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Thursday, November 20, 2014

Does Tiger Have a Case?

Ever since Golf Digest published the Dan Jenkins piece My (Fake) Interview with Tiger and Tiger made it clear that he didn't like it at The Players' Tribune, a debate has been going on. Some of it concerns the fairness of the Jenkins piece while some concerns the legality. Does Tiger have any recourse if he doesn't get the apology he'd like?

To put it simply, no, he doesn't. But since this particular issue may be in the news for a while, you might like to know the hows and whys behind that answer. In this post I'm going to give you a quick lesson in the legal aspects of parody and satire. After all, you don't need to be a lawyer or even stay at a Holiday Inn to understand this stuff.

All you need is an authoritative website -- in this case, the very impressive site of the Reporters Committee for Freedom of the Press.

Dan Jenkins

First -- and this doesn't come from the website -- parody is generally humorous and focuses on form while satire tends to be less humorous and focuses more on a topic or person. Some of the comments made about the Jenkins article have protested that it isn't even funny, but satirists are rarely after a laugh.

A classic example of satire is A Modest Proposal (you can read it for free at this Project Gutenberg page), written in 1729 by Jonathan Swift, who is probably better known for Gulliver's Travels -- which is itself, according to Wikipedia, both "a satire on human nature and a parody of the 'travellers' tales' literary sub-genre."

In the same way, the Jenkins piece is both satire and parody -- a satire on Tiger's behavior (or at least the Jenkins perception of it) and a parody of magazine interviews.

About A Modest Proposal Wikipedia says, "This satirical hyperbole mocks heartless attitudes towards the poor, as well as Irish policy in general." Even now Swift's "proposal" -- which suggests that starving Irish beggars sell their babies to the rich as food -- remains a remarkably disturbing read, with very little humor. You can imagine how it was received when it was first published!

What Jenkins has done with his "interview" is mount a personal attack on Tiger, much the same way Swift attacked the uncaring members of Irish society in his day. It's not meant to be funny; it's meant to hurt. It's no secret that Jenkins has been, shall we say, a longtime antagonist where Tiger is concerned, and his pet peeve has been Tiger's refusal to grant him an interview -- hence, the interview format.

The question becomes, does this in some way classify as libel? The Reporters Committee site has a page called Protection for Satire and Parody, which says in part:
Satire and parody are important forms of political commentary that rely on blurring the line between truth and outrageousness to attack, scorn and ridicule public figures. Although they may be offensive and intentionally injurious, these statements contain constitutionally protected ideas and opinions, provided a reasonable reader would not mistake the statements as describing actual facts. Put another way, subjects of even the most biting satire or criticism cannot successfully sue unless the irreverent comments contain a provably false fact. Moreover, public officials and figures must prove that the defendant published the statement with actual malice.
Note that the comments may be "offensive and intentionally injurious" but still be protected under the First Amendment.

Another page, Avoiding Libel in Satire, lists a number of steps that a writer or publisher can take to make sure they're protected -- among them, making it clear from the outset that the piece in question would never be mistaken for a literal truth (a condition also referred to in the above quote). Among the other things Golf Digest did, they included the word fake in the article title, which certainly fulfills this criterium.

A particularly interesting page is called Defining "Actual Malice." (That page links from the final words in the quote.) The US Supreme Court defines actual malice as either purposely or negligently printing lies (aka "reckless disregard for the truth"). Interestingly, the page lists a number of things which do NOT constitute actual malice, and these include:
  • ill will or intent to harm
  • extreme deviation from professional standards
  • publication of a story to increase circulation
So in the end, even if you believe Dan Jenkins wrote the piece because he "had it in for" Tiger, or that he wrote it solely to boost magazine sales, or just that it was an unprofessional thing to do, the fact remains that he was totally within his rights to write the piece and Golf Digest was totally within their rights to publish it... and there is nothing Tiger can do about it.

Of course, that doesn't mean Jenkins should have written it... but that's why the debate will go on.

The photo comes from this ESPN story about the "interview."

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