In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.
He’s a real estate investor who plasters his name on properties from Manhattan to the Vegas strip. He appears regularly in the New York tabloids and has a network television show. He opines freely on matters political and otherwise, made a run at the GOP presidential nomination and is quoted by fringe elements for his widely discredited theorizing about President Obama’s birthplace and academic record. Donald Trump, though, has shown no sense of humor and has turned tortious over comedian Bill Maher’s broadcast comments about his parentage. He’s now put this monkey business into the courts in a case ripe for consideration in Contracts 101:
Trump’s lawyers filed a lawsuit (online documents courtesy of CNN) after Maher appeared on The Tonight Show with Jay Leno and said that, perhaps, “Donald Trump had been the spawn of his mother having sex with an orangutan.” The comedian offered to donate $5 million to the charity of Trump’s choice if he could provide proof to the contrary, a jesting reference to the real estate baron’s offer in the presidential season to donate $5 million to a charity of President Obama’s choice if the Illinois Democrat released his college transcripts and provided his birth certificate.
Trump fired back, saying he found Maher’s comments disrespectful to both his parents, especially his mother who was a beautiful woman. Trump accepted Maher’s challenge in writing and provided his birth certificate. Trump’s lawyer, Scott Balber of Cooley LLP, argues a contract was formed when his client mailed his acceptance to Maher, creating an obligation for the comedian to pay up that $5 million to charity. Trump’s suit asserts that an objective observer would understand Maher’s offer as genuine. And Trump contends that Maher made false statements on the Tonight Show, falsely and recklessly accusing Trump of being a racist and lying about a potential political appearance on Maher’s talk show.
Hmm, at this point doesn’t every legal practitioner experience a Paper Chase flashback to imperious Prof. Kingsfield giving a stadium-sized classroom full of 1Ls the stink-eye while grilling them on offers, acceptances and considerations — oh, and, of course, that dime to call mom to tell her you’re not becoming a lawyer?
So how might a Trump case proceed in the Golden State: Every contract requires mutual assent or consent pursuant to CA Civil Code §1550 and §1565. The essence of mutual assent manifests when one party communicates an offer and the other party communicates acceptance. As the Supreme Court of California stated in City of Moorpark v. Moorpark Unified School District, “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”
So if Trump does not provide evidence establishing a manifestation of assent to the “same thing” by both parties, then there is no mutual consent to contract. Thus, no contract was formed. An objective standard must be used to determine whether a particular communication operates as an offer. Here, the question is whether Trump had reason to believe that Maher intended to communicate an offer?
In his complaint, Trump points out that that the comedian hosted the political talk show Politically Incorrect with Bill Maher from 1993-2002 and now hosts a similar program Real Time with Bill Maher. Both of which, he argues, are not considered a “comedy broadcast,” due to their discussions of political, social and policy issues with guests that include journalists, politicians and government officials. While Maher’s HBO show takes on political issues, however, it’s difficult to deny its significant comedic component.
As the Daily Show with John Stewart and The Colbert Report with Stephen Colbert demonstrate, political satire is a hot broadcast commodity, attaining cult popularity by mixing contemporary political commentary with wry or downright sophomoric comedic appearances, interviews and sketches. Maher, notably, has done standup comedy since the late ’70s and was ranked 38th on Comedy Central’s 100 greatest comedian lists in 2005. Should that be a clue to Trump that Maher’s Tonight Show comments — and listen to both Leno and the audience laughing loudly — were gags?
If this case makes it to trial, a judge or jury will take these facts into consideration to determine if Maher’s conduct and words about Trump manifested intent to enter into a contract or whether he was engaged in political satire during a comedic appearance on the late-night talk show.
If a judge or jurors found that Maher’s conduct was meant to be comedic, then it would be unreasonable for Trump to believe an offer was communicated and his written acceptance would not form a contract.
Reasonable doesn’t, however, on its face seem to be a term applicable to a satirist nor a celebrity: