Media Attorney David Korzenik on South Park and First Amendment Protections for Parody

By Susanna Granieri

The hit animation series “South Park,” streamed by Paramount, started its 27th season in July, controversially mocking President Donald Trump by depicting him as being in a relationship with the devil.

The episode, titled “Sermon on the ‘Mount,” references various real-life scenarios, including the defunding of National Public Radio; bringing Christianity into public schools; an overuse of ChatGPT; community protests and scared news reporters; and President Trump’s inclination to file lawsuits.

The character of Jesus came to break bread with protesters, who were, according to a cartoon newscaster, “uniting in solidarity against what they call the president’s oppression.”

“Now just eat the bread and listen. I didn’t want to come back and be in the school, but I had to because it was part of a lawsuit and the agreement with Paramount,” Jesus said in a loud whisper, standing on a mound of dirt in the middle of the crowd. A confused protester asked “The president’s suing you?” 

“The guy can do whatever he wants now that someone backed down, OK?” Jesus replied. “You guys saw what happened to CBS? Yeah, well, guess who owns CBS? Paramount! You really want to end up like Colbert? … Just shut up or we’re going to get canceled you idiots.”

The season was released soon after Paramount settled with Trump for $16 million, following a defamation lawsuit the president filed against “60 Minutes,” claiming the editing of an interview with his Democratic rival then-Vice President Kamala Harris was deceptive. Bob Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, told Politico the lawsuit was “frivolous,” and “all [the settlement] really shows is that sometimes, a bully can get his way.”

The settlement occurred while Paramount was simultaneously seeking the Trump administration’s approval for a merger with Skydance Media — which closed successfully in early August. The settlement was described by Stephen Colbert as a “big fat bribe,” whose “Late Show” was canceled shortly after by Paramount-owned CBS.

The creators of South Park, Trey Parker and Matt Stone, signed a $1.5 billion, five-year contract with Paramount Global just a day before releasing its first episode of the season.

In the season’s second episode, main character Eric Cartman became a right-wing podcaster resembling right-wing activist Charlie Kirk. Cartman was featured as a “master debater” against “woke” college students. He has Kirk’s hairstyle and attended an event where “The Charlie Kirk Award for Young Master Debaters” was awarded to his rival. But last week, Kirk was assassinated on a Utah university campus, prompting Comedy Central to pull the episode from its schedule. Some Kirk supporters have reportedly blamed the franchise for his assassination on social media.

South Park episodes are satirical in nature, protecting it from any legal action that could be taken by the president.

Photo courtesy of David Korzenik.

First Amendment Watch spoke with David Korzenik, media law attorney and former adjunct professor at The Benjamin N. Cardozo School of Law at Yeshiva University in New York City. Korzenik discussed the First Amendment protections that are applied to satirical content; explained why a lawsuit against “South Park” by President Trump would likely be unsuccessful; and argued why those who criticize the president should be immune from defamation lawsuits he might file against them.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: If President Trump filed a defamation lawsuit, he would have to successfully prove that the South Park creators acted with “actual malice.” But would “actual malice” apply to political satire? Could a defamation suit be successful?

Korzenik: I don’t see how he could successfully sue them. Anybody can sue anybody for anything, and they do in this country, more and more, since the country has become incredibly unhinged. But that doesn’t mean it’s a deserving or appropriate lawsuit. It [would be] a SLAPP [Strategic Lawsuit Against Public Participation] suit. The truth of the matter is it’s offensive and insulting, and therefore you don’t even get to actual malice, because it’s clearly a straight-out, non-actionable opinion. And if anyone were to try to claim that this suggests that he actually had sexual relations with the devil, that’s nuts. That’s not a factual assertion. And no reader thinks that that’s the case. It’s a straight out insult, and insults are protected. They’re protected because they are not factual. It’s possible that some insults could be, but not this, not a cartoon, not one involving the devil.

There could be ways in which you could frame a cartoon to make it a factual assertion, but I don’t see that this is anything close to that. So you don’t even get to actual malice, because actual malice would only come into play if something were a factual assertion. They’re just saying he’s a bad guy, and not only is he close to the devil, but he has sex with the devil. There are people who actually maybe think that there is a real devil, or that he has a direct relationship with Satan, but that’s not what reasonable, like-minded people think.

FAW: In Hustler Magazine v. Falwell (1988), the Supreme Court found that public figures must show “actual malice” to successfully prove a claim of intentional infliction of emotional distress. How might this precedent apply to South Park’s defense if President Trump were to file a lawsuit against its creators?

