MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh and you're listening to These Days in San Diego. When does a comedian go over the line? How much information is too much for a member of a jury? And how many law clerks does it take to make Supreme Court watchers speculate that the court's oldest justice may be about to retire? All these fascinating legal questions tell us it's time for another legal update on These Days, and it's a pleasure to welcome back These Days legal analyst Dan Eaton. Our schedules conflicted last month. We missed you, Dan.
DAN EATON (Attorney/Legal Analyst): Right, for the first – we’ve been doing this now, Maureen, for three years, and that was the first one we missed so…
CAVANAUGH: Well, the first case we’re talking about today involves a stand-up comedienne who does a routine about her mother-in-law and her mother-in-law is suing. Tell us about that.
EATON: Sure. It’s comedienne Sunda Croonquist, whom I had never heard before this case was brought. It’s now pending in New Jersey federal court, and what does it involve? Sunda Croonquist, who is half African-American and half Swedish, does a bit in her comedy routine about her Jewish mother-in-law. Ms. Croonquist was raised Roman Catholic but converted to Judaism shortly – sometime before she met and married her mother-in-law’s son, obviously. And she has a number of jokes in her routine that suggest that her mother-in-law is a racist. For example, she has a joke that says that shortly after meeting Ms. Croonquist, her soon to be mother-in-law expressed happiness to meet her and then said under her breath – asked her husband, under her breath, to put the pocketbook away. Ms. Croonquist obviously delivers the line a lot better than I just did.
CAVANAUGH: Yes. Yes.
EATON: It’s all in the delivery in these things.
CAVANAUGH: It’s all part of her stand-up act.
EATON: Yes.
CAVANAUGH: And now does it look like the court is going to allow this case to proceed?
EATON: It’s not entirely clear, and I’ll tell you why. One basic procedural hurdle is whether it belongs in federal court at all. The mother-in-law – well, the sister-in-law, technically, because they’re both suing, for – in this case. But the case was originally brought in New Jersey state court and then Ms. Croonquist moved it to federal court saying she’s domiciled out in California and, therefore, because they’re from different states and enough was at stake, it belonged in federal court. Now a magistrate judge is actually looking at that case. I actually talked to a New York lawyer who’s representing Ms. Croonquist. But assuming it stays in federal court, then a judge, a U.S. District Court judge, will have to decide whether to throw out the case because it has no merits. And it’s not entirely clear. The real question, Maureen, is whether any reasonable person could believe that the statements that Ms. Croonquist was made – was making in her comedy routine could be considered factual and, therefore, defamatory.
CAVANAUGH: Now that’s the case that Ms. Croonquist’s lawyers are making…
EATON: That’s what they’re arguing.
CAVANAUGH: …that it’s – no one could – would be able to believe that these comments – take them seriously. They’re part of a comedy routine, right?
EATON: What they actually say in the pending motion to dismiss, which I did read, is that the comments in the stand-up routine, quote, are so clearly ludicrous that no reasonable person could take them as fact, close quote. Now, what the mother-in-law and, again, the sister-in-law, who’s also claiming she was defamed, are saying that, look, you have to look at some of the statements that Ms. Croonquist has made on her My Space page and other social media that suggest that these actually were personal attacks, that she means to harm these women, and suggests that they are racist or clueless or various other attributes that are unflattering.
CAVANAUGH: Now, one of the courts, especially here in California, have they ever ruled about whether a comedian can be sued for defamation because of a routine?
EATON: Maureen, when I was doing research for the segment, it didn’t surprise me that there were not a lot of cases that deal with this. But it turns out in 1985, a California Court of Appeal actually ruled, in San Francisco, of whether Robin Williams, of course a very well known comedian, could be sued for making fun of what he claimed anyway at the time was a fictitious reference to a winemaker of, quote, black wines, close quote. The suggestion is – he was making a point that if there are white wines, why are there no black wines? He used the name of a fictitious, what he thought, I suppose, was a fictitious black winemaker that turned out to be the name of a real winemaker in San Francisco and the particular winemaker sued, saying that he was – that Robin Williams’ comments were defamatory, as a matter of fact.
CAVANAUGH: But the court still ruled in Robin Williams’ favor, though, in that case.
