From today's decision by Judge Keith Starrett (S.D. Miss.) in Favre v. Sharpe:
This dispute in this case arises from statements made by Shannon Sharpe, an NFL Hall of Fame tight end and the co-host of a daily sports debate show, "Undisputed," about retired NFL Hall of Fame quarterback Brett Favre and his widely-reported involvement in a Mississippi welfare fraud scandal. Favre has sued Sharpe for defamation over certain statements, and Sharpe moves to dismiss on the bases that the statements Sharpe made are protected from liability on two grounds and that Favre failed to comply with Mississippi's retraction statute….
The factual backdrop of this lawsuit is one of the largest public fund fraud scandals in Mississippi history. In or around October 2021, the Mississippi Office of the State Auditor determined, based on an independent forensic audit commissioned by the Mississippi Department of Human Services, that more than $77 million dollars in federal Temporary Assistance for Needy Families ("TANF") funds had been diverted from their statutory purpose and spent illegally.
This welfare scandal has resulted in significant criminal charges. To date, six individuals have pled guilty to state or federal felonies, or both, related to their involvement in the scandal, including the former Executive Director of the Mississippi Department of Human Services, four executives of non-profit organizations that received and spent welfare funds, and a retired professional wrestler. While Favre has never been criminally charged, the State of Mississippi's Department of Human Services ("MDHS") filed a civil lawsuit against Favre and his company, Favre Enterprises, along with many others, seeking to recover the misspent welfare dollars.
According to the State's initial complaint, filed in May 2022, Favre personally received $1.1 million dollars in TANF funds for speaking engagements that he never performed. However, Favre had already repaid the money to the State. When MDHS amended its complaint in December 2022, it alleged that Favre had not repaid an additional $5 million in TANF funds "that he orchestrated [be paid] to satisfy his personal guarantee to fund construction of the volleyball facility" and that Favre knew these were "grant funds" via alleged discussions with others. {The volleyball facility was constructed at the University of Southern Mississippi ("USM"), where Favre is an alumnus and his daughter was a member of the volleyball team.} In short, MDHS alleged that Favre caused state welfare funds to be diverted from their statutory purpose of serving the needy and instead directed them toward building a volleyball facility for his daughter's college volleyball team.
The welfare scandal—and Favre's role in it—have generated substantial media attention. It is believed that Favre's involvement in the scandal first broke on February 27, 2020, in a Mississippi Today article, "Embattled welfare group paid $5 million for new USM volleyball center." Since then, a number of local and national news organizations have reported on the ongoing developments in the welfare scandal, including specifically Favre's involvement in it.
Of particular significance here, on September 13, 2022, Mississippi Today published a news article discussing a recent filing in the State's lawsuit that revealed numerous text messages relating to the funding of the USM volleyball facility between Favre and Nancy New, the former president of a non-profit which received and distributed TANF funds and who has since pled guilty to state and federal criminal charges related to her role in the welfare fraud scandal. The Mississippi Today article analyzed the recent court filing and concluded that the newly released texts "show that [Favre and others] worked together to channel at least $5 million of the state's welfare funds to build a new volleyball stadium at the University of Southern Mississippi, where Favre's daughter played the sport," and that "a separate $1.1 million welfare contract Favre received to promote the program—the subject of many national headlines—was simply a way to get more funding to the volleyball project." …
Sharpe's Remarks Challenged by Favre
Shannon Sharpe is a retired NFL Hall of Fame tight end who currently co-hosts a daily live sports talk show on cable television with sports personality Skip Bayless, titled Skip and Shannon: Undisputed ("Undisputed"). Sharpe and Bayless are the show's hosts, providing commentary regarding recent sporting events and sports-related news for two-and-a-half hours every morning. On the episode of Undisputed that aired the day following the Mississippi Today article (the "Broadcast"), the hosts discussed the welfare scandal. The segment opened with moderator Jennifer Hale briefly recapping the Mississippi Today news article from the day before, stating: "Yesterday, an investigation by Mississippi Today found that Brett Favre, along with the help of a former Mississippi Governor, obtained welfare funds to help build a new volleyball Center at the University of Southern Mississippi." The hosts then engage in a lively discussion about Favre, the scandal, and the civil lawsuit, all of which lasts approximately eleven minutes.
On February 9, 2023, Favre filed this lawsuit in Mississippi state court, and on March 20, 2023, Sharpe removed the case to this Court. Favre brings this action solely against Sharpe based on the following three statements made during the segment, as pled in the Complaint:
- "The problem that I have with this situation, you've got to be a sorry mofo to steal from the lowest of the low."
- "Brett Favre is taking from the underserved."
- "[Favre] stole money from people that really needed that money."
