PHILADELPHIA (CN) - An attorney for Comcast, E! Entertainment and cable-TV funnyman Joel McHale on Thursday asked a state court judge to dismiss a lawsuit brought by a dwarf couple who claim they were defamed when "The Soup" used a photo of them to mock reality shows.
McHale's half-hour program catalogues some of the more outrageous things to happen on TV in a week with a dose of McHale's signature satire, and sometimes a howling Chihuahua. "The Soup" airs Friday nights on Comcast's E! network.
In one 2009 episode, the writers created a mock advertisement for a fictitious new reality show called "Fertile Little Tattooed Pageant Parents Who Enjoy Baking." As its long title suggests, "E!" was poking fun at the gimmicks of actual reality shows.
E! Online also posted a mock promo on its website, according to court documents. The host says: "Sure, we all like shows about happy dwarves, good cooking, bad tattoos and families that can't stop procreating, but who has time to watch all that programming?"
Luckily for viewers, The Learning Channel "has slammed all that crap into one big hot mess called 'Fertile Little Tattooed Pageant Parents Who Enjoy Baking,'"
the promo continues.
Cara and Gibson Reynolds, a dwarf couple from Collingswood, N.J., filed suit
, claiming that they were humiliated because the joke uses a picture of them in their front yard. The photo is doctored to show them surrounded by dozens of children, many of whom are sporting lingerie and flexing bulging, tattooed biceps.
The Reynolds say the original picture accompanied an Associated Press article
that examined the ethical questions surrounding "designer babies," whose genes are manipulated to match their parents' characteristics, such as deafness or dwarfism.
In deposition, a sales director for the AP testified
that E! never licensed the photo.
E!'s lawyer, Michael Berry with Levine Sullivan, asked Court of Common Pleas Judge Allan Tereshko to dismiss on Thursday.
The skit "may have been crass, may have been juvenile, may have been tasteless ... but it's not actionable under the law," he said.
And "the suggestion that someone is in a reality show is not defamatory in this day and age," the lawyer continued.
Berry likened E!'s joke to one that the Supreme Court upheld in Hustler Magazine v. Falwell
. In that case, the justices found a cartoon depicting fundamentalist preacher Jerry Falwell as incestuous to be farcical on its face, and determined that no reasonable person would see it as a factual statement about Falwell.
"The same is true here," Berry said. "E! has not broadcast actual facts about the plaintiff."
"This piece is pure fantasy," he said. "Whether you call it parody, comedy or just a bad joke, nobody would take this seriously about the Reynolds."
But the Reynolds' attorney, Herman Weinrich with Timoney Knox in Fort Washington, said the piece was quite serious to his clients.
"These people are not Jerry Falwell, and they're not public celebrities," he said. "We have a stark disagreement with the defendants as to the characterization of this item as a parody."
Weinrich said the bit implies that the Reynolds agreed to participate in a crude reality show and "that they make their living by exploiting their children."
E! never asked the Reynolds if they could use their image, and the Reynolds would not have consented if they were asked, Weinrich said.
The Reynolds "just want to live their private lives in New Jersey and raise their children."
The mere fact they they're dwarfs "shouldn't make them the object of ridicule, of scorn and contempt," Weinrich said.
He speculated that E! must have thought: "Well, this is a good photo of two little people, and it serves our purpose to promote our show."
So the channel lifted it, doctored it and "decided ... to portray these people as happy dwarfs that can't stop procreating."
For that type of outrageous conduct, "they should be answerable," Weinrich said. "They just want this case dismissed with no factual inquiry whatsoever."
"I think it's inappropriate," he added.
Weinrich asked that the defendants be directed to file an answer to his clients' complaint.
"The Reynolds should have their day in court," he said.
In March, Judge Tereshko terminated The Associated Press as a defendant.