Protection for satire and parody
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.
Because liability for satire and parody hinges on a reasonable person’s belief about the truthfulness of the commentary, you would be wise to consider various factors that may help ensure that a reasonable person would recognize your material as protected ideas and opinion rather than actual facts that could be defamatory. The context of the entire publication is important, so no single factor included below is guaranteed to protect you from liability, nor is an inclusion of all of these suggestions necessary:
Use an unorthodox headline to alert readers from the beginning that the story is not straight news and use an irreverent tone throughout the piece;
Consider your web site’s history, or lack thereof, of publishing satire or parody. If you generally publish only financial reports, for example, you should be more careful than a blogger or other online content provider who regularly publishes stories like those in the Onion;
Choose carefully the parody’s location on the site, making sure to avoid posting it among several straight news stories;
Include in the story unbelievable or outrageous items, experts or groups with ridiculous names or silly acronyms and quotes that are incredible, illogical or over-the-top;
Substitute fictitious names that are close to or suggest real people for the names of actual people;
Publish the parody soon after the actual incident while it is still in the public’s mind and, if possible, explicitly refer to that event in your commentary on it; and
Post a disclaimer but keep in mind that it will not necessarily avoid liability, especially if it is written in small print at the end of an otherwise believable story.
Also keep in mind that satire and parody may implicate copyright concerns since the art forms must often take recognizable elements from the works on which they comment.