Korzenik: Well, if he did, he would have to assert that it was a factual assertion, and then he would also have to plead in his complaint that they published it with a high degree of awareness of its probable falsehood. So he would have to identify what the factual assertion was in this cartoon, and then he would have to have some kind of factual pleading that would show that they knew that that was not true. And often libel cases that require allegation of actual malice, require that it be pleaded with more than just conclusory kind of assertions. He couldn’t just say, “They published this knowing that it was false, or with a high degree of awareness of its probable falsehood,” or that they subjectively believed it to be false. And he would have had to identify what the factual assertion was. Obviously nobody thinks, no reader thinks, that he slept with the devil. No reader would see that cartoon and think that that was so. I don’t think this case would ever get that far beyond possibly just a failure of the pleading to effectively plead all of the elements of libel, which would include actual malice. So I don’t even know what that complaint would look like, but that complaint probably would fail on a whole lot of levels, including an actual malice pleading. I wouldn’t put it past them to try to say that, but I would think there’s a high probability that actual malice couldn’t be effectively pleaded in a way that would survive a motion to dismiss under Iqbal or any of the pleading requirement standards.

FAW: Why is it important for South Park to maintain its First Amendment right to create political satire? What would satirical cartoons like South Park, Family Guy, or other similar television parodies look like without this protection?

Korzenik: Keep in mind that part of their protection is not really purely constitutional. In other words, if you were thinking that perhaps New York Times v. Sullivan was somehow undone by this Supreme Court, I don’t think it would have any significant bearing on parody. The reason that parody is protected is largely due to the fact that it is understood by the reader not to be an assertion of fact, but to be an expression of humor and insult, perhaps, and therefore doesn’t project any factual assertion that it could be actionable. In all states, you can only sue for a false factual assertion. You cannot sue for an opinion. And so the Milkovich case is the way in which the First Amendment is understood to protect parody or opinion, and some state constitutions protect it even more powerfully, such as New York and several other states where opinion is given a much broader kind of interpretation. New York Times v. Sullivan isn’t really the bulwark that protects parody. It’s the fundamental requirement that no one can sue for defamation or for speech that is understood to be opinion and insult. It has some constitutional dimension, but not much, under Milkovich. It’s more a feature of what the common law of defamation requires, and in those states like New York that give a higher level of protection to opinion, parody would have a more powerful zone of protection there on a state constitutional level. It’s true that if someone were able to tease out some factual assertion that was contained within the parody — and that would be very hard to do in the case of the South Park cartoon — they would then have to identify that, focus on it, show that it was false and that the plaintiff understood that it was a factual assertion that they intended to make, and that they knew it to be false subjectively at the time that they published it. Now it’s true that no one necessarily thinks that it’s true, including the one who produces it or writes it, but the frontline defense of parody is always going to be the fact that it is opinion, that it’s not factual, that it’s an insult, that it’s crazy and that no reader reads it in any other way except to view it as insulting. So in other words, parody has a wide zone of protection. By the way, often when we think about parodies, that phrase is often most significant in the copyright and trademark zone, where they come into a fair use-type analysis, but parody is protected under fair use against copyright and other kinds of claims of that sort. But when you’re dealing with libel and intentional infliction of emotional distress, I think the front line of defense is opinion, not interpreted as fact by any objectively reasonable reader or viewer.

FAW: At the beginning of the episodes, a disclaimer states: “ALL CHARACTERS AND EVENTS IN THIS SHOW–EVEN THOSE BASED ON REAL PEOPLE–ARE ENTIRELY FICTIONAL. ALL CELEBRITY VOICES ARE IMPERSONATED…..POORLY.” Is a disclaimer like this necessary for satirical content? 

Korzenik: My view is it’s not necessary in most parodies, because the reader knows what it is right off. Disclaimers help a little bit, and it’s good to include them because juries and judges sometimes take them seriously. It depends upon how it’s written and what it’s addressed to, and it would really turn on those kinds of things. Disclaimers don’t guarantee protection, but they help, and they sort of drive against the assertion that a reader would consider the statement to be an assertion of fact or about anyone in particular.

FAW: President Trump has a history of filing defamation lawsuits that First Amendment scholars often describe as frivolous. What are your thoughts on the president’s filing of lawsuits?

Korzenik: A president, according to our Supreme Court, has immunities from different kinds of liability, including criminal liability. The recent immunity ruling by the Supreme Court accentuates and expands that zone of presidential immunity. And if that is the case, so as to deprive agencies and other government officials from any kind of offsetting power against this unitary immune executive, then the only countervailing force in the entire constitutional structure and firmament is the “press” — recognized under the press clause of the First Amendment. So my view is, if the Supreme Court is going to give this guy immunity against criminal action claims, along with privileges against civil claims, and all other kinds of immunities that public officials enjoy, then the press should have reciprocal immunity and privileges against libel suits by the President. The president shouldn’t be able to sue anyone who criticizes his conduct within the newly expanded and defined zone of Executive power or who criticizes his fitness for being president of the United States and who embodies that kind of Unitary Executive power himself. It is long established law that a government entity may not sue for defamation or recover for reputational harm. Under the new unitary executive theory that SCOTUS is now espousing, the president is the embodiment of the Executive branch and all power that it has. A defamation suit by the president is a suit by the governmental entity. It should be barred.