EATON: It did but not before the California Court of Appeal rejected Robin Williams’ argument that comedy categorically was protected as a matter of free speech and could never be considered defamatory. The Court of Appeal wasn’t willing to go that far. It said sometimes, yes, comedy can be sufficiently fact-like that it could be defamatory. But as you are right, ultimately the Court of Appeal ruled in favor of Robin Williams, saying that it was obvious to his audience that he was speaking as a comedian, not as a wine connoisseur and, therefore, no one could take them – his comments seriously. Quote, to hold otherwise, said the court, quote, would run afoul of the First Amendment and chill—(I wonder if that was a reference to wine?)—and chill the free speech rights of all comedy performers and humorists to the genuine detriment of our society, close quote. The issue was not whether it succeeded as comedy, said the court, but whether it really could be taken seriously. And the court ultimately threw it out, saying no one could reasonably believe that this was intended to be true.
CAVANAUGH: Now you say there aren’t many cases like this. Did you find anything else?
EATON: I did. Yeah, actually there were a couple. I mean, you look around enough in the law, you’re going to find something. In 2005, there was a Federal Appeals Court case that dealt with a flamboyantly dressed, well known daredevil who, under an ESPN humorist caption, they said – the caption said that the guy proved the way he was dressed that you’re never too old to be a pimp. The daredevil sued. It was thrown out. In context it said, no reasonable person could believe that the caption was serious. He was actually, the daredevil was, arriving at an awards ceremony with his relatively young wife. And there was another California case—I don’t know, California has it, but where Mr. Blackwell, of all people, who recently died, of course, sued Johnny Carson because Johnny Carson had a bit in his monologue claiming, of course falsely, that Mr. Blackwell had made an arch comment about Mother Teresa’s fashion sense. The Court of Appeal said, quote, it could not possibly have been understood as anything other than a joke by those who heard it and as such is not legally actionable, close quote, and naturally what the crux of the case is, in the pending motion to dismiss in the case involving Ms. Croonquist’s in-laws.
CAVANAUGH: It seems that since – it seems that a lot of these opinions go in her favor.
EATON: They do, as a matter of fact, because the idea is comedy is so over the top, how can you really take it seriously? There was another case that I found out of New York where a guy by the name of Michael Constanza sued Jerry Seinfeld because he claimed that the fictitious character of George Constanza was based on him, and he said that he had certain of the physical attributes of George Constanza. Unfortunately, it didn’t have the kind of legal issues that are directly at issue here but my Business Ethics students know what a fan of Seinfeld I am, so I had to mention it on the air.
CAVANAUGH: Oh…
EATON: Thank you very much, Maureen.
CAVANAUGH: You’re very welcome. Well, I’ll mention the fact that of all the male comedians who’ve done mother-in-law jokes, you would know the one who gets sued is a female.
EATON: That’s exactly right. Yeah, and she’s saying, look, I’m not going to pay any money, I’ll remove the offensive content if she insists on it but I’m not going to pay any money and so the case is going to go forward. Ultimately, a court is going to have to decide whether there are enough legs to make this go forward.
CAVANAUGH: Well, let’s move on…
EATON: Yeah.
CAVANAUGH: …to a case that revolves around jury members…
EATON: Yeah.
CAVANAUGH: …being asked to swear they will not do independent research on the internet. They will not Google anything involving the trial they’re deciding. Tell us a little bit about that case that the jury is hearing.
EATON: Right. The case – Regular listeners to this segment may remember that back in January of 2007, we talked about a case involving win a – Hold Your Wee for a Wii, a case involving a contest out of a Sacramento area radio station which urged their – the contestants to drink as much water as they could without going to the bathroom and win a Wii, which, at the time, of course, was a very popular game. I guess it still is.
CAVANAUGH: Yes, it is.
EATON: And this woman did engage in the contest, with several young children, she was the mother of several young children. She drank an awful lot of water. She only ended up getting second place. As it turns out, she didn’t even win. But then she, unfortunately, died several hours later of hyponatremia, which is toxic water poisoning. She subsequently sued the deejays and the radio station, saying they should have taken precautions. They should have known that this water poisoning was a possible (sic) and at least when she said her head was starting to hurt, they should have cut it off instead of letting her to drink herself to death. And so now that case is pending before a jury. What happened, well, San Diego trial lawyer Harvey Levine is actually trying this case up in Sacramento, and he brought a motion saying, look, I want the jurors to swear before they start – they take their oath as jurors and start sitting as jurors and after their service that while they were serving as jurors, they never use the internet to do independent research. Why, Maureen? Because a basic tenet of jury service is that you can only decide the case based on the facts that you hear in the courtroom. And Harvey Levine won that motion. The fact is that the jurors in that case had to sign a declaration promising that they would not use the internet to do any independent investigation, and after their service is over, they will have to sign another declaration saying that they did not do it while they were members of the jury.
CAVANAUGH: Now that admonishment to the jury that – not to do any independent research has always been tricky because jurors have always sort of wanted to go to the scene of a crime or…
EATON: What are they leaving out?