The court dismissed Favre's libel claim on the grounds that Sharpe's comments were, as a matter of law, "mere rhetorical hyperbole":
The dispositive question here is whether a reasonable factfinder could conclude that the statements Sharpe made on the air would imply an assertion that Favre actually stole money from the poor. Favre contends that these statements are assertions of fact that can be proven true or false—either Favre "took money" or "stole" from "poor people" or he did not. Favre asserts that the statements are false because he "did not steal, and has not been charged with stealing any money from anyone." Favre further argues that Sharpe's statements and the general tenor of the segment on his show did not negate the impression that Favre committed the crime of larceny—it created that impression.
However, the Court disagrees. In reaching this conclusion, the Court notes that the Broadcast expressly informed viewers that Favre had not been criminally charged. The Court has also, in light of case law, looked at these statements for the kind of language used and the context in which they were made and whether that would indicate to listeners that Sharpe was not purporting to state or imply an actual fact.
For example, in the Bresler case, the plaintiff Bresler contended that the speakers at a public meeting, in using the word 'blackmail,' and the newspaper publisher in reporting the use of that word in the newspaper articles, were charging Bresler with the crime of blackmail, and because the petitioners knew that Bresler had committed no such crime, they could be held liable for knowingly stating a falsehood. However, the Supreme Court stated:
It is simply impossible to believe that a reader who reached the word 'blackmail' in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense.
The court went on to find that the plaintiff could not recover in defamation for being accused of "blackmail" because "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable."
In Nat. Ass'n of Letter Carriers v. Austin, the plaintiffs were nonunion letter carriers who brought libel actions against local and national letter carriers' unions based on union publications labeling the plaintiffs as scabs and using the word "traitor." The Supreme Court found that plaintiffs could not recover in defamation under state law in light of federal labor law for being accused of being "traitor[s]" because it was "impossible to believe that any reader of the [newsletter] would have understood the newsletter to be charging the appellees with committing the criminal offense of treason." The Court found, that similar to the use of the word "blackmail" in Bresler, the use of the word traitor was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join."…
With this and similar case law in mind, the Court also acknowledges that from the reports in the public arena after government investigations, forensic audits, civil litigation, Favre's text messages, and Favre's own implicit admission by returning $1.1 million dollars to the State, it appears to be widely believed that the money obtained by Favre for himself and USM came from welfare funds. Although the funds may have come from the State of Mississippi, such TANF funds were intended to go to poverty-stricken families, not to fund the construction of a college volleyball facility. In that context, just as the Supreme Court has held that saying a negotiator engaged in "blackmail" or calling a non-union employee a "traitor" is constitutionally-protected rhetorical hyperbole and loose, figurative language, the Court finds that Sharpe's use of the words "steal," "taking," and "stole" in connection with Favre's actions is non-actionable speech.
Highly charged language must be viewed in its "broad context" to determine whether it would reasonably be construed in a literal sense. The reference to "taking" and "stole" figuratively refers to the diverting funds from the TANF for purposes other than helping the underprivileged. Similarly, Sharpe's use of the words "people that really needed that money," the "lowest of the low," and "the underserved," again are examples of protected, colorful speech referring to needy families in Mississippi.
Here, no reasonable person listening to the Broadcast would think that Favre actually went into the homes of poor people and took their money—that he committed the crime of theft/larceny against any particular poor person in Mississippi. Sharpe's comments were made against the backdrop of longstanding media coverage of Favre's role in the welfare scandal and the State's lawsuit against Favre. Listeners would have recognized Sharpe's statements as rhetorical hyperbole—robust language used to express Sharpe's strong views about the new information that emerged about Favre's participation in the welfare scandal. As any reasonable viewer can tell from watching the Broadcast, Undisputed is not a news outlet where viewers expect genuine initial reporting of events. It is a debate format sports entertainment talk show with lively, pointed banter, and Sharpe's comments are properly seen in that context as constitutionally-protected speech. Cf. Washington v. Smith (D.C. Cir. 1996) (sports "columnists frequently offer intemperate denunciations of coaches' play-calling or strategy, and readers know this and presumably take such railings with a grain of salt").
The context in which Sharpe's remarks were made—including the tenor of the Broadcast as a whole, the format of the program and its audience, and the fact that viewers were told Favre was not charged with a crime—forecloses Favre's claim that a reasonable viewer would have thought Sharpe was actually accusing him of committing "larceny." Because Sharpe's comments are constitutionally protected rhetorical hyperbole using loose, figurative language, they cannot support a defamation claim as a matter of law….
Sharpe is represented by D. Michael Hurst, Jr., James W. Shelson, Mark Fijman, and Mary Ellen Roy (Phelps Dunbar, LLP) and Joseph M. Terry (Williams & Connolly LLP).
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