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December 5, 2013 | Posted in Defamation, The Lighter Side of The Law | By

Jokes are a staple of late night comedy.  They can be vulgar, they can be rude and they can certainly get ratings.  However, when do these jokes cross the line into slander and thus defamation per se.  Jay Leno, from “The Tonight Show” certainly found out when he made a crude joke at the expense of  former American Airlines Flight Attendant, Louann Giambattista.

Mr. Leno’s segment aired shortly after the former flight attendant sued American Airlines for discrimination against her for an alleged mental disability.  This stemmed from a co-worker making a false claim that Ms. Giambattista carried pet rats in her pantyhose and underwear while on flightsABC News covered the story.

Naturally, any late night comedy show would jump on the opportunity to talk about live rats in women’s underwear.  Stating the facts, however, was just not enough for Mr. Leno, he took it a step further.

Among the Mr. Leno’s comments:

• “If I were one of those rats, I would’ve been very upset.  I prefer not to sit in cooch.”

• “I don’t understand this woman at all.  If she wanted something that creepy in her underwear, she should have hooked up with me.”

• Giambattista “coulda used what the rest of us ladies use … a Rabbit” (referring to the name of a popular vibrator).

This is where Jay may have crossed the line into Defamation Per Se, which is defined as:

A statement so egregious that it will always be considered defamatory (per se.)  These types of statements are assumed to harm the plaintiff’s reputation, without further need to prove that harm.  Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:

  • a criminal offense;
  • a loathsome disease;
  • matter incompatible with his business, trade, profession, or office; or
  • serious sexual misconduct.*******

Of course, bestiality is considered to be among the most depraves and serious acts of sexual misconduct.  As such, it is likely that Mr. Leno’s jokes will have some serious repercussions.  Although, it is doubtful that any punishment will be likely stop another crude joke in the future.