Red Buttons died yesterday. He was an Oscar-winner and famous comedian, but we at Overlawyered will remember him for suing Conan O’Brien for mentioning him in a 1993 sketch. Portions of the opinion in Buttons v. National Broadcasting Co. Inc. (No. CV94-0354 (C.D. Cal.)) (via my brother) are after the jump:
This action arises out of a comedy skit performed on the October 11, 1993, episode of the late-night show, Late Night with Conan O’Brien (the “show”). In that skit, O’Brien has a conversation with a larger-than-life picture of the actor, Ted Danson. Danson is in blackface and there is a cutout where Danson’s mouth would be. A cast member speaks Danson’s part while his lips are visible talking through the cutout. O’Brien “interviews” Danson about his controversial Friars Club “roast” of Whoopi Goldberg. At one point in the interview “Danson,” claiming that his performance was really funny, states: “Marty Ingalls was peeing in his pants, Freddie Roman was worshiping me, Red Buttons said it was brilliant,[FN1] Jack Carter was in tears.”
[FN 1: The complaint alleges the statement in the issue was that “Red Buttons thought the Ted Danson roasting of Goldberg at the Roast was funny or a “scream.” ” The quotation in the text, above, appears in the videotape supplied by the defendants.]
The complaint alleges:
“This statement is libelous on its face because it exposed Plaintiff to hatred, contempt, ridicule and obloquy by asserting explicitly that Plaintiff condoned racial, ethnic, and gender bias slurs and lewd sexual remarks by someone (Danson) in black face makeup at the Roast at a time when such a public outcry against this incident was prevailing.
“The statement implied, moreover, that Plaintiff was a bigot, racist, chauvinist, perverted and lacked moral and ethical standards and character sufficient to be cognizant of the derogatory nature of Danson’s remarks.”
[The court finds federal diversity jurisdiction and denies a motion to remand to state court.]
The issue raised by defendants’ motion to dismiss is whether or not, as a matter of law, the supposed libelous statement is reasonably incapable of being given a defamatory meaning…..
Here, it is clear from the context that the statement was not intended as and would not reasonably be understood as an assertion of fact. First, the Show itself is a comedy show. The Ted Danson Roast skit was clearly delineated as a comedic routine. The larger-than-life photo of Danson’s head was intended to reap ridicule, as was the cutout with the moving mouth. The routine itself was a parody of a celebrity attempting to defend himself from public criticism on an interview show. The test is an objective one — whether an objectively reasonable person would understand the words “Red Buttons said it was brilliant” in the context in which they were spoken as conveying a statement of fact about Red Buttons. The answer must clearly be no.
[All parties stipulate to the accuracy of the NBC videotape.]
Defendant (NBC) also asks the court to take judicial notice that the Show is a comedy show, featuring humor and satire and that O’Brien is a comedian. Although this request is unopposed, it appears to be unnecessary because the “facts” of which judicial notice is sough are apparent from a viewing of the videotape.
Because the court has considered a matter extrinsic to the amended complaint, i.e., the video tape of the Show, this motion will be disposed of as a motion for summary judgment without objection from plaintiff.
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