On Vox Day, John Scalzi, and the Definition of Parody

Last week, the controversial Vox Day released the book SJWs Always Lie: Taking Down the Thought Police. I haven't read it, and do not intend to. But my understanding is that it is intended to be an exposé of how Social Justice Warriors, or SJWs, deploy Alinsky-like tactics to denigrate and destroy people with opposing views.

Here is an excerpt from the blurb:

The book is named after the First Law of SJW: SJWs always lie. SJWS ALWAYS LIE is a useful guide to understanding, anticipating, and surviving SJW attacks from the perspective of a man who has not only survived, but thrived, after experiencing multiple attempts by Social Justice Warriors to disqualify, discredit, and disemploy him in the same manner they have successfully attacked Nobel Laureates, technology CEOs, broadcasters, sports commentators, school principals, and policemen. It analyzes well-known SJW attacks as well as the two most successful examples of resistance to the SJW Narrative, #GamerGate and Sad Puppies.

Then, Alexandra Erin, published the parody 'John Scalzi Is Not A Very Popular Author And I Myself Am Quite Popular: How SJWs Always Lie About Our Comparative Popularity Levels' under the pseudonym Theo Pratt.  John Scalzi himself then offered to read an audio version of the book if his fans would raise money for a charity he supports, which they did.

Now, one of Vox Day's fans has written another parody: 'John Scalzi Is A Rapist: Why SJWs Always Lie In Bed Waiting For His Gentle Touch; A Pretty, Pretty Girl Dreams of Her Beloved One While Pondering Gender Identity, Social Justice, and Body Dysmorphia' under the name Alexa Eren. This struck me as being in very poor taste.  I also thought it might be legally actionable.

Scalzi evidently entertained the possibility that it was libel, tweeting the following to his followers:

Question for the legal scholars among you: Is this title parody? Or libel? http://t.co/bV6FPE2VrB

— John Scalzi (@scalzi) September 2, 2015

The answer, according to the blogger popehat, is that it is almost certainly satire. In a thoughtful post entitled "Satire vs. Potentially Defamatory Factual Statements: An Illustration" addressed specifically to Scalzi's question, popehat writes:

So: here is the short answer. The book title is almost certainly parody protected by the First Amendment, because an audience familiar with the circumstances would recognize it as parody and not as an assertion of fact.

... 

The Law

Only a statement of fact can be defamatory. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.)

How do you tell the difference? A court will look at the "totality of the circumstances" — that is, not just the statement in isolation, but all the facts and circumstances surrounding and leading to it. The court will also look at the statement in the context in which it was made, not in the abstract. Finally, the court will look at the statement from the perspective of the audience to which it was directed, taking that audience's knowledge and understanding into account. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-10.)

That's why satire and parody are protected even when directed at a fairly narrow audience. For instance, when the proprietors of WorldNetDaily sued Esquire for a parody suggesting they were withdrawing one of their birther tomes, Esquire won because the piece was viewed from the perspective of someone familiar with Esquire's history of satire and WorldNetDaily's history of nuttery, not from the perspective of a person encountering all these figures for the first time. Similarly, my post about the case is protected satire even though I made up excerpts from the D.C. Circuit opinion suggesting that WorldNetDaily staff routinely molests walruses.

Many other factors also contribute to determining whether something should be treated as hyperbole, insult, and satire or as a statement of fact. Those include the tone (measured tones are more likely to be taken as fact, fiery and bombastic tones as opinion), anonymity (anonymous or pseudonymous statements are less likely to be treated as factual), the formality, the intelligibility, whether it is labeled as fact, whether the author suggests a basis for knowledge or evidence to support the statement, whether the statement is specific rather than general, and whether the statement is in the context of a dispute that one would expect to generate heated rhetoric. California courts have recognized that internet dwellers are less likely to view statements online as assertions of actual fact, especially when they are in a forum known for bloviating. That doesn't mean that everything on the internet is automatically opinion rather than fact: things on the internet can still be treated as fact when they contain factors like assertions of lack of bias, assertions of specialized knowledge, labeling as fact, specifics, signals of reliability and factual nature, etc. (Bentley Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 433.)

So. If someone wrote an article saying "Ken White's legal analysis should be disregarded because dresses up in a rubber suit on the weekend and hunts ponies with a handmade crossbow," and says it on their trash-talking blog, to an audience that knows them and knows about my blogging here, it's almost certainly parody, because the relevant audiences would be familiar with our in-joke about responding to spam emails with rants about ponies and would therefore not take it seriously.

The Facts Here

Here the factors point very strongly to the book being treated as parody, and protected by the First Amendment, rather than as a defamatory statement of fact. With all respect to Scalzi, his question is wrong: you can't analyze the book title in isolation. You have to look at it in the context of the whole. In that context, the intended audience (both fans of Beale and fans of Scalzi) would recognize it as a reference to Beale's tiresome meme. Plus, the Amazon description explicitly labels it as "a blazingly inventive parody," and the descriptive text is mostly nonsensical and evocative of ridicule of "SJW" concerns, and references some of the topics that anger Beale's coterie in connection with Scalzi like the Hugo Awards.

I think this one is protected parody, and I don't think it's a very close call.

You learn something new every day!

In any event, Scalzi reported the book to Amazon which took it down. Now he is getting called a "book banner" which sounds better to me than being called a rapist. Having said that, if the legal stance is that the book is clearly a parody then why wouldn't Amazon leave it up for sale? After all, as Vox Day points out, right now you can shop on Amazon for such gems as Rush Limbaugh Is a Big Fat Idiot and Other Observations by Al Franken.