The First Amendment is even for those embrace-debate sports shows you see on ESPN and Fox Sports 1. You know the ones. Guys yelling about why this coach should be fired and why that quarterback should be benched and why the Dallas Cowboys are the best (or worst, depending on the last game) team ever.
And while sometimes they say some ridiculous things, it’s good to know that the First Amendment is for them, too.
That was proven this week when a lawsuit by legendary football Hall of Fame quarterback Brett Favre against Hall of Fame tight end Shannon Sharpe was dismissed.
This all goes back to a rather serious topic: Favre’s alleged involvement in a Mississippi welfare fraud scandal. More than $77 million intended for the poor in Mississippi ended up on a variety of other projects, including a new volleyball facility at the University of Southern Mississippi, where Favre’s daughter was playing at the time. Favre also was involved in other parts of the story, although he has yet to be charged with a crime.
Back when he was on the “Undisputed” show with Skip Bayless on FS1, Sharpe said things such as Favre “stole money from people that really needed that money.”
Favre sued, claiming he didn’t “steal” money from anyone. But a federal judge dismissed the suit, saying Sharpe, who now works at ESPN, was just using “rhetorical hyperbole.”
U.S. District Judge Keith Starrett wrote in his 12-page ruling: “No reasonable person listening to the Broadcast would think that Favre actually went into the homes of poor people and took their money — that he committed the crime of theft/larceny against any particular poor person in Mississippi. Sharpe’s comments were made against the backdrop of longstanding media coverage of Favre’s role in the welfare scandal and the State’s lawsuit against Favre. Listeners would have recognized Sharpe’s statements as rhetorical hyperbole — robust language used to express Sharpe’s strong views about the new information that emerged about Favre’s participation in the welfare scandal.”
Starrett went on to write, “The context in which Sharpe’s remarks were made — including the tenor of the Broadcast as a whole, the format of the program and its audience, and the fact that viewers were told Favre was not charged with a crime — forecloses Favre’s claim that a reasonable viewer would have thought Sharpe was actually accusing him of committing ‘larceny.’ Because Sharpe’s comments are constitutionally protected rhetorical hyperbole using loose, figurative language, they cannot support a defamation claim as a matter of law.”
The ruling could not have been any more dismissive of Favre, doing just about everything shy of calling him a crybaby.
Favre also previously had sued podcaster Pat McAfee. Favre eventually dropped his suit, even though McAfee did not apologize or pay Favre any money.
So this all is good, right? First Amendment victories, yeah?
Well, not so fast, Deadspin’s Julie DiCaro writes. She wrote, “Because in taking on Sharpe, who is thought to be worth around $14 million, Favre took on someone who had the money to fight back against what seemed to be a lawsuit designed to infringe upon free speech. Same with McAfee. Once word got out about Favre suing McAfee and Sharpe, some outlets likely backed way off criticizing Favre, and I wouldn’t be surprised if some even scrapped stories entirely. At least one other reporter was threatened by Favre’s legal team, though not sued, for making similar comments about Favre on Twitter.”
DiCaro asks if Favre (as well as other suits filed by former Major League Baseball pitcher Trevor Bauer over allegations of sexual assault) are even meant to win in the court of law.
“But,” DiCaro wrote, “they are extremely effective in chilling free speech. That means people who might have otherwise negatively reported or commented on Favre and Bauer now refrain from doing so in order to avoid being sued. That’s bad for journalism, and bad for our country, which depends on an informed and educated electorate.”
