"Douchebags" Book Suits Face Protection for Opinion

Two lawsuits involving the book “Hot Chicks with Douchebags” raise the novel question of whether calling someone a “douchebag” is a defamatory statement of fact or a mere vulgarity that cannot be proved true or false.

“Hot Chicks with Douchebags” started out as a website with the noble mission of posting photos of “hot chicks with total and complete douchebags” accompanied by caustic commentary. The print version was published by Simon & Schuster in July.

In a complaint filed last week in Las Vegas, a club promoter alleges that Simon & Schuster and author Jay Louis defamed him by depicting him as a “douchebag” in the book. Louis wrote of Michael Minelli, 27, that his “popped-collar, spikey-haired presence was so far beyond regular douche, so far beyond uberdouche, he could spontaneously create a new element on the periodic tables -- Douche Nine.”

Since the book's publication, Minelli protests, he “has been, and continues to be, the subject of ridicule in that he has been, is now and continues to be called a Douchebag by friends, acquaintances, coworkers, employers and strangers alike.”

The suit follows hard on the heels of a guilt-by-douchebag-association case filed Oct. 14 by three New Jersey women identified as “hot chicks” in the book. Yvette Gorzelany, Joanna Obiedzinski and Paulina Pakos were all photographed with men at a Clifton, N.J., nightclub in June 2007.

“[T]he authors depict these Plaintiffs as females who date dubious men,” says their complaint, which alleges infliction of emotional distress, invasion of privacy and defamation.

A Simon & Schuster lawyer responded to an earlier demand letter from the Jersey girls' attorney by saying that the use of their pictures was non-commercial, they could not establish falsity and the statements in the book are “constitutionally protected opinion.”

The distinction in defamation law between “statement of fact” and “opinionative insult” certainly seems to weigh against the plaintiffs in both cases. “The law provides no redress for harsh name-calling,” the 9th U.S. Circuit Court of Appeals said in a Nevada libel case filed by former Bill Clinton paramour Gennifer Flowers. Flowers v. Carville, 310 F.3d 1118 (2002).

In a case that is particularly on point, a California appeals court allowed no redress to two candidates for political office who were included in a website's list of “Top Ten Dumb Asses,” finding the challenged statement that they were “dumb asses” did not convey “a provably false factual assertion.”

The “overall tone” of the website, the court noted in Vogel v. Felice, 127 Cal.App.4th 1006 (2005), “was one of puerile vituperation and wretchedly excessive tastelessness” and the “ostensible author of the list ... is himself presented as a 'dumb ass' ...”

Calling someone a “douchebag” is no more provably false than “dumb ass” and Louis -- whose book, like his website, does not pretend to be anything other than tasteless -- presents himself as “douchebag1, your humble guide into the dark cultural trainwreck of hottie/douchey commingling.”

As far as the Jersey girls, moreover, any damage they may have suffered from being publicly associated with douchebags could presumably have been mitigated by their public identification as “hot chicks.”

By Matthew Heller
11/19/08