Just How Demeaning Is It To Be A Lawyer? Just Ask The One Working For Meghan McCain.

Potentially, very.

Just ask Albin H. Gess of the Costa Mesa branch of the firm Snell & Wilmer. He's making stupid and meritless censorious threats on behalf of Meghan McCain.

Gess, or I, or most other lawyers could tell you that it is occasionally deeply revolting and embarrassing to be a lawyer, particularly at a big firm. Why? Well, because clients — especially clients with much money and influence — will sometimes demand that you do loathsome and humiliating things — sometimes thuggish and fundamentally un-American things. I'm not talking about illegal things, nor am I talking about grasping at any legal measure available to save a client from jail or penury. No, I'm talking about ugly, bumptious, and frivolous arguments, threats, and assertions on behalf of the client made to third parties. Then the lawyer is presented with a choice: do I do the right thing, and tell the client "no", and face the consequences, even if the consequences are the client firing me and my partners yelling at me as a result? And if I sigh and go along and do what the client wants, can I live with myself afterwards?

Part One: Red State's Parody of Meghan McCain

The issue arises because of the — and I beg you to pardon me for using this phrase — writing career of Meghan McCain. Meghan McCain is a person who is famous for no discernible or rational reason, like a Kardashian or a supernumerary Baldwin. Once elements of the media recognized that she was the perfect modern inexplicable celebrity — photogenic in a frequently crass way, talkative in a manner prone to attention-grabbing gaffes, and opinionated without being informed — they did their best to make money from her. They gave her columns and book deals. The result was predictable, resembling what would happen if you gave Jane Teasdale a political column and a sharp blow to the head. Observe Megan McCain's diction and deep thoughts:

When the initial buzz about Rick Perry started getting louder and louder this summer, I asked a friend of mine, who is a longtime veteran of Republican politics, what I should expect from the Texas governor who was trying to become our party's next nominee for president. The response was quick and to the point: “Rick Perry is George Bush on crack, just wait.” So far, I don't necessarily agree that Rick Perry is George Bush on crack, but he could definitely be described as George Bush 2.0. He is also a phenomenon that has quickly attracted intense interest and high poll numbers that continue to climb (he is currently, in most polls, the Republican frontrunner). All of it, I quite frankly do not understand. I feel like a character in “The Emperor’s New Clothes,” but instead of pointing out that the emperor isn’t wearing any clothes, I am pointing out that this person is in every way unelectable on a national scale.

"Column drafted with Kenner's 'I Can Write Good Too, Mommy!' Kit, Now Available At Local Retailers."

Now, go read some Hemingway or the back of a cereal box or something to get the taste out of your mouth. I'll wait.

I don't care about McCain's substantive positions, some of which I agree with to the extent I can bear to follow them; I care that they supported with insipid, execrably written drivel for which she has been handed prominent platforms.

Other people who disagree with Ms. McCain on a substantive level don't think much of her writing, either. That includes the people at Red State, who saw her writing as a challenge: how do you parody someone who writes like that? They made a very credible effort, offering columns by "Totally Meghan McCain" aping her, for want of a better term, style:

Firstly in the first place, some people had a question about my very obvious statement, “I don’t necessarily agree that Rick Perry is George Bush on crack, but he could definitely be described as George Bush 2.0.” The question, I have most often, been asked, is why I did not include literally anything in the piece to back up this claim or point out, the places where Perry and Bush are similar, the reason for that being simple. Hello? They are both from Texas. I guess I should apologize for, assuming that most people knew that already, but I guess they don’t. Well I am here to tell you in case you didn’t know: both George W. Bush and Rick Perry are from Texas. Now, in the entire time I have been paying attention to politics, there has only been one President of the United States elected from Texas. And if electing someone, from Texas was a winning strategy, then obviously, there would have been more.

Part Two: The Legal Threat

There are several ways to respond to being the subject of a parody. One is to laugh. One is to ignore it. One is to write an angry response, which is sort of sweet because it generally provides merriment to the people writing parodies of you. And then there's the way of the censorious, self-absorbed, ass who really doesn't have much respect for core Constitutional values: the subject of the parody can run all butthurt to a lawyer and demand that the lawyer write thuggish threats to the parodist. That's the STOP BEING MEAN OR I'LL SUE route.

Guess which one Meghan McCain did?

