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La Russa and Twitter can't agree on agreeing

This article first appeared in the St. Louis Beacon, June 3, 2009 - Even though several news sources reported that Cards manager Tony La Russa had settled his suit against Twitter over fake posts using his name and picture  AP , Twitter says it ain't so, Joe. According to a blog post (not a tweet - too long), "Twitter has not settled, nor do we plan to settle or pay."

Cards manager Tony La Russa apparently doesn't like all birds. He filed suit last month against Twitter claiming that the burgeoning social network caused him emotional distress by hosting a site that contained "derogatory and demeaning" postings on a page falsely claiming that "Tony La Russa is using Twitter."

The suit prompted Twitter to take down the offending site, but a local lawyer says the suit also raises interesting First Amendment questions. Might even an offensive site such as this one be protected as a parody in the way that the U.S. Supreme Court protected Hustler magazine's parody of the Rev. Jerry Falwell having sex with his mother in an outhouse?

Peter Salsich III, a lawyer at Husch Blackwell Sanders, said that Twitter or the anonymous poster might have a Hustler parody defense but that the courts have not clarified whether the defense applies to all of the legal claims that La Russa is making against Twitter. Salsich represented the comic book creator who was successfully sued by former St. Louis Blues' hockey enforcer Tony Twist. Salsich's client had created a Mafia don patterned after Twist.

The La Russa Twitter page seems to have had the parody defense in mind. Next to a picture of La Russa and the heading, "Hey there! Tony La Russa is using Twitter," it has in small type, "Bio Parodies are fun for everyone."

La Russa, who notoriously has sharp elbows, wasn't having fun. He objected to what followed: "Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher. ... I'd call that an I-55 series....drinking a cold Zima and wishing f...ing Hancock was alive, I bet he could've gotten Jack Wilson out."

The references were to La Russa's drunk driving arrest during spring training of 2007 and to the death of Cards pitcher Josh Hancock in a drunk driving accident.

La Russa claims in his lawsuit that his name is so "famous" in baseball and animal protection circles that it amounts to a trademark and that the Twitter page infringes upon the trademark and dilutes its value. Salsich said courts seldom are willing to consider names as trademarks, unless they have become synonymous with a product. So this is a tenuous claim by La Russa.

La Russa also claims that the Twitter page invades his privacy and caused him emotional distress. Falwell made the same claims in the Hustler Magazine v. Falwell case in 1988. Chief Justice William H. Rehnquist, writing for a unanimous court, cited the long history of parody in political cartoons in holding that even this offensive parody was protected by the First Amendment because it obviously was not meant to be a serious allegation.

Salsich said that readers of the La Russa Twitter would conclude immediately that La Russa had not written the tweets. "If no reasonable person could believe this was actually La Russa saying these things, then he hasn't met his claim," Salsich said.

"Probably no one would believe this was La Russa, so the words on the page may be a parody, even if it is a mean-spirited one."

But La Russa might have a case under a separate claim for misappropriation of his name and likeness. This is often called the "right of publicity." It essentially means that each person has the right to use his or her image to make money. Anyone infringing on this right, is violating the right of publicity.

Twist won on the right of publicity, but one reason was that the Missouri Supreme Court adopted a relatively forgiving test for him to meet. Salsich said that law review articles have suggested that Twist probably wouldn't have won in other states.

California where the La Russa case was filed, does not allow a celebrity to collect where the use of the celebrity's image was used in a "transformative" fashion. Salsich said the Twitter page's use of the La Russa photo might not have been transformative enough. The Twitter page could point to the words as transformative but might have been better off using a more transformative image of La Russa, such as one with "an evil grin and Joker kind of smile," he said.

Salsich said that even if the Twitter poster has a Hustler parody argument and can claim that the use of the image and identity was transformative, La Russa still may have a claim under the federal "cybersquatting" statute, a law cited in the La Russa suit. La Russa maintains that the Twitter page is an attempt to "divert the public" from his websites and to make money on its alternative and deceptive site.

Twitter and the anonymous poster could claim, however, that they aren't making money off of the site, Salsich said.

One defense that may be available to Twitter on some of the claims is the Section 230 "safe harbor" of the Communications Decency Act that protects Internet sites like Twitter from legal liability for postings by third parties. That defense would not be available to the anonymous poster.

La Russa's California lawyer did not return a call. Twitter has not commented.

More on cases

La Russa suit: Superior Court of California, San Francisco Docket (enter Case Number CGC09488101)

Hustler v. Falwell, click here . 

Citizen Law Media Project summary on the suit, click here .

Missouri Supreme Court decision in Tony Twist case, click here .

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.