In his last days in office, the president is testing a law recently passed in New York to protect the First Amendment from frivolous litigation.
Donald Trump has engineered no shortage of remarkable court filings, but one legal brief this week truly deserves the moniker of history — and it has nothing to do with changing the outcome of the 2020 election.
Instead, it pertains to the fact that on Nov. 10, New York Gov. Andrew Cuomo amended state law so that defendants hauled into court over their First Amendment-protected rights could escape litigation quickly. One of New York’s lawmakers who sponsored the bill spoke about the inspiration behind a tougher anti-SLAPP law: “It’s unacceptable that wealthy and powerful interests like Donald Trump have been able to abuse New York’s civil justice system by bringing meritless lawsuits against their critics with the intent of harassing, intimidating, and bankrupting them,” said State Sen. Brad Hoylman (D-Manhattan). “That ends today.”
What Cuomo, Hoylman, and others who have heard Trump promise over the years to “open up libel laws” probably never envisioned was how Trump himself would quickly seize upon New York’s anti-SLAPP law in an effort to extricate himself from a lawsuit. Trump might even be the very first individual to test New York’s brand-new law guarding the sanctity of free speech. Represented by Charles Harder, Trump is now standing up for the right to retweet a meme.
The meme in question comes from Logan Cook, who goes by the internet handle “CarpeDonktum.”
Cook found a video online of two toddlers — one white, one black — running together along a sidewalk. He then used it to create his own “breaking news” story. The caption read, “Terrified Todler [sic] Runs From Racist Baby,” then “Racist Baby Probably A Trump Voter,” then, “What actually happened.” The toddlers run at each other and embrace. Fade to black. Then this: “AMERICA IS NOT THE PROBLEM…FAKE NEWS IS. IF YOU SEE SOMETHING, SAY SOMETHING. ONLY YOU CAN PREVENT FAKE NEWS DUMPSTER FIRES.”
On June 18, President Trump tweeted the video from his personal account. Thereafter, in a first for the social media service, Twitter labeled Trump’s tweet as “manipulated video.”
In September, the parents of the toddlers in the video filed suit against both Trump and Cook and alleged that the exploitation of the childrens’ image had violated New York privacy and publicity right law and was both an intentional and negligent infliction of emotional distress.
So now comes Trump’s anti-SLAPP motion, which also frames the legal action as a “political lawsuit” as the plaintiffs and their lawyers are “all registered Democrats, and several of them have made large donations to the 2020 U.S. presidential campaign of Vice President Joe Biden, as well as other Democratic Party elected officials.”
Putting that aside, Trump’s main contention is that the lawsuit aims to suppress his free speech rights “by seeking to punish them for doing nothing more than re-posting and re-tweeting a parody meme with a political message.”
“The First Amendment allows others to create parody memes of footage that Plaintiffs themselves published,” writes Harder. “With respect to Defendants, the First Amendment allows them to re-post and re-tweet that same Parody Meme. The First Amendment prohibits lawsuits like this one which seek to stop a person (or entity) from exercising his (or its) right to forward such content in [sic] the internet to others. Indeed, political and parody tweets are re-posted and re-tweeted millions of times per day on Twitter, Facebook and various other platforms. To hold that a person or entity who re-posts or re-tweets such content is not protected free speech, and instead is a legal violation, would literally open the floodgates to countless millions of lawsuits, and in the process shut down modern free speech and free expression as we know it.”
The legal brief cites some famous First Amendment cases including the Supreme Court’s opinion in Hustler Magazine, Inc. v. Falwell, which protected a parody advertisement depicting Jerry Falwell as having a “drunken incestuous relationship with his mother in an outhouse” as his “first time.” Trump wants similar treatment as Hustler got, saying a meme is a “modern day version of a satirical cartoon or caricature.”
Harder also argues that the plaintiffs’ claims came too late (since Cook had first posted his meme more than a year ago, never mind how it was arguably republished by Trump in his tweet) and can’t survive dismissal since the image of the kids wasn’t for “commercial” purpose as required by New York’s publicity right statute (which itself was recently amended).
Plus, it’s argued that CarpeDonktum’s creation was newsworthy and artistic.
“The fact that the Parody Meme depicts small children does not change the First Amendment calculus,” states the motion. “Much political speech in our country features children. Politicians kiss babies at political events, discuss the effect of their policies on children, and feature children in their advertisements. It would significantly chill or abridge important First Amendment rights to create a new exception to the First Amendment for political speech involving children especially where, as here, the footage of the children that was used was voluntarily placed into the public domain by the children’s parents or guardians.”
Trump doesn’t go so far as to invoke Section 230 of the Communications Decency Act, even though his most hated law has been argued to protect retweets. Instead, he attempts to use New York’s anti-SLAPP law to end the case quickly on First Amendment grounds. In fact, Trump’s final days in office will be spent looking to expand the zone of permissible speech. Notably, in one of the Stormy Daniels cases, Trump is due on Monday to tell the U.S. Supreme Court about why it’s OK for federal judges to use state SLAPP laws. That’s an entirely separate discussion that’s dripping with irony. Stay tuned.