McCain ran to Snell & Wilmer lawyer Albin H. Gess and somehow convinced him to write a profoundly embarrassing threat to Red State. The gravamen of the threat is that even though the posts are on a site that is known for criticizing McCain, even though they are written by "Totally Meghan McCain," even though no rational person could possibly mistake them for a post by Meghan McCain, the posts put McCain in a "false light" and use her name for advertising and is therefore actionable under California law.

Gess' threat on behalf of McCain is thuggish and offensive to anyone who hates the use of money and power to achieve censorship. But more importantly, it is patently frivolous.

Part Three: Why The Legal Threat Is Frivolous

Gess has the miniscule self-respect and professionalism necessary not to claim defamation or intentional infliction of emotional distress, two favorite arrows in the quiver of any champion of the professionally offended. Rather, he cites two theories that are somewhat more obscure: the notion that the posts put McCain in a false light, and the notion that the posts violated McCain's "right to publicity" under California law.

Both theories are, to speak plainly, knowing and intentional bullshit.

It's true that California law — specifically, Civil Code Section 3344 — prevents you from using the name and likeness of someone else to sell products without their permission. That's why I can't sell "Albin Gess Brand Stationery: Perfect For Your Angry, Righteous, But Oddly Disingenuous Letter," unless Albin says it's cool. Does that mean you can't write, and sell, parodies of public figures? Of course it doesn't. That's why Matt Damon can't sue the writers and producers of "Team America: World Police" for making money by poking fun of him. In fact, the California Supreme Court has repeatedly and explicitly said that the right of publicity under Section 3344 is not a license for censorship:

The right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope. The necessary implication of this observation is that the right of publicity is essentially an economic right. What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity’s fame through the merchandising of the ‘name, voice, signature, photograph, or likeness’ of the celebrity. (Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (2001).)

So what's the difference between parody and misappropriation? The difference is whether the artist or commentator does something transformative — something creative — with the objecting person's name and image. For instance, in Comedy III Productions, the California Supreme Court found that a three stooges T-shirt was not transformative because it simply depicted the Stooges for a profit. Contrast that with (Winter v. D.C. Comics, 30 Cal.4th 881 (2003), where the same Court found that a Jonah Hex comic was clearly transformative when it depicted unpleasant versions of the plaintiff singers. Both times, the court noted that commercial uses are less likely to be protected than artistic uses. But that does not mean that the artist can't advertise or make money. Rather, it means that the celebrity's name and likeness — as opposed to comment upon or transformation of that name and likeness — can't be the thing for sale. The Winter court observed:

On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity. As has been observed, works of parody or other distortions of the celebrity figure are not, from the celebrity fan's viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect.

In other words, Stooge fans might have bought the Stooge shirt in Comedy III, but no Winter Brothers fan was going to buy a Jonah Hex comic book to see their favorite musician transformed into a hideous creatures. The artist was not competing for the same customer.

Here, Red State might have advertising, but that doesn't mean that it was trading on Meghan McCain's name and likeness. To the contrary, they were trading on their ruthless, clever, and very transformative parody of McCain's awful writing. That Red State makes money from advertising is immaterial. As the Court said, "[i]f the challenged work is transformative, the way it is advertised cannot somehow make it nontransformative."

This is not a close call.

Gess' false light argument is frivolous for much the same reason. "False light" is not a magical incantation by which a censor can avoid the normal rules applicable to parody. Those rules are well-established — under the First Amendment, parody cannot be actionable if it cannot reasonably be understood as depicting actual facts or events. California courts have imposed strict First Amendment limits on the false light doctrine, rejecting false light claims aimed at censoring clear parody. So has the Ninth Circuit, finding that the First Amendment test is the same for "false light" attacks on parody as it is for defamation: the work cannot be actionable unless a reasonable person would understand it to be describing true facts.