CAVANAUGH: Yes, exactly. But with the internet, that really ups the ante and I wonder, is this really becoming a problem?
EATON: Well, apparently it is. There are certain news stories that suggest that this is a problem. One jury consultant, by the way, that was quoted in a San Diego Union-Tribune article in this, said that he doubted whether that would actually have any kind of real impact on the jurors but signing a declaration under oath does tend to concentrate the mind. Before that, a March 2009 story in the New York Times pointed to several cases around the country, Maureen, where you had to have cases thrown out because jurors admitted to having used the internet. In one federal case in Florida involving a drug prosecution, no fewer than nine jurors admitted that they had done independent investigation and, therefore, a mistrial had to be declared. So apparently this is becoming a problem. There was a political corruption case in Pennsylvania where a similar thing happened. The Pennsylvania judge said, nah, I think we’re going to let the case go to a verdict but the politician—it was a political corruption case—was convicted and ultimately what happened was that the politician is appealing the case and is claiming juror misconduct is one of the grounds for appeal. So apparently this is a problem and so courts are beginning to take affirmative steps to address this.
CAVANAUGH: That was going to be my question, are California courts going to be advising – changing jury instructions, maybe, to be more specific about jurors using the internet?
EATON: And it’s important to real – The answer is yes, and it’s important to realize that it’s not just using the internet to get information but it’s also using social media sites like Twitter to give out information like real-time reports…
CAVANAUGH: Oh, yeah.
EATON: …about what you’re doing in jury service because, of course, you’re not supposed to talk about what you’re doing on jury while you’re in jury service and so on. But, yeah, the San Francisco Superior Court has a rule pending that may become effective on January first, it’s out for public comment right now, that would instruct jurors that they may, quote, not blog, tweet or use the internet to obtain or share information, close quote, about the cases on which they are serving. So, yeah, people are taking this very seriously because it is important that jurors decide the case only on the facts that they hear in the courtroom and that they not talk about what they are experiencing until after the trial is over.
CAVANAUGH: Let’s move on because this the day after the first Monday in October…
EATON: It is. Right.
CAVANAUGH: …which means that the U.S. Supreme Court has just begun its new session. There is a new configuration of justices with Sonia Sotomayor on the bench. Some court watcher, though, believe there may soon be another new member of the court and it all has to do with the hiring practices of Justice John Paul Stevens. Please explain that…
EATON: Sure.
CAVANAUGH: …to us.
EATON: Justice John Paul Stevens will turn a ripe young 90 next April, as a matter of fact, making him the oldest member of the court. It also will mean that he will have served as some time over 35 years on the court. The fact is that he only hired one law clerk. Well, active just – For the coming term. That is a year from now, the term that would start in October of 2010. Active sitting justices actually hire four clerks. So there is some speculation that Justice Stevens is going to step down at the end of this term. We’ll have to see. Obviously, the court is now in session with a new judge already, judge – Justice Sotomayor, who actually heard her first case, remember, in September when they had a special sitting for the Hillary the Movie case that was held over for reargument, and so there already is a new court. But Justice Stevens’ speculation is, is that the hiring has indicated that he may not be long for the court and that at the age of 90, he may step down.
CAVANAUGH: Is – That’s so interesting. Is it possible for him to change his mind and hire more law clerks?
EATON: Oh, sure because – Well, yeah, because he hasn’t – One, he hasn’t retired yet and…
CAVANAUGH: Uh-huh.
EATON: …he – this is all speculation at this point. But one of the interesting thing is if he retires and if one of the two finalists that judge – that President Obama did not pick was actually picked—remember they were both women—if President Obama picks another woman, it would be the first time in American history, assuming Justice Ginsburg continues to serve, that we will have three women on the U.S. Supreme Court. Now that’s still only a third but it’s a remarkable development considering that Justice Ginsburg for awhile was only member of – female member of the Supreme Court after Justice O’Connor retired and, of course, Justice O’Connor was the only woman for a long time before Justice Ginsburg was made the first pick of President Clinton.
CAVANAUGH: Well, we’ll have to keep counting those law clerks to find out what’s going on.
EATON: We will. Watch the hiring process.
CAVANAUGH: Thank you so much for…
EATON: Sure.
CAVANAUGH: …speaking with us. I’ve been speaking with legal – our These Days legal analyst Dan Eaton. And, please, if you would like to join the conversation online, post your comments about this segment at KPBS.org/TheseDays. Now coming up, we’ll get an update on the evolving goals of the slow food movement as These Days continues right here on KPBS.
