Copyright Law

Douchetastic Defamation Suit Filed

By Marc Randazza

Michael Minelli, a 27-year old "club promoter," is spewing vinegar at Simon and Schuster, publisher of the book Hot Chicks with Douchebags. Apparently, Mr. Minelli finds the description "douchebag" to be inaccurate, and to say the least, neither sweet nor fresh.

In his complaint, Minelli seeks at least $10,000 in damages per count in his five-count action for defamation, intentional and negligent infliction of emotional distress, invasion of privacy, and a loss of that fresh feeling (to his goodwill, anyhow).

Minelli says he "has been, is now and continues to be called a douchebag by friends, acquaintances, coworkers, employers and strangers alike." (source)

The book, which began as a popular website describes Minelli in less than flattering terms -- stating (at page 202) that Minelli's "popped-collar, spikey-haired presence was so far beyond regular douche, so far beyond uberdouche, he could spontaneously create a new element on the periodic tables--Douche Nine." Minelli's complaint explains that "a Douchebag is, inter alia, 'a feminine hygiene device used for cleansing.'" (Complaint at 3). It also states "The Publication depicts Plaintiff as a 'Douchebag' and a dubious man." (Complaint at 4).

This case seems pretty clearly headed for disaster. It is obvious that the book does not use the term "douchebag", as Minelli claims, to describe a feminine hygiene product. The Merriam Webster dictionary defines "douchebag" as an "unattractive or an offensive person." Whether Mr. Minelli is unattractive or offensive is certainly a matter of opinion.

"Under the First Amendment there is no such thing as a false opinion. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.? Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). An alleged defamatory statement ?must be provable as false before there can be liability under state defamation law.? Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

The term ?douchebag? may have different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term ?scam? ?means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ?X is a scam? incapable of being proven true or false.?); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a ?crook?). ?Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.? Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).

The only thing that Minelli will succeed in accomplishing with this lawsuit is adding to the number of people who think he is a douchebag and increasing the sales of the book.

Full post as published by Citizen Media Law Project on November 19, 2008 (boomark / email).