So. To prevail on a false light theory, Gess would have to establish that a reasonable person would believe the posts on Red State were actually written by Meghan McCain, even though they are on a site notorious for reviling her, even though they are captioned as by "Totally Meghan McCain," even though the comments all refer to the post as parody, and even though the posts are like this:

In the first point, Known and Unknown is, to belaboring a point, very long. It is much, much longer than the youth of today will be willing to take in their hands and read. It is almost as long as this review of my book (have I mentioned that I wrote a book? I say this so, that you will know that I am an authority on this subject and, not so that you will think I am bragging because bragging is not what I am about. Like my education at Colombia, I hardly ever mention that I went to, a prestigious college, like Colombia, because I am sure that the fact that I am the product o f a very expensive education shines through in my writing so, there is no, need to constantly point it out). I have no idea whether that review was a good one or bad one. Why? Because I am young and like other, people who are young (and who party and drink and dare to use the word “sex” in a book title) I have better things to do with, my time than.. where was I going with that again? That is not the important thing which is important. The important thing is this, that Known and Unknown is very long.

Perhaps Gess thinks that his client is so famously a moron, and so well-known as an awful writer, that reasonable people might mistake this for her actual writing; that doesn't save him from explaining the "Totally Meghan McCain" part or the presence on Red State. Perhaps he thinks people who want to read Meghan McCain's work non-ironically are unusually stupid; this doesn't help him either, because the test is what a reasonable person would think, not what a McCain fan would think.

Gess penned a thuggish legal threat based on clearly frivolous theories. It doesn't matter that his client is too stupid to understand parody or the First Amendment :

(Hat tip to Dan for saving the pics of her tweets before they got memory-holed.)

The courts, fortunately, are not too stupid to understand.

Part Four: What Should We Do About Frivolous and Censorious Threats?

Regrettably, Red State took the posts down, saying:

We’re confident that we are within our rights to parody and mock Meghan McCain on this, but it is frankly not worth our time.

That's unfortunate, but I understand it. Had Gess pressed forward with a frivolous suit, Red State would have had to find and (probably) pay a lawyer to defend it, resulting in expense, stress, and the uncertainty of the court system. Even in California, with its very strong anti-SLAPP statute, being sued is a demeaning and terrifying experience.

We shouldn't let this happen. You shouldn't let this happen.

What can you do?

1. Do your part to publicize instances of censorship on social media, blogs, and forums. That raises awareness of censorship and encourages public support of anti-censorship legal reforms. Better yet, through the Streisand Effect, it deters censorious thuggery like this: if lawyers know that their threats might result in several orders of magnitude more attention to parody or criticism of their clients, they may have second thoughts about legal threats.

2. Do your part to call out censors by name for what they are. There is no reason that Albin Gess should not be reviled in public for such a censorious threat. Censors — particularly lawyers who use frivolous legal threats to censor — are worthy of contempt. If more people call them out, they will realize there is a cost for such conduct. It will, and should, also cost their self-respect and peace of mind. Gess probably sleeps by telling himself, "hey, I'm not a censor, it's my client. I'm not like the child molester; I'm only like the guy who sells the child molester a panel van and an array of colorful and delicious candies." Society ought to encourage him to revisit his thinking. Vigorous advocacy of unpopular clients is to be admired, but frivolous and thuggish censorious threats are not. Write about censors, but do not harass them — we are the good guys, and they are the bad guys.

3. Educate yourself about anti-SLAPP statutes, find out if your jurisdiction has a good one, write your legislators supporting anti-SLAPP legislation, and agitate for it. Support some appropriate version of the federal anti-SLAPP statute.

4. If you are able, donate to legal defense funds. If you are able — I'm talking to you, lawbloggers — offer pro bono services. I disagree with a lot of what gets published on Red State, and the folks there probably disagree with a lot of what we write here. But I would have been happy to step up and defend them — and in California, under our strong anti-SLAPP statute, I wouldn't have had to do so for free, because after I stomped on the roaches the court would have awarded my fees. I love getting my fees for curb-stomping a censor.

Hey, Red State? Next time, give a lawblogger a call.

Edit: The parodist speaks.

Last 5 posts by Ken White


  1. says

    I’m not like the child molester; I’m only like the guy who sells the child molester a panel van and an array of colorful and delicious candies.

    Don't lie to me now… That was your favorite part, wasn't it?

    Also, I would like to point out the following from the thuggish screed that flowed like stupid from the printer of Albin Gess:

    We, request that you take down the posts and the comments associated with them.

    Three things:

    a) I have long wondered who "edits" McCain's columns, and now I know.

    b) alternately, I suppose that it is possible that an Avatar of Irony momentarily took possession of whoever typed this missive, causing them to mirror one of the very things the client was being mocked for.

    c) if none of the above, where the holy monkey-fuck did that comma come from? It appears out of no where from the aether, as though summoned by some sort of diabolical linguistic warlock who is possessed by malicious intent.

