Afroman Is The Free Speech Hero We Need

After Timothée Chalamet's beef with opera and ballet, the best relatively harmless recent story to divert us from more serious news has to be the triumph of Joseph Foreman, better known as Afroman, in his defense against a civil lawsuit. Readers unfamiliar with the tale could do worse than to watch Jordan Klepper's Daily Show segment on the case. For those of you who don't have the time to watch the video just linked, I'll start with a synopsis.

Afroman is best known for his 2000 hit song and music video Because I Got High (featuring Jay and Silent Bob of Clerks fame). In 2022, heavily armed officers in combat fatigues from the Sherriff's office of Adams County, Ohio raided and searched Afroman's home. They didn't find evidence of anything but they caused some damage and were caught on video surveillance in a number of unprofessional positions, including one officer who looked longingly at a lemon pound cake in Afroman's kitchen. Afroman, understandably upset about the invasion of his home, responded with a number of satirical music videos that incorporated his surveillance camera footage of various of the officers.

The videos include Will You Help Me Repair My Door?, Lemon Pound Cake, and Why You Disconnecting My Video Camera, in which Afroman accuses the officers of racism and corruption, while also making an obviously false-and-not-intended-to-be-taken-seriously claim about having had sex with the wife of Sergeant Randy Walters. ("Randy Walters private cop. I used to fuck his wife doggy style." The Daily Show segment includes a snippet of another video, Randy Walters Is a Son of a Bitch, in which Afroman sings "Randy Walters is a son of a bitch. That's why I fucked his wife and got filthy rich.")

Seven officers sued Afroman in state court, alleging that the videos were defamatory, subjected them to false light publicity, and appropriated their images for commercial purposes. The trial judge dismissed the commercial appropriation claim but permitted the other claims to go to trial. Last week, the jury returned a verdict for Afroman--and for freedom of speech--on all claims by all plaintiffs. That verdict is undoubtedly correct, but the case raises two interesting questions.

First, why there was even a trial? Why didn't the judge dismiss all the claims before trial? The Daily Show segment does a good job in a short time of demonstrating the absurdity of the defamation claims. It makes clear that Afroman was not seriously alleging that he had sex with the wife of Sergeant Waters, that Waters himself did not believe the allegation, and that no reasonable person could believe it to be true either. And that's enough to avoid civil liability for defamation. A statement that is clearly intended as a joke, opinion, or hyperbole simply can't be defamatory because a defamatory statement is a false statement that harms reputation, but a statement that is plainly not intended to be expressive of truth is necessarily not false. So far as the law is concerned, it does not have a propositional value.

The trial judge also should have dismissed the false light publicity claims. Consider the Supreme Court's 1988 decision in Hustler v. Falwell. Hustler magazine published a parody ad (of a then-popular series of ads) in which Jerry Falwell was portrayed as having lost his virginity "during a drunken incestuous rendezvous with his mother in an outhouse." Falwell sued Hustler, alleging intentional infliction of emotional distress (IIED). The Supreme Court unanimously disallowed liability. Chief Justice Rehnquist, speaking for the Court, explained that the same First Amendment doctrine that restricts liability for defamation also restricts liability for IIED claims based on speech about public figures.

To be sure, Hustler involved an IIED claim, but the key point of the case is that plaintiffs cannot evade the limits the First Amendment places on defamation liability by pleading other related causes of action. If that's true for IIED, it's equally true for false light publicity--as the Court said much earlier, in Time v. Hill in 1967.

Hustler involved Jerry Falwell, a public figure, whereas (at least prior to this case) Randy Walters was not a public figure. However, Walters was a public official, which makes Afroman's defense all the stronger. The Supreme Court in New York Times v. Sullivan held that the First Amendment imposes limits on defamation claims by public officials. Only later did the Court extend those limits to suits by public figures. The core of the doctrine is its application to public officials because the core of free speech is the right to criticize those who exercise power in the public's name. And Afroman's music videos plainly do just that.

Second, why did the plaintiffs bring this case? On cross-examination, the officer caught coveting the pound cake stated that he had suffered insofar as some people now call him "Pound Cake" and send him pound cakes. Needless to say, that has led to considerable mockery. Other officers appear to have suffered more serious consequences due to online trolls, etc., but even so, the principal impact of the lawsuit was the "Streisand effect," whereby the plaintiffs have called a whole lot more attention to Afroman's music videos than there would have been had they not sued. Perhaps that would have been a price they thought worth paying if they won a verdict and judgment, but given the odds that they would lose, gambling on a victory while ensuring certain widespread ridicule was an odd choice.

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Parties who offer free speech claims or defenses to vindicate constitutional rights are often quite unsavory. Hustler magazine is crudely misogynist. The protagonist in the leading case establishing the limits on incitement liability was a racist and antisemitic Klansman. Civil libertarians nonetheless support their causes because important principles are at stake. Important principles are at stake in Afroman's case as well, but one need not hold one's nose in supporting his cause. As NPR reported:

"I didn't win, America won," Afroman, 51, told reporters outside the court, dressed in his American flag-patterned suit, tie and aviators . . . . "America still has freedom of speech. It's still for the people, by the people."

The people hope you're right, Afroman, and we thank you.