The battle officially has been joined.
In the lawsuit filed against Pat McAfee by Hall of Fame quarterback Brett Favre, McAfee has filed a motion to dismiss the case.
The 25-page memorandum in support of the motion to dismiss makes arguments both substantive and procedural. Four reasons are given for dismissal — Favre’s complaint cites no false statement of fact made by McAfee, Favre’s complaint does not allege that McAfee engaged in an “unprivileged publication” of false facts, Favre fails to properly allege that McAfee acted with “actual malice” (the key to proving defamation of a public figure), and Favre did not give McAfee 10 days’ notice before suing, as required by Mississippi law.
McAfee announced on Twitter that the motion to dismiss has been filed. Sports and betting lawyer Daniel Wallach forwarded to PFT the relevant paperwork.
Although Favre’s lawyers will have a chance to respond, McAfee’s lawyers make a compelling argument.
First, when considering the full context of things said on McAfee’s show, there seems to be no remotely false statement of fact. As McAfee’s lawyers explain, Favre cherry picks specific statements without presenting the full content of the conversation.
Second, when considering the many statements contained in official documents generated by the legal processes in Mississippi regarding welfare funds that allegedly were misappropriated, anything said about the situation seems to be privileged commentary and opinion. Basically, there seems to be more than enough facts to support a fair and reasonable inference that Favre deliberately and knowingly attempted to and/or successfully misappropriated public funds for his own purposes.
Third, and perhaps most importantly, McAfee’s lawyers explain that Favre makes only cursory reference to the notion that McAfee acted with “actual malice,” without identifying any specific facts showing how McAfee’s statements were made “with knowledge of the falsity of the defamatory statements, or at a minimum with reckless disregard for their falsity by purposefully avoiding the truth.”
Fourth, and finally, if Favre failed to give McAfee 10 days’ notice before suing, the case apparently should be dismissed on technical grounds. It could then potentially be re-filed after the defect is cured.
Again, Favre will have a chance to respond to McAfee’s motion to dismiss. But it’s important to remember a couple of things when studying Favre’s reply.
One, the First Amendment is (or should be) very broad and very strong. Two, McAfee’s show isn’t about reporting actual news.
It’s comedy. He acknowledges it. As to Favre, McAfee reacted to the actual news regarding the Favre situation — actual news that supports a wide range of jokes regarding Favre’s behavior — in a comical and light-hearted way.
At one point, McAfee specifically said that Favre “is alleging that this is all wrong.” When looking at the full transcript of the comments made, it’s clear that McAfee and his contributors were simply poking fun at the situation, and that they allowed for the possibility that Favre’s denials would eventually be substantiated.
Favre might not have appreciated being the butt of the jokes. But it’s not the first time that has happened, thanks to the time when Favre allegedly shared photos of something other than his butt.
Even if Favre is completely innocent, there’s enough meat to allow people like McAfee to use it in an effort to tickle the listener’s funny bone. That’s all McAfee was doing. That’s what he does.
In my opinion, Favre should hope the case is dismissed. McAfee has the resources to support an aggressive discovery phase that possibly (key word — possibly) will prove Favre did it, that possibly (key word — possibly) will delve into other issues that Favre would prefer not discussing (like the above-referenced situation involving a coworker, a camera, and a pair of crocs) — and that McAfee’s lawyers possibly (key word — possibly) will bait Favre into failing to tell the truth, the whole truth, and nothing but the truth while testifying under oath in a deposition or at trial.
The whole thing, as McAfee says, really is “b-a-na-na-s.” Favre’s best play, in my opinion, would have been to keep his head low and his mouth shut and to hope for everything to blow over and go away. This lawsuit, if it isn’t dismissed, will give McAfee the opportunity and incentive to prove that the welfare-fund allegations against Favre possibly (key word — possibly) are entirely true.