  2. says

    Having never heard of this woman before, sometimes it is good to live elsewhere, and now having had the misfortune to now be less intelligent after reading her drivel (can I claim loss of intelligence and Emotional harm now?) the immediate thought that occurred was

    "Does Stephanie Myers have a long lost relative who is even less able to write coherently?"

    And forget Hemingway, Laurence Stern penned this woman's incoherency best in "The Life and Opinions of Tristram Shandy" (1759)
    "[h]ead like a smoke-jack;— the funnel unswept, and the ideas whirling round and round about in it, all obfuscated and darkened over with fuliginous matter"

  3. Astonied says

    Ken…just wondering if your life insurance is current and paid. Gess reminds me of that infamous cheerleader's wacky mother.

  4. says

    "Ken", if that is, indeed, your name, I will have you know that I attended Colombia University, which is an excellent, and most famous, university in New York City. In fact, Colombia University is the home of the world's most excellent, and famous, school of journalism, so it stands to reason that I know what I am talking about, when I say that "parody's" such as that by "Red State" are not protected under the First Article of the constitution. In fact, as a professional journalist myself, I have sources, and resources, and so it was simple for me to obtain a copy of the First Article of the constitution, by downloading it from http://www.wikipedia.org, and I am here today, to tell you, and your s0-called readers, that the word "freedom of speech" DOES NOT EVEN APEAR in the First Article of the constitution. What do you think of that?

    In fact, I was discussing this with my BFF Erica, just yesterday, as we sat poolside at Bel Agio, in Las Vegas, where you probably couldn't even afford to go. The Bel Agio Hotel and Casino is very exclusive. It is reserved for a better class of people. No hicks from the sticks! Like you. Erica, by the way, is a professional journalist, as well, working as she does as an editorial assistant at Shape Magazine, and I will you know that Erica had never heard of your so-called First Article of the constitution, so it's precedent as a so-called law seems highly unlikely to me, in the judgement of two professional journalists, like Erica and I. And my father, I will have you know, is a United States Senator, and a leading candidate for President of the United States, and engages in high level discussions with the President of the United States, all the time. So it would seem to me, as a professional journalist, and a close family member of one of the most powerful men in the world, that you do not know what you are talking about. At all.

    You will be hearing from my attorneys shortly, if not today, if you do not apologize, and take down these lies that you have spread about me, and about my family, I will have you know. I hope that you have insurance.


    — Meghan McCain.

  5. Laura K says

    Dear Ken,

    You can tell Ms. McCain–if she really posted that last comment–that she must stop talking about her Columbia education if she wants us to stop guffawing every time she uses incorrect grammar, syntax or such incredibly inane skill in vocabulary selection.

    Dear Ms. McCain…How many times was Madeline L'Engle turned down by publishers? Louisa May Alcott? John Milton? It took them a while, needless to say, and these people thought. That's it. Thay used their brains.
    I realize I am belaboring my earlier point, but atending a prestigious school does not make you intelligent, nor does it make you an able writer. Publishing a book with relative ease does not put you in the company of thinking, thoughtful men and women.

    Your father hasn't said a graceful thing since his concession speech. I don't see that you can even make that claim. Please learn how to write or apologize for your errors as the rest of us mere mortals do. Failing that, please just go back to the pool.

  6. Laura K says

    Oh, and whoever wrote 'Ms. McCain's' reply? NICE GAG. If you're feeling compassionate, do inform the President of Columbia University that you were satirizing. Maybe he won't throw up again (as he must every time this bimbo opens a keyboard). Acid reflux is almost as repugnant as Ms. McCain's prose…

  7. says

    > resembling what would happen if you gave Jane Teasdale a political column and a sharp blow to the head.


  8. Laura K says

    Sorry, Xenocles and Patrick I was wondering if it was a spoof. If my silliness your brain offended, nothing but crediting the wag behind the post was intended…

  9. Nicolas says

    This is the American bar's version of the Nuremberg defense.

    It you don't want to do something unethical or humiliating, then quit.

  10. ElamBend says

    Dammit Patrick, you beat me to the punch. I love that review.

