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Judge Dismisses Defamation Action by 'Hot Chicks' Pictured With 'Douchebags'
New Jersey Law Journal
February 12, 2009
A Bergen County, N.J., judge has poured cold water on a defamation suit by three women whose photos appeared in the book "Hot Chicks with Douchebags," finding the author's use of the pictures is protected First Amendment speech.
Libel cannot exist for material that is "susceptible of only a non-defamatory meaning and is clearly understood as being parody, satire, humor or fantasy," Superior Court Judge Menelaos Toskos said, granting summary judgment on Monday for most of the defendants in Gorzelany v. Simon & Schuster, Inc.
Yvette Gorzelany, Joanna Obiedzinski and Paulina Pakos sued over photographs taken of them clubbing at the Bliss Lounge in Clifton, N.J., which were included in the book, published by Simon Spotlight Entertertainment, a division of Simon & Schuster, last year.
The photos showed them with one or more men described as "douchebags" -- a sobriquet for males who dress and act ostentatiously in public. "Greasy foreheads. Spiky frosted hair. Oiled-up faces dripping with Tag Body Shot spray. Armani Exchange T-shirts and rank cologne wafting off their backs like fetid pollen clouds as they pump their fists and attempt to grind into any hotties nearby," says a brief description by author Jay Louis.
"Hot chicks" refers to "young beauties oblivious to the hulking monstrosity clutching at their butts like snapping turtles on Red Bull," says the author, who runs a Web site of the same name, www.hotchickswithdouchebags.com.
Gorzelany and Obiedzinski appear together in a photo with a man reclining across their laps. Pakos is depicted blowing a kiss at the camera, with a spiked-haired man draping his arm around her. The pictures were taken by Clubitup.com, a nightclub promotion company. The plaintiffs did not consent to the use of their photos nor were asked to give consent.
The plaintiffs are not mentioned by name, but they objected to their depiction as "females who date dubious men," according to the suit.
They alleged the publication had negative consequences. Obiedzinksi said she was turned down for a maitre'd job at the Westmount Country Club in West Paterson, N.J. Pakos claimed her boyfriend ended their relationship.
Pakos, an aspiring social worker studying at Ramapo College, and Obiedzinski, who is studying psychology and dietetics at Montclair State University, both fear their career prospects will be damaged by the book, they alleged.
The suit's named defendants were Louis, Simon & Schuster, Spotlight, Club Bliss and Clubitup.com. The complaint included counts of defamation, negligent inflection of emotional distress, conspiracy to commit fraud and invasion of privacy.
Louis, Simon & Schuster, Spotlight and Club Bliss, in lieu of filing answers, moved to dismiss the complaint on summary judgment, arguing the plaintiffs were not defamed. Clubitup.com did not file an answer or enter an appearance.
In a nine-page opinion, Judge Toskos dismissed the complaint with prejudice, concluding there was no actionable defamation because the photographs and the accompanying text are used for humorous social commentary. A reasonable person would conclude a book named "Hot Chicks With Douchebags" is meant to be satirical, and, while some would consider it vulgar, it is not an assertion of fact, he said.
Citing passages from the book as examples, Toskos said a reasonable person would not believe that "in 1981 archaeologist Renee Emile Bellaqua uncovered in a cave in Gali Israel a highly controversial Third Century religious scroll suggesting that the 'douchey/hotty' coupling was a troublesome facet in early social religious structures" or that "Jean-Paul Sartre stated 'man is condemned to be douchey because once thrown into the world he is responsible for every douchey thing that he does.'"
Since the plaintiffs are not named anywhere in the book and no captions describe either of the photographs in which they appear, no defamatory meaning can be imputed, Toskos said. "Failing as an assertion of fact, the book must be treated as protected expression of opinion. Consequently, it is absolutely privileged under the First Amendment," Toskos wrote.
The plaintiffs' claim for infliction of emotional distress was also dismissed because it lacked the requisite showing of falsity of allegations. The fraud claims were not sustainable because there was no falsehood or misrepresentation of an existing fact. And the invasion of privacy claim fell because the photos were taken in a public establishment. Even if they were private, the privacy claim is invalid because there was nothing offensive about the photos and a reasonable person would not find their production offensive, the judge said.
The plaintiffs' lawyer, Charles Ingenito of Festa & Ingenito in Hawthorne, N.J., did not return calls about the ruling.
Elizabeth McNamara of Davis Wright Tremaine in New York, who represented Simon & Schuster, Spotlight and Louis, and Steven Schechter, a solo in Fair Lawn, N.J., also did not respond to a reporter's phone messages.
