Ponder the coincidence of a St. Louis jury awarding a former St. Louis player a shitload of money over this. Maybe it's just retaliation for a stinkin' Canuck buying McGwire's 70th. I don't even see the argument for the lawsuit, as no one is going to confuse a retired hockey player with a mob boss from a comic book, nor is it going to hinder his ability to profit from his own celebrity status. Although McFarlane does deserve a punching for trying to argue "free speech" in defense.
Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do...that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry...and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them - Thomas Jefferson,Virginia Statute of Religious Freedom --//-- Lunatic Fringe
There IS precedent in Twist filing the suit under grounds of libel, as all his lawyers would have to do would be establish that McFarlane knew of him (McFarlane is a huge sports fan, a fact attested to by his gigantic collection of sports crap) and that McFarlane used his name in a negative light. It's a lot more iffy legally than, say, printing in a newspaper that Tony Twist is a mob boss, but allegedly no less harmful.
I'd say it's a combination of arguments towards libel & profitting from his name, and all the lawyers would have to establish is that McFarlane had heard of him and thought the name sounded cool.
"Illusions, Michael. A trick is something a whore does for money...or candy!" - G.O.B. Bluth, Arrested Development
The first DC crossover for The New 52 has been announced and it's taking place in the Batman books, under the auspices of Scott Snyder, who's writing Batman, currently in the midst of a great "Court of Owls" storyline.