Why Did Carol Burnett Sue Over That?

Jean-Paul Jassy and the fight for free speech  

Published in 2008 Southern California Rising Stars — July 2008

Hardly anyone has a problem with it. Occasionally, someone tells me to please not do it. But Jean-Paul Jassy is the first person to heartily praise me for asking if I could tape-record my interview with him. He tells me that the asking is shrewd, considering recent legal issues with California journalists over surreptitiously recording subjects.

And so I hurry to flip on the tape recorder, already behind the always-racing Jassy, who has become one of the top First Amendment and media attorneys in the Southland despite being in practice for less than a decade.

By age 27, Jassy was teaching constitutional law at USC. By age 30, he appeared before the U.S. Supreme Court. And this year, at age 32, he became a founding partner in a litigation boutique, Bostwick & Jassy LLP, with marquee clients like Fox and NBC. (He's now 33.)

He represented Fox in a suit brought by comedian Carol Burnett against the animated program Family Guy.  In one episode, called "Peterotica," Burnett's cleaning-woman character was shown mopping the floor in a porn shop. The scene switched to a cartoon character, declaring, "You know, when she tugged her ear at the end of that show, she was really saying goodnight to her mom."  Another character responded, "I wonder what she tugged to say goodnight to her dad," finishing with a comic's exclamation: "Oh!"

"To my knowledge, it is one of only two cases in American history to dismiss a copyright claim on the fair use grounds at the motion-to-dismiss stage," Jassy says.

Still, a layman can't help wondering, "Why the hell did Carol Burnett—who did some sharp parodies in her time—sue over that?"

"From a personal standpoint, I had much the same reaction," Jassy replies. He explains, though, that from a legal perspective, Burnett sued not for defamation, but for infringement of copyright and right of publicity. Jassy sees this as one of the growing attempts to get around California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, which provides extra protection in free-speech cases.

Jassy recalls one case in which a doctor sued a reporter who secretly recorded their consultation. The recording led to a news segment called "Caught in the Act," asserting the doctor illegally prescribed a controlled substance. Jassy says the doctor, trying to avoid the anti-SLAPP statute, sued not over the content of the newscast, but for the reporter's illegally recording a "confidential communication." Jassy defended the TV station—they prevailed—and talks of the importance of investigative reporting and its "profound importance" to the public interest.

"My mother was a photojournalist for the Associated Press," he says. "Free speech is the backbone of society and it's scary when it's taken for granted." He says he increasingly sees a judicial "creep" in favor of prior restraint that is a cause for concern.

For example, he recalls a defamation case involving a South Los Angeles fishmonger named Ulysses Tory. Tory retained Johnnie Cochran, but after Cochran dropped him as a client he picketed his office with placards that read "Johnnie is a crook, a liar and a thief." Cochran sued for libel and invasion of privacy.

"I was shocked when I read the ruling that basically prevented Tory and his common-law wife from ever saying anything about Johnnie Cochran," Jassy says. "It was clearly an issue of prior restraint."

In an unpublished opinion, the California Court of Appeal ruled that the injunction ordering Tory to never again display a sign or speak about Cochran was constitutional. For the appeal, Jassy sat second chair to constitutional scholar Erwin Chemerinsky in the only defamation case brought before the U.S. Supreme Court since 1991. Jassy is no stranger to Chemerinsky: he was a student of his at USC. Jassy, says Chemerinsky, "is exceptionally creative in developing legal arguments. He is also a gifted writer."

They succeeded in getting the injunction overturned.

At the end of the interview, Jassy asks if the magazine lets subjects review the story before it's published. When I tell him no, he surprises me by saying: "Good."

Good?

"That's what I tell my media clients to say, too," he says.

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