In the Woodpile: Sticks and stones

There once was a young man from Lyme
Who couldn’t get his limericks to rhyme
When asked “Why Not”
It was said that he thought
They probably were too long and badly structured and not at all very funny.
—Anonymous

By Shawn Wood
Seyfarth Shaw

If the pun is the lowest form of comedy, the limerick never rated much higher.

Sure, in its raunchiest form, the limerick has been favored among college rugby players and entertainers in Irish pubs, but if you’re sober and going for anything beyond a polite chuckle, the limerick generally involves more effort than it’s worth.

The Illinois Appellate Court for the Second District recently addressed what a limerick may be worth, in J. Maki Construction Co. v. Chicago Regional Council of Carpenters, 2008 WL 305043 (2d Dist. Feb. 1, 2008). There, the bad poetry of a carpenter’s union resulted in a defamation lawsuit and a $2.3 million jury verdict.

In Maki, the defendant had distributed flyers containing this little gem:

There once was a man named Maki,

Who didn’t want you to know his houses were crappy.

‘If my homebuyer has windows that leak,

they won’t take a peek,

and see the whole house is crappy.’

So said a man named Maki.

From a wit and wisdom standpoint, the limerick wasn’t exactly Whitey O’Day territory. Given all the words that rhyme with Maki (tacky, wacky, George Pataki), the defendant went with “crappy,” which only rhymes in an Eminem-freestylin’ type of way.

Also, if you’re going to hand out flyers to insult someone, couldn’t you offer something more inspired than a limerick that rhymes “crappy” with “crappy?” The author seemed to attend the same poetry school as Robbie Krieger from the Doors (whom I’ve always pictured sitting in his basement, guitar on his lap, coming up with the lyric: “Come on baby light my fire, try to set the night on … hmm, what rhymes with fire? How about … fire?”).

Maki Construction Company claimed in its lawsuit that the limerick constituted defamation per se, because it imputed that Maki was unable to perform competent construction services. Maki also argued that the use of quotes, and the ending line (”so said a man named Maki”) suggested that Maki had labeled its own workmanship as “crappy.”

A Lake County jury found in favor of Maki and awarded $2.3 million in damages. The trial court denied the defendant’s motion for JNOV, rejecting an attempt to invoke the innocent construction rule (ah yes, that “innocent” use of the word “crappy”).

On appeal, the defendants maintained that the limerick contained non-actionable opinion. The Second District agreed. Finding the lure of poetic verse too much to resist, the court started its opinion with a rhyme of its own:

There once was a union that called plaintiff’s work ‘crappy’

This made plaintiffs quite unhappy;

At trial, the jury filled plaintiff’s purse;

But, alas, on appeal, we must reverse.

Is it just me, or did your mind flash to the dialogue between Inigo Montoya and Fezzik in The Princess Bride? (”You have a great gift for rhyme.” “Yes, yes, some of the time.”)

Turning to the issue presented, the Maki court held: “[w]e must now delve into the meaning of the word ‘crappy’ - a dirty job for any court. Using the factors described, we cannot say as a matter of law that ‘crappy,’ as it is used here, implies anything other than non-actionable opinion.”

While this outcome was disappointing to employers who have sought legal protection from heavy-handed campaign tactics, the appellate court’s decision suggests a degree of judicial eye-rolling at having to confront the legal implications of such a juvenile insult.

And the court’s holding falls in line with many entertaining cases where harsh language has been held non-actionable.

For example, in Todd Layne Cleaners LLC v. Maloney, 2007 WL 3022036 (2007), a New York court recognized the constitutional right to say that someone “sucks.” (”The words may be discourteous and even vexatious, but do not constitute libel or slander, because [the defendant’s opinion] is afforded constitutional protection.”)

In Dilworth v. Dudley, 75 F.2d 307, 310 (7th Cir. 1996), the 7th Circuit held that being called a “crank” was not actionable. In reaching its holding, Judge Posner provided a sort of “greatest hits” listing of epithets that have been held incapable of constituting defamation “because they are mere hyperbole rather than falsifiable assertions of discreditable fact” (including “fake,” “phony,” “scab,” and “lazy, stupid, crap-shooting, chicken-stealing idiot”).

Of course, an odd paradox emerges where defendants who engaged in more subtle commentary may become mired in drawn-out litigation, while those who pop off with the most harsh or profane insults can argue “mere hyperbole” to secure a quick dismissal.

But that’s an issue for a different day.

For now, we should all just enjoy our new freedom to throw around the term “crappy” without legal consequence.

And the defendants in Maki, who dodged a $2.3 million bullet, might want to avoid further stabs at bad poetry.