Brett Favre was known on the football field as a gunslinger who had made some impressive plays in his day. It’s that image of the Hall of Fame quarterback that came to mind when I saw that he had filed defamation lawsuits against three people who made comments about him in connection with a massive welfare fraud scandal in Mississippi.
It could be the legal equivalent of a Hail Mary pass.
On Thursday, Favre filed separate defamation lawsuits against Mississippi’s state auditor, Shad White, and sports commentators Shannon Sharpe and Pat McAfee. Favre has not been criminally charged in the case and has denied any wrongdoing. Five of the six people charged have pleaded guilty.
Favre’s status as a public figure means he has an even greater burden than a regular person attempting to prove defamation.
In his lawsuit against White, Favre accuses the state auditor of “shamelessly and falsely attacking Favre’s good name” to gain national media attention and advance his career.
In another lawsuit, Favre alleged that Sharpe, who co-hosts a talk show on Fox Sports 1, defamed him by saying on the show that Favre was a “sorry mofo to steal from the lowest of the low” and that Favre “stole money from people that really needed that money.”
In his lawsuit against McAfee, Favre said the podcast host had called him a “thief” who was “stealing from poor people in Mississippi.”
While these statements can certainly sound incendiary, the potential problem for Favre is that, if they’re true, then that can provide a defense against his lawsuits. To be clear, I’m not weighing in on whether the statements are true, but if they are, then Favre would be risking drawing further attention to a subject about which he might later prefer, in retrospect, to have avoided emphasizing. On Thursday, a spokesperson for Mississippi’s Office of the State Auditor issued a statement suggesting a potential truth defense: “Everything Auditor White has said about this case is true and is backed by years of audit work by the professionals at the Office of the State Auditor. It’s mind-boggling that Mr. Favre wants to have a trial about that question.” Further litigation, of course, can bear out which side is correct. On top of that, Favre’s status as a public figure means he has an even greater burden than a regular person attempting to prove defamation. He needs to show “actual malice” — that is, not only that the statements were false, but also that they were made with knowledge of their falsity or with reckless disregard for whether they were true or false. That’s not to say that even if the defendants win, their defense will have been free — whether in time or money or both. According to Reporters Committee for Freedom of the Press, Mississippi does not have a law that would provide a quick way to dismiss meritless lawsuits, known as SLAPP (Strategic Lawsuits Against Public Participation). But in any event, I’ll be interested to see if Favre can succeed here, if his definition of success is winning on the merits of his claims.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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