## Facts

- Phillip Busch appeared in a televised weight-loss testimonial segment praising Pat Robertson’s dietary shake and attributing substantial weight loss to the product.
- A satirical television program aired a comedic segment criticizing Robertson and the shake, including a brief clip of Busch’s testimonial as part of the satire.
- The broadcast did not identify Busch by name and did not otherwise focus commentary on Busch personally.
- Busch sued the program’s corporate owner, alleging the satirical use of his image and testimonial conveyed a harmful false impression and damaged his reputation.
- The case was removed to federal court; the individual host was dismissed for lack of personal jurisdiction.
- The corporate defendant moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

## Issues

1. Whether the broadcast contained a false, defamatory statement of fact “of and concerning” Busch sufficient to plead defamation under Texas law.
2. Whether a reasonable viewer would interpret the satirical segment as asserting actual facts about Busch, rather than nonactionable satire or opinion.
3. Whether Busch adequately alleged reputational injury flowing from a believable false factual assertion.

## Decision

- The court granted the corporate defendant’s Rule 12(b)(6) motion and dismissed the complaint for failure to state a claim.
- The court found no pleaded actionable false statement of fact about Busch and no content reasonably understood as stating facts about him.
- The court held that, in context, the segment was obvious satire directed at Robertson and the product, not a factual assertion about Busch.

## Legal Principles

- Defamation under Texas law requires a false, defamatory statement of fact concerning the plaintiff, publication, and resulting reputational injury.
- A statement must be “of and concerning” the plaintiff; mere inclusion of a person’s image in a broader commentary does not establish defamation absent a defamatory factual assertion about that person.
- Satire and parody are not actionable as defamation when a reasonable viewer would not interpret the content as stating actual facts about the plaintiff.
- A complaint may be dismissed under Rule 12(b)(6) when, even accepting the allegations as true, the pleaded facts do not amount to an actionable defamatory statement.

## Conclusion

The court dismissed Busch’s defamation claim because the satirical broadcast did not make an actionable false statement of fact about him and, viewed in context, would not be understood by a reasonable viewer as asserting literal facts concerning Busch.


Busch v. Viacom Int’l, Inc., 477 F. Supp. 2d 764 (N.D. Tex. 2007)