Keep in mind, New York Times v. Sullivan was a compromise, because there were those on the court at the time who were not as inclined to adopt the actual malice standard. Justice Black and Justice Douglas thought that a public official should not be able to sue for defamation at all. New York Times v. Sullivan was a compromise to get them on board and to get this intermediate course adopted by the court. It permitted libel actions by public officials and made such suits subject to certain burdens on such plaintiffs and protections for defendant speakers. It’s built on other kinds of traditional concepts in law. Reciprocal protections for speakers on public matters that the public officials already enjoyed if and when they were sued for their conduct. So the press should enjoy reciprocal immunity that the newly expanded Unitary Executive now enjoys. So SCOTUS can’t say that there’s some lack of original intent. But in any event, I think it’s something that needs to be explored. Look at what Justice Douglas had to say. Look at what Justice Black would have had to say about it. Look at the new constitutional immunities that the Supreme Court is now reading into the Constitution, and let’s give the press reciprocal protections against that type of expansion of power.

FAW: You mentioned that the press should be given “reciprocal protections against that type of expansion of power,” referring to the Supreme Court’s immunity ruling in favor of President Trump. What would those immunities for the press look like?

Korzenik: A straight prohibition of defamation suits by the Unitary Executive against any speaker who criticizes his exercise of his newly expanded zone of power and immunity. I’m building this argument on two things. First, the immunity decision in the Trump v. U.S., because that decision is the Supreme Court’s expansion of its views about the Unitary Article Two Executive and the scope of his powers, as they define it, and its expanded power. It’s quite remarkable power. I’m taking that definition of power that the Supreme Court sketched out as the invitation to examine the reciprocal power that critics of that use of power should be entitled to. The second thing that I’m relying on is the long accepted case law that a government agency cannot sue for defamation, it cannot recover for harm to its so-called reputation. It also is happening in the context of repeated threats by some of the Supreme Court justices to undo New York Times v. Sullivan. I don’t think that they can or will do it, because I don’t really think that there is any alternative to it, except to bar public officials from suing for libel ever when they’re criticized for what they’re doing as public officials, or when they’ve been criticized as to their fitness for their public office. There’s more power to that when you start to realize that Justice Douglas and Justice Black wanted, at the time that New York Times v. Sullivan was being considered, to ban any possible libel claim by a public official. That would have been interesting if that had happened. You got to realize that that was really the alternative to New York Times v. Sullivan, and it had power because it was driven by the specific text of the First Amendment, which was “Make no law abridging freedom of the press or freedom of speech.” And I’m also looking at another feature of the First Amendment, which is the press clause, which to some extent, though the word is there, has always been given similar protection to all speakers. But it could be that the press, when it’s understood in the First Amendment context to be an institution of democratic government, that it should have special protection when it’s criticizing the Article Two Unitary Executive. In other words, it’s not new law to say that a government entity can’t sue. And it’s not far from our case law to say that maybe total immunity is the only response, especially if you get rid of Sullivan, but even if you don’t.

In the UK, there was a case called Derbyshire County Council v. Times Newspapers Ltd, and it was a city council that sued The Times of London [“The Sunday Times”] for defamation in 1993. The High Court in London, then the House of Lords, said, “No go. Government entities cannot sue for reputational loss or for defamation.” They relied partly on British law, but also relied on U.S. law for that same principle. It was a Chicago Tribune case in which a U.S. court ruled that a government entity cannot sue for defamation. So you put together the rule that government entities can’t sue, and you put together the Unitary Executive declaration of the Supreme Court in the Trump immunity case, and you understand that in their eyes, he’s the embodiment of the Article Two power. If he sues, then the government is suing, and that’s prohibited. So in a certain sense, their ruling may put them and their Unitary Executive into the crosshairs of the accepted common law rule, First Amendment rule, that a government entity cannot sue for defamation.

FAW: How would adding those immunities be possible at a time when some Supreme Court justices seem poised to restrict Sullivan protections as written? 

Korzenik: The argument that I’m making doesn’t really rely on Sullivan. What I’m pushing for here doesn’t turn on New York Times v. Sullivan, except for an independent thought, which is the idea of reciprocal protection. In order to be an informed voter, in order to be a participant in governmental function, speakers and citizens deserve the very same reciprocal protections that the government officials already have. So basically, actual malice is simply a species of the same kinds of privileges that public officials have. 

FAW: How would your argument be implemented? By legislation? Does Congress have the power to restrict the President in that way?

Korzenik: I don’t think that it would be something that would be legislative. I’m really thinking more that it’s developed via constitutional case law relying on the door that the Supreme Court just opened, and the case law that already precludes the government lawsuits for defamation. It was Lord Acton who said, “Power tends to corrupt, and absolute power corrupts absolutely.” And if there’s any kind of separation of powers, any kind of offsetting powers that are needed, the press fits right into that. The press is recognized as one of the institutions that provides that kind of offsetting power, that kind of check and balance. That needs to be taken seriously, and the press clause, in a certain sense, is, in part, the recognition of the institution of the press as providing balanced power.