Sued for defamation? Try going with the "ditzy defense"

Just so everyone is clear: No, microwaves do not zap the nutrition out of food. But that assertion in the movie”American Hustle” has spawned a defamation lawsuit, and, in turn, what has been referred to as “the ditzy defense.”

The microwave that sparked a lawsuit

In the 2013 film a character played by Jennifer Lawrence, named Roslyn, asserts to her husband Irving, played by Christian Bale, that microwaves suck the nutrition out of food. After he tells her in the film that her statements regarding microwaves are “bullsh**,” she counters by citing an article she read by Paul Brodeur. From that brief exchange a $1 million defamation lawsuit was born, and the most recent development was interesting because it brought into question the so-called “ditzy defense,” a term coined by the plaintiff’s lawyer.

Why did the conversation in American Hustle lead to a defamation lawsuit? Because Brodeur is a real person, and though he wrote about the potential dangers of microwaves and electromagnetic fields, he never wrote that microwaves, which Roslyn calls “science-ovens” in the film, zap away nutrition.

In fact, when he was asked by People Magazine if microwaved foods pose any danger to people in 1978, he responded, “None that is known.” The science writer has claimed that the exchange between Bale and Lawrence’s characters in the film was prominent enough to cause him harm, and thus, filed a defamation lawsuit. Producers of the film filed a motion to strike based on California’s anti-SLAPP law, which is meant to protect against frivolous First Amendment lawsuit. Though the anti-SLAPP was recently struck down, it is not immediately evident whether it was because the producers’ “ditzy defense” had no basis.

A failed motion and a ‘ditzy defense’

Under the Anti-SLAPP law, the defendants will have to prove that the exchange between Roslyn and Irving in the film furthers the producers’ free speech on a matter of public interest. If it does not, then a second point must be proven. The defendants were given a good chance to win out on this aspect of the Anti-SLAPP motion, and since people likely don’t care about what Brodeur had to say about microwaves in the 1970s, his reputation probably wasn’t damaged much by the claim that so-called “science ovens” kill the nutrition in food. Though the motion was ultimately unsuccessful, as mentioned above, it’s not yet clear why.

This brings us to the second prong of the Anti-SLAPP motion, and the one concerning the “ditzy defense.” In filing the Anti-SLAPP motion, the defendants’ lawyer, Louis Petrich, wrote in a brief that the Roslyn character can’t be trusted by the audience.

“Reasonable persons would recognize that they are watching a ‘screwball comedy’ in which nothing the Roslyn character says can be taken as fact,” he argued.

In the movie, Lawrence’s character is not intelligent by any means, and many of the things she exclaims can be reduced to “bullsh**,” which is why Roslyn has been characterized as ditzy. She doesn’t seem to able to retain or properly process much information at all, so how is the audience supposed to believe what Lawrence’s character says is true? At least, that’s what the defendants have asked. Whether or not anyone believes Roslyn’s assertion on microwaves was actually written by Brodeur is important because “American Hustle” is a unique blend of fact and fiction with the idiosyncratic disclaimer: “Some of this actually happened.”

The burden is on the audience to choose whether or not to believe what Roslyn says in the movie falls under the category of “Some of this” or whether it fits-in better with the film’s made-up parts. The idea that a character’s perceived intelligence and reliability can be enough to sink a plaintiff’s defamation case, however, did not sit well with Brodeur’s lawyer, who brought up some solid points in arguing against the “ditzy defense.”

If this sort of argument were to become precedent, then anyone who wanted to defame someone could produce a movie or television show, and simply have a “reasonably unreliable” character spout off falsities about the individual. For example, not a big fan of your mother-in-law? Make a movie about yourself and have your crazy cousin put together a list of everything you dislike about her, whether it’s true or not. You’ll be fine, you’ve got the “ditzy defense.” Friedman argued it’s not up to the defendants’ lawyer to decide how reliable the Roslyn character is – that responsibility, he explained, should fall with the jurors.

Reliability is up to the jury

It seems that the judge may agree with Friedman on this point, since the unreliable character argument is actually a fairly solid one, in that, according to Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17 (1990), language will not carry defamatory meaning when used in a context that shows it is not intended to be interpreted literally. For now, the lawsuit will continue with the failure of the Anti-SLAPP motion, but it remains to be seen whether the jury will ultimately decide that Roslyn is, in fact, just too ditzy to believe.

If the Anti-SLAPP motion was, in fact, struck down because of the producers’ “ditzy defense”, then defendants who would like to argue the unreliability of their characters in a defamation suit should leave the final determination of reliability up to the jurors. While how believable a character is in a piece of work is crucial to determining whether or not a statement was in fact defamation, it is ultimately up to the jury to make this decision, not the defense.