The U.S. Court of Appeals for the Fifth Circuit held a hearing Tuesday on whether to reverse a federal judge’s dismissal of retired NFL quarterback Brett Favre’s defamation lawsuit against sports talk show host Shannon Sharpe and reinstate the case.
Last October, U.S. District Judge Keith Starrett tossed Favre’s lawsuit on grounds that nothing Sharpe said amounted to defamation, which concerns untrue and reputation-damaging statements that are factual sounding rather than opinion. Starrett emphasized the First Amendment protects “rhetorical hyperbole” and “loose, figurative language” relating to matters of public concern.
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Favre objected to Sharpe, a fellow retired NFL player, telling listeners of Skip and Shannon: Undisputed that “Brett Favre is taking from the underserved,” “[Favre] stole money from people that really needed that money” and, “The problem that I have with this situation, you’ve got to be a sorry mofo to steal from the lowest of the low.”
Sharpe’s critique of Favre reflected media coverage of Favre’s connection to a high-profile scandal in Mississippi involving misuse of welfare funds. In 2022, the Mississippi Department of Human Services sued Favre and 37 others for unlawful payments, conspiracy and related accusations. Favre, who has not been charged with a crime and denies breaking any laws, allegedly conspired to arrange for $5 million in welfare funds to be used to build a volleyball stadium at his alma mater, the University of Southern Mississippi.
In his brief to the Fifth Circuit, Favre (through his attorneys) insists that a reasonable listener could have understood Sharpe saying Favre “stole money” was a factual—not opinion— assertion. For that reason, Favre maintains the statement is “actionable defamation” rather than “rhetorical hyperbole.”
To bolster that point, Favre stresses Sharpe uttered the statement during what Favre terms “a serious segment” of Sharpe’s show with Skip Bayless. Favre further maintains Sharpe’s accusation ought to be viewed as factual since Sharpe allegedly made it seem like he was “stating facts” in the mold of a news reporter instead of a lively and perhaps exaggerative host.
Sharpe sees the situation differently. Through his attorneys, Sharpe’s brief to the Fifth Circuit maintains his words were “transparently hyperbolic and figurative” rather than accusations of actual crimes. The brief describes how courts have held non-literal uses of “steal”, “take” and “blackmail” are non-defamatory in public discourse when describing questionable conduct instead of criminal acts.
Sharpe notes that even when TV host Geraldo Rivera called someone an “accomplice to murder”, the U.S. Court of Appeals for the Eleventh Circuit held the statement was non-defamatory. Rivera, the court reasoned, was engaged in rhetorical hyperbole that expressed his “belief that [plaintiff] shared in the moral culpability for [an individual’s] death.” Rivera was not accusing the plaintiff of committing a felony. To that point, the brief underscores how Sharpe “is not an attorney, prosecutor, or legal analyst” but instead a “colorful sports personality.”
The Fifth Circuit panel for Favre v. Sharpe consists of Judges Leslie Southwick, Kyle Duncan and Jeremy Kernodle (as a disclosure, I was a colleague of Southwick in the mid-2000s when we both taught at Mississippi College School of Law). The panel will issue a ruling in the months ahead.
Favre v. Sharpe has significant implications for sports talk show hosts when they comment on legal matters. The more factual sounding their commentary, the more probable the commentary could be portrayed as defamatory so long as it is false and harmful to the subject’s reputation. Public figures have the added hurdle in defamation cases of establishing “actual malice,” meaning the statement at issue is not only false and hurtful but was made with knowledge of its falsity or with reckless disregard as to whether it was true or false.
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