Sendak's "Where the Wild Things Are." The article described the child standing before Judge Whitten in shackles and handcuffs, with the judge musing that "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." Isaacks was "quoted" as saying that he had considered trying Bradley as an adult, "but even in Texas there are some limits." Other real-life public figures were given manufactured quotations as well, including then-Texas Gov. George W. Bush.

No one disputes that the article, apart from some references to Beamon's detention, was completely fabricated. But some readers took it seriously. The newspaper received complaints about the officials after the article ran, and others contacted Whitten and Isaacks directly to express their outrage, some calling for the judge to be removed from the bench.

When the officials asked for a retraction, the Observer responded in a column, labeling the piece a "spoof" and writing that "a few people apparently were fooled, but if our satire was too close to reality, then the problem is with reality."

President Bush apparently didn't think it likely readers would believe that he actually said Sendak's book had "deviant, violent, sexual overtones." He didn't sue. But Whitten and Isaacks did. They claim Farley's article could be understood as making false statements of fact about them. And, they contend, the newspaper acted with actual malice--knowledge of falsity or reckless disregard for the truth--when it published the story.

The Observer filed two motions to have the case thrown out before trial. Conceding that the story was fiction, it argued that, just as with the infamous Campari advertising parody that lampooned the Rev. Jerry Falwell in Hustler magazine, the average reader would never have thought that the article stated facts about the plaintiffs. Obviously, a reasonable person would understand that it was satire.

Not in Texas, apparently. In May of this year, the Second District Court of Appeals in Fort Worth unanimously affirmed the trial court's decision to allow a jury to hear the case. Finding that parody or satire about a public official is not absolutely protected by the First Amendment if it can be taken as fact, Judge Anne Gardner's opinion chided the Observer for running Farley's article without a label to indicate that it was satire, as Hustler magazine had done with the Falwell ad parody. She wrote that the piece appeared in a news column, included truthful details from the Beamon case and was accompanied by Farley's reporting credentials. Those factors misled "even intelligent, well-read people," Gardner wrote. And if the Observer knew or suspected that the article would be taken seriously, then it would have published with actual malice and could be held liable for damages.

One would like to think that Gardner's opinion was itself a satire--a send-up of humorless, self-righteous jurisprudence that doesn't tolerate making fun of public officials. Unfortunately, it's the real thing.

When the Falwell case was working its way through the courts in 1986, federal Judge J. Harvie Wilkinson III wrote that "an observant electorate may also gain by watching the reaction of objects of satiric comment, noting those who take themselves seriously and those whose self-perspective is somewhat more relaxed." Judges in Texas are elected. Electors, take note.