MVP characterizes the statements at issue (the “Statements”) as:
2. Dillard’s March 28, 2019 blog post where “Dillard posted a fabricated story about two girls who had, allegedly, been severely negatively affected by MVP.” [Compl. ¶ 20.] This Motion will refer to this statement as the “Parody Post,” and a copy of the March 28, 2019 blog post is attached as Exhibit B. (Footnote 3).
B. THE PARODY POST IS NOT DEFAMATORY.
The second of Dillard’s statements of which MVP complains is the Parody Post—a March 28 blog post. See Exhibit B. Though MVP describes the post as “a fabricated story about two girls who had, allegedly, been severely negatively affected by MVP,” (Footnote 15) [Compl. ¶ 20], the post actually is what any reasonable reader would recognize as satire or parody and cannot support a defamation claim.
1. The Parody Post is Not Susceptible to Conveying Defamatory Meaning.
The same contextual inquiry that rendered the Math Performance Statement nondefamatory produces the same conclusion with respect to the Parody Post. Given the non-neutral circumstances of the post, its forum, and its author, no one would assume the post to contain unbiased statements of pure fact. See Section II.A.1, supra.
The nature of the post—it being a parody piece—only strengthens that conclusion. Figurative language such as satire, parody, and rhetorical hyperbole, have a time-honored and protected role in our nation’s public discourse. See Mink v. Knox, 613 F.3d 995, 1005 (10th Cir. 2010). “The First Amendment’s shielding of figurative language reflects the reality that exaggeration and non-literal commentary have become an integral part of social discourse.” Id. at 1006. These types of expressions “cannot reasonably [be] interpreted as stating actual facts about an individual,” and because “no reasonable person would take these types of speech as true, they simply cannot impair one’s good name.” Id. at 1005 (internal quotation marks omitted); see Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 380 (Utah Ct. App. 1997) (“Under the law of defamation, ‘[a] parody or spoof that no reasonable person would read as a factual statement, … cannot be actionable as defamation.’” (quoting Walko v. Kean College, 561 A.2d 680, 683 (N.J. Super. Ct. Law Div. 1988)). Again, context is key. Context “can turn what, out of context, appears to be a statement of fact into ‘rhetorical hyperbole,’” and “[e]ven false statements of fact” are not actionable if a reasonable reader would recognize the statements as satire or parody. Mink, 613 F.3d at 1005-06.
These standards shield the Parody Post. In the post, Dillard first proposes “let’s do an MVP exercise” and then embarks on a story about “Miranda and Neha” who “are best friends,” who “hope to go [to] college together and be roommates” and who both “sign up for Math 1 Honors in 8th grade.” See Exhibit B. From this beginning and the context of the post as a whole, the two girls and the story are obviously a fictional parody and no reasonable reader would think otherwise. See Busch v. Viacom Int’l, Inc., 477 F.Supp.2d 764, 775 (N.D. Tex. 2007)
(“[B]ecause Plaintiff’s image appears in a ‘fake endorsement’ of Robertson’s diet shake on The Daily Show, a satiric program, no reasonable viewer would have believed that the challenged clip contained assertions of fact about Plaintiff.”). Indeed, the story is rightly recognized as an attempt to use figurative language to illustrate concerns about MVP’s program rather than to suggest that Miranda and Neha were actual students who actually had the depicted experiences.
Consequently, the Parody Post is not defamatory cannot support MVP’s claim.
3 The Parody Post is also available at https://wakemvp.blogspot.com/2019/03/ready-set-no-story-of-miranda-and-neha.html.
15 Even MVP’s basic summary misrepresents the post. In Dillard’s fictionalization, only one student is portrayed as having a negative experience with MVP’s program.