The Olney Community Baseball Team hopes to start a team in the local Cal Ripken Collegiate Baseball League next year. A search on Google doesn’t even turn up a website for the team yet, but that didn’t stop a local website specializing in satire from using the name of the organization as part of a joke.
And now, the team is demanding a retraction.
Last week, the Takoma Torch published a piece entitled “Olney Fans Website For MoCo’s New Baseball Team Crashes Due To Unusually High Traffic,” playing on how “Olney fans” sounds a lot like “Only Fans,” a website most associated with adult content.
The baseball group lawyered up: Over the weekend, the Takoma Torch posted a copy of a cease-and-desist letter they received demanding that the article come down and that all social media accounts mentioning the article be scrubbed.
First Amendment experts say the article was obvious satire and is constitutionally protected. But lawyers working for Olney Baseball say they’re not so sure everyone will understand this was satire.
“It may be obvious to you, and it may be obvious to me,” said Jeff Schwaber, a lawyer with Rockville-based Stein Sperling. “I can assure you … that is not obvious to everybody. It wasn’t obvious to everybody that is associated as part of the community that my client is looking to appeal to and to support.”
He added, “You can trumpet from the hilltop that it’s satire, but to ask every viewer to separate fact from fiction when there’s both fact and fiction in the story — there’s an opportunity for confusion and it’s unfortunate.”
Jennie Gross, a lawyer working on behalf of publisher Eric Saul and the Takoma Torch, strongly disagrees.
“Nobody can possibly believe that after having read this article — it’s clearly satire,” said Gross. “And for anybody who doesn’t have a sense of humor that can pick that up, it is labeled as satire. Not just that article but the website itself,” she said, pointing to the banner at the top of the page that identifies the Torch as “Takoma Park’s ONLY Humor Source.”
While she wants to ratchet down the tension and the attention this issue has gotten, she also said the Torch is getting bullied by someone who doesn’t have a case and that “there is no factual basis to bring any type of cease-and-desist action.”
“I can’t imagine there is any judge that wouldn’t immediately dismiss such a lawsuit,” Gross said.
For his part, Schwaber said he didn’t think the matter would actually go to court. And if a lawsuit is filed, one legal expert said, Gross and the Torch would likely prevail pretty quickly.
“It’s a garden-variety First Amendment case in the sense that — while the publication could have been a little clearer that it was satire — given it’s in a humor magazine, given everything else around it is clearly satire, you’re entitled to satire,” said Mark Graber, a regents professor at the University of Maryland Carey School of Law who has taught courses on the First Amendment.
“If you look at the web page, you look at the other articles surrounding it, it’s very clear the other articles are satire,” Graber added. “When it says ‘satire,’ that’s sufficient.”
After looking at the article, Graber didn’t necessarily find it any funnier than the people of Olney did. But he also says that doesn’t matter.
“Poor satire enjoys the same constitutional protection as good satire,” he said.
For now, Saul is selling T-shirts playing up the controversy, and says he’ll use the proceeds from the sale to cover any legal expenses he might incur. If the threatened lawsuit never materializes, he’ll donate the proceeds to the Olney Boys and Girls Club.
“I’ve thought, and think, that a lot of their response to a private legal dispute was clever,” Schwaber said. “And I know it’s increased their viewership.”
Gross said she’s reached out to Schwaber to settle this now before it gets any further out of hand. Graber says that might be the best outcome for everyone involved.
“This one is simply going to give lawyers some money and then be thrown out of court,” the law professor said.