Pat McAfee files motion to dismiss Brett Favre’s defamation case

The fight has officially been joined.

In the lawsuit filed against Pat McAfee by Hall of Fame quarterback Brett Favre, McAfee has filed a motion to dismiss the case.

The 25-page memorandum in support of the motion to dismiss makes both substantive and procedural arguments. Four grounds for dismissal are stated — Favre's complaint does not cite false facts from McAfee, Favre's complaint does not allege that McAfee engaged in an “unprivileged publication” of false facts, Favre fails to properly allege that McAfee acted with “actual malice” (the key to to prove defamation of a public figure), and Favre did not give McAfee 10 days' notice before filing suit, as required by Mississippi law.

McAfee announced on Twitter that the request for rejection has been submitted. Sports and betting lawyer Daniel Wallach forwarded the relevant papers to PFT.

Although Favre's lawyers will have a chance to respond, McAfee's lawyers are making a compelling case.

First, when considering the whole context of things said on McAfee's show, there appears to be no false statement of fact. As McAfee's lawyers explain, Favre cherry-picks specific statements without presenting the full content of the conversation.

Second, when one considers the many statements contained in official documents generated by the legal proceedings in Mississippi regarding welfare funds allegedly embezzled, everything said about the situation appears to be privileged comment and opinion. Basically, there appears to be more than enough facts to support a fair and reasonable conclusion that Favre knowingly and knowingly attempted and/or successfully misappropriated public funds for his own purposes.

Third, and perhaps most importantly, McAfee's attorneys explain that Favre refers only cursorily to the notion that McAfee acted with “actual malice,” without identifying any specific facts showing how McAfee's statements were made “with knowledge of the falsity of the defamatory statements , or at least with reckless disregard of their falsity by deliberately avoiding the truth.”

Fourth, and finally, if Favre failed to give McAfee ten days' notice before filing suit, the case should apparently be dismissed on a technicality. It can then possibly be filed again after the defect has been cured.

Again, Favre will have a chance to respond to McAfee's motion to dismiss. But it's important to remember a couple of things when studying Favre's response.

One, the First Amendment is (or should be) very broad and very strong. Second, McAfee's show is not about reporting actual news.

It's comedy. He admits it. As for Favre, McAfee responded to the actual news about the Favre situation — actual news that supports a wide variety of jokes about Favre's behavior — in a comical and light-hearted manner.

At one point, McAfee specifically said that Favre “claims this is completely wrong.” Looking at the full transcript of the comments, it's clear that McAfee and his contributors were simply joking about the situation, allowing the possibility that Favre's denials could eventually be substantiated.

Favre might not have appreciated being the butt of the joke. But it's not the first time it's happened, thanks to the time Favre allegedly shared photos of something other than his butt.

Even if Favre is completely innocent, there is enough meat for people like McAfee to use it in an attempt to tickle the listener's funny bone. That's all McAfee did. That's what he does.

In my opinion, Favre should hope the case is dismissed. McAfee has the resources to support an aggressive discovery phase that will possibly (keyword – possibly) prove that Favre did it, which will possibly (keyword – possibly) delve into other issues that Favre would prefer not to discuss (such as the one referenced above the situation) involves an associate, a camera and a couple of alligators) – and that McAfee's lawyers will possibly (keyword – possibly) entice Favre to fail to tell the truth, the whole truth and nothing but the truth while testifying under oath in a deposition or at trial.

The whole thing, as McAfee says, is really “ba-na-na-s.” Favre's best play, in my opinion, would have been to keep his head down and his mouth shut and hope it would all blow over and go away. This lawsuit, if not dismissed, will give McAfee the opportunity and incentive to prove that the welfare fund's allegations against Favre are possibly (keyword – possibly) entirely true.

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