Pat McAfee Answers Brett Favre’s Lawsuit With First Amendment
Calling Brett Favre’s defamation lawsuit against him “meritless” and a ruse to both “deflect attention away” from Favre’s legal troubles and to “silence media,” Pat McAfee wants the case tossed.
On April 28, attorneys for McAfee filed a 30-page motion to dismiss in Mississippi’s federal district court.
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The attorneys, who describe McAfee as a “comedic sports analyst and broadcaster,” argue he was within his First Amendment free speech rights when he said on The Pat McAfee Show that Favre “tied the hands of the poor people and took money right out of their pockets” and is “certainly in the middle of stealing from poor people in Mississippi right now.” He was likewise protected by free speech when tweeting that Philadelphia Eagles wide receiver DeVonta Smith was doing “The Favre” when Smith kiddingly put his hands into a Salvation Army basket.
McAfee’s attorneys stress that Favre has been sued by the Mississippi Department of Human Services for his alleged involvement in a scheme to divert welfare money to “pet projects,” including those for his company and alma mater, the University of Southern Mississippi, for the construction of a volleyball facility that Favre pledged to fund. Favre’s alleged involvement, the attorneys note, “has been the subject of intense public scrutiny and media attention for nearly three years.”
As his attorneys see it, McAfee’s comments only touched on “matters of public concern” that are the “subject of official proceedings.” Allowing the suit against McAfee to go forward over those comments would, they insist, “risk chilling the exercise of First Amendment-protected speech.”
McAfee’s attorneys also emphasize that while on his show, the retired Indianapolis Colts punter acts as the host of a “comedic sports media broadcast.” The show, the motion to dismiss argues, is “known for its energetic, comical, unfiltered, and unconventional reporting on sports and pop-culture” and blends NFL analysis with “humorous subjects.” People who listen are often taking a “mental reprieve while at home, their jobs, in class, or battling life’s more serious challenges.”
That description goes to a key element of McAfee’s defense: His comments about Favre should not be viewed as actual news reporting. They are instead, allegedly, a reflection of McAfee’s comedy and hyperbole. A statement of opinion, such as a joke, is not grounds for a viable defamation claim since defamation is the assertion of a factual or objective claim that is untrue and reputationally harmful.
But in his lawsuit, Favre paints a more serious picture of McAfee, quoting McAfee as saying “our job is to report the news,” “we owe the sports media world our coverage of it,” and “we take our job seriously as journalists.” Favre hopes the court sees McAfee as a narrator of real-world events who has said untrue and hurtful comments about him.
McAfee’s attorneys also underscore that Favre has not plead “actual malice” which, they claim, he can’t show. As a public figure, Favre must prove McAfee not only made false and hurtful statements but did so with knowledge that the statements were false or with reckless disregard as to whether they were true or false. Favre tries to mitigate the need for actual malice by arguing that McAfee’s remarks were so egregious they qualify as defamation per se, which, if established, would relieve Favre of having to prove damages.
In addition to suing McAfee, Favre has filed defamation lawsuits against retired NFL player Shannon Sharpe, who co-hosts Skip and Shannon: Undisputed on Fox Sports 1 with Skip Bayless, and Mississippi Auditor Shad White.
