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October 29, 2008 3:09 PM

Gibson Dunn Defends Seinfeld from Defamation Claims

Posted by Andrew Longstreth

Can a comic's jokes be the basis of a defamation suit? Or is the comic protected by the First Amendment? These are some of the interesting questions that are beginning to take shape in the tabloid-ready dispute between megastar Jerry Seinfeld and a not-so-famous cookbook author.

The case started earlier this year when Missy Chase Lapine, author of The Sneaky Chef, sued Seinfeld's wife, Jessica Seinfeld. Lapine claimed that Seinfeld had plagiarized The Sneaky Chef when she wrote her own book on how to get kids to eat their vegetables, Deceptively Delicious. Lapine sued Jessica Seinfeld for copyright and trademark infringement. But she also sued Jerry Seinfeld for defamation, citing some of his comments about her on the Late Show with David Letterman. (Here's a snippet of the interview. We apologize for the poor audio quality.) Among other things, Seinfeld told Letterman that "one of the fun facts of celebrity life is that wackos will wait in the woodwork to pop out," adding that "many three-named people do become assassins." [Seinfeld didn't note that another fun fact of celebrity life is that your wife gets to plug her book on Oprah, and then thank Oprah for the appearance with about $16,000 worth of shoes.]

In an affidavit filed this week in New York federal court, Lapine described the pain and suffering she had endured at the hands of the Seinfelds. "I never felt so frightened and vulnerable as the day my daughter, seven years old, came home from school and asked, 'Mom, what is an assassin?' in reference to Jerry Seinfeld calling me an assassin," she wrote.

Orin Snyder of Gibson, Dunn & Crutcher, who represents the Seinfelds, gave us the following statement in response: "As a comedian, Jerry has a right under the First Amendment to tell jokes. Ms. Lapine, on the other hand, was not joking when she maliciously accused Jessica Seinfeld, who has young children, of plagiarism, a charge that is demonstrably false. Jessica didn't copy anything and this entire case is no more than a cynical publicity stunt. It is obvious that the inclusion of Jerry in this lawsuit is designed purely for media consumption and only demonstrates that the copyright case is bogus."

In its motion to dismiss the defamation claim, filed over the summer, Gibson Dunn makes compelling arguments, noting that Seinfeld's statements were opinions, which "are absolutely privileged and shielded from claims of defamation under the First Amendment." The Gibson brief also argued that under Supreme Court precedent the type of statements Seinfeld made are grounds for an allegation of slander, not defamation, yet Lapine had failed to plead "either special damages or language that is slanderous per se."

In a brief conversation, Snyder amplified his position. "Courts have protected far more harsh and inflammatory language than the relatively mild and humorous comments that Jerry made," said Snyder. "This is not a remotely close call."

We called Lapine's lawyer, Howard Miller of Girardi & Keese Law, who told us, "Being a comedian doesn't give you a 007 license to slander. The First Amendment is not a shield for false actual statements."

Miller also took issue with Snyder's characterization that Lapine had "maliciously" attacked Jessica Seinfeld. The only action Lapine has taken, said Miller, was to file a lawsuit. "To my knowledge, she said nothing malicious" said Miller. "It will all be decided in court."

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Slow news day? Isn't there an election coming up or some economic issues of interest?

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