Hulk Hogan can not be defamed

Wrestler and sometime actor Hulk Hogan has been in the news a lot lately, and it has not all been flattering, but a few years ago, a court found that Hogan could not recover for some similarly unflattering commentary - the reason being that "Hulk Hogan" does not really exist. In fact the person pictured below was born Terry Gene Bollea, the son of Peter and Ruth Bollea of Augusta, Georgia. When Terry Gene Bollea entered the world of professional wrestling, he adopted a new name - no, not Hulk Hogan, not yet. First, he was Terry Boulder. Then, Terry "The Hulk" Boulder (although occasionally billed as Sterling Golden). According to wrestling magnate Vince McMahon, at some point between 1979 and 1980 McMahon's father indulged an obsession with Irish names by re-dubbing Bollea with the surname "Hogan."


We now flash forward twenty-five years to the case of the day, Bollea v. World Championship Wrestling, Inc., 271 Ga. App. 555, 558 (Ga. Ct. App. 2005). Bollea sued for defamation over comments another wrestler made on air which went outside of the script for an otherwise scripted fued between Hogan and the other wrestler. The court found:

Wrestling is a form of entertainment and the characters involved are fictional. ... During his "promo" speech, Russo never mentioned Bollea, only the fictional character Hogan. Further, according to Russo's affidavit, he made this speech solely as his on-air character to advance the story line and thus to lead in to the final match of the event between Jarrett and Booker T. In light of the above, the trial court correctly concluded that the allegedly defamatory speech could not be understood as stating actual facts about Bollea.

(Emphasis added). Id. at 558.

This decision is made on the premise that defamation must be "of and concerning" the plaintiff, the same basis for the rejection of cases alleging defamation of large groups instead of identifiable individuals. However, this case is truly a stunner (I could be so crass as to pun, and call it a "stone cold stunner"). There is precious little precedent to support this finding. In Perry v. Columbia Broadcasting System, Inc., 499 F.2d 797 (7th Cir. 1974), Lincoln Theodore Perry, the actor who had made his fame under the stage and screen name of Stepin Fetchit, sued the producers of a documentary which had Bill Cosby suggest that the character had damaged views of Blacks. There, the Seventh Circuit stated:

Perry contends that Cosby's statement was false in that he was neither lazy nor stupid, [and] that the characters he portrayed in the movies never shot craps or stole chickens.... The record shows that, first, Cosby did not say that Perry was lazy or stupid but that the characters he portrayed represented such a "tradition." Second, the commentary did not state that Perry shot craps or stole chickens...

Id. at. 799. In Feche v. Viacom Int’l, Inc., 233 A.D.2d 125 (N.Y. App. Div. 1996), where an MTV personality known as 'Kennedy’ called the plaintiffs "whores," the court found that the statement "was not 'of and concerning’ plaintiffs, and is therefore nonactionable as libel," because "[a]n average viewer would not, taking into account the context in which the remark was uttered, perceive that 'Kennedy’ was making a factual statement about plaintiffs, but rather was indulging in hyperbole and protected opinion about the fictional characters that plaintiffs were portraying." Id. (emphasis added).

However, in none of these cases can it possibly be contended that the "character" is as closely identified with the actual person as Hulk Hogan can claim to be. Indeed, in the very year that this case was decided, VH1 premiered its reality show, "Hogan Knows Best," identifying not only the wrestling star, but his entire family by the surname "Hogan." Although the children are really named Nicholas Allan Bollea and Brooke Ellen Bollea, the world knows them all as members of the Hogan family. Surely, therefore, the type of injury that is intended to be addressed by the law of defamation, particularly damage to standing in the community, is even greater when a defamer slanders "Hulk Hogan" than when the same commentary is announced towards the obscure persona of "Terry Gene Bollea"!


All images used in this blog are from the Wikimedia Commons.

The Basis of an Opinion

Here's an interesting recent decision, Lassiter v. Lassiter (the 6th Circuit has chosen not to publish the case, so no citation will be forthcoming here). The core of the dispute lies in a book written and self-published by Sharlene Lassiter, a professor of law at Salmon P. Chase College of Law at Northern Kentucky University. Ms. Lassiter recounts the alleged tribulations of her marriage to Christo Lassiter. also a professor of law (but at the University of Cincinnati College of Law).

The allegations that led to a defamation action were of "ongoing mental cruelty and abuse by her husband throughout the marriage," that her husband "physically assaulted her on two occasions," and that he "committed adultery during the marriage." The court lays out a number of quotes from the book which set forth these allegations, for example Ms. Lassiter's comments that "My husband exploded with rage. He grabbed me and dragged me down two and a half flights of steps, leaving me in a heap on the floor," and that "For the next two days, I repeatedly asked God whether my husband was committing adultery, as I admitted that I might not have heard the Lord clearly. Each time the answer was the same. Yes, Sharlene, he is."

The trial court found that Ms. Lassiter was not a "media defendant" despite the self-publication of her book, described as a "single publication of very limited circulation" and that Mr. Lassiter was not a "public figure." No First Amendment protections were implicated, but the court nevertheless found a lack of defamation, and the appellate court agreed. Why?

With regard to the alleged physical abuse (of which two specific instances were reported), the court simply found Ms. Lassiter to be credible. That is, they felt that it was as likely as not that she was telling the truth. As for the adultery, this would be defamation per se if it was defamatory at all. Ms. Lassiter had no direct evidence for it, so she was basically expressing her opinion that it had happened. An unanchored expression of opinion - that someone is "cheap" or "a jerk" does not render the utterer susceptible to a defamation charge. However, an expression of opinion that a person has done a specific act - that someone is unfaithful to his spouse, for example - may reap such liability.

The court quotes the restatement of torts: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion." In short, if I say that my opinion about someone is that they are an unfaithful spouse, the listener may presume that I know something about that person that leads me to think this. In this case, however, the trial court found "that defendant arrived at the conclusion that the plaintiff had committed adultery on the basis of rumor and circumstantial evidence which was persuasive to her. The facts on which she based the conclusion were disclosed in the book." Emphasis in the original. In other words, there is no presumption about what Ms. Lassiter might know - she set out exactly what she did know. It might or might not have been enough to persuade the next person, but there is no implication that she possesses hidden knowledge that would prove the claim.

This is certainly a sound principle, since people ought to be able to express opinions if they have a reason to believe the truth of them, but such reasons should be available for the public to scrutinize, lest more substantial evidence be imagined than is known to the speaker. It is interesting, however, that one item of evidence which weighed on Ms. Lassiter's certainty was the result of her prayers to God - and God's purported answers. Since the origin of thought, people have claimed to have received communications from higher powers, and it often seems that these communications have an uncanny knack for confirming what the receiver believes (or would like to believe) is the truth. It would be an odd legal world if any person could make a potentially defamatory statement of opinion against another, and be relieved of liability by asserting that the whole basis of this opinion was that "God said so."

Iran picks up China's tactic - sort of

The government of Iran is now threatening to sue Western nations for libel, because of the bad press it is receiving. See Iran threatens to sue Western nations. This is somewhat different than my recent posts on Chinese people suing for defamation of "the Chinese people," but would fail (in the U.S., at least) for the same reasons.

More to come.