    This particular paragraph stands out:
    "It is impossible to read Dirty, Sexy Politics and come away with the impression that you have read anything other than the completely unedited ramblings of an idiot. This being a professional website for which I have a great deal of respect, I searched for a more eloquent or gentle way to accurately phrase the previous sentence – but could not find one. It is important to know that I was repeatedly tempted just to put the book down, eat the relatively small price I paid to download it to my Kindle, and silently curse Hyperion for publishing this book. After all, they are the ones taking advantage of this particular idiot’s fifteen minutes of fame by exposing her idiocy for the entire world to see. By all appearances, they didn’t even have the decency to hire someone to edit the book – more on that later."

    Now, I know it's just fact of life that some people are going to get jobs/make money based upon who their daddy is, but I find it particularly galling when the person has absolutely no merit what so ever. (Jenna Bush as NBC Today Show corespondent comes to mind). It's even worse though when such a person is lazy and petulant about it; this is where Ms. McCain excels.

  11. says

    I just read one of her blog posts and can promise that I'll never do that again. Here is a sentence from the "Rick Perry is GWB 2.0" post:

    "Among the litany of things that could be listed to showcase Perry’s extreme views, his comments that Social Security is nothing more than a “Ponzi scheme that cannot be sustained” is reactive."

    It is quite obvious that no one is bothering to edit her posts. To be quite honest, if she is a Columbia Graduate, it is obvious that even SHE isn't proof-reading her own posts. I proof-read my comments on this blog more than she seems to proof-read her own articles on a widely read internet blog. She claims to be a journalist, and yet she doesn't even have the intellectual chops to be able to properly determine whether a sentence needs an "is" or an "are"?

    Since there is a precedent for a person who's behavior is so over-the-top horrible to be "libel proof", I wonder if a similar precedent could be set that someone this obviously vacuous is "parody proof?" The problem here is that I see the point being made that the parody that Red State put up could easily be mistaken for Ms. McCain's actual writings, because even though they are monumentally stupid, they aren't stupid enough that a lay-person wouldn't mistake them for her own writings. So, it seems to me that a "parody proof" precedent needs to be set here. She's made her own bed by being so arrogantly lazy and petulant about not seeing her own failings. Let her sleep in it.

  12. says

    Put another way, Goober, if her writing really is so horrific that it is indistinguishable from vigorous parody, then how does vigorous parody put her in a false light?

  13. says

    Also, I make typos and misspellings and grammatical errors all the time. I could use an editor. But nobody's publishing me in a mainstream fashion without making me use one.

  14. Patrick says

    Well, that and the fact that her alter ego is named "Totally Meghan McCain", rather than "Meghan McCain".

    It's sort of a tell that Meghan McCain isn't the actual author of this clever parody of a vacuous nitwit.

    As to whether her lawyer's embarrassment at reaping a harvest of mockery outweighs his pleasure at billing her $750.00 an hour for the ten hours it took to prepare this travesty of a pre-suit letter, we'll likely never know.

    $7,500.00 buys a totally bitchin weekend at the Bel Agio.

  15. says

    Snell & Wilmer is a good firm with a good reputation.

    Good firms with good reputations shouldn't do this sort of thing either.

  16. Mike says

    Never thought I'd be more cynical than Ken, but I'm thinking the lawyer is feeling pretty balls right now. He wrote a nastygram, and the guys at Red State punked out. That lawyer got to make a nice call to the client.

    Plus, a lot of people are in the market for lawyers without personal integrity. Need a guy who will make up the law and threaten people so long as the check clears? Now everyone knows whom to call.

  17. Laura K says

    –Patrick, I had not yet had my coffee and I succumbed to a moment or six of hopless optimism that maybe there was another satirist beyond "totally Meghan McCain" out there. I should not have done that.

  18. says

    Here's the problem: There's no legal ethics rule that effectively prohibits a lawyer from writing threatening letters that are bluffs. And when the piece at issue is fleeting, and there is a chance that the bluffer is a whack job, it doesn't meet any cost-benefit calculation to dare the possible whack job to sue. And those of us with precarious businesses and lives and wives we have to consult can't always afford to take that chance. Sometimes I've called the bluff. Sometimes I've capitulated, while writing the lawyer that they suck.

    An organization dedicated to defending against such suits would be a great comfort.

    Excellent post, Ken.

  19. says

    It is silly, I agree.

    I'm fine with the parody. I don't see the need to mock Meghan McCain's fame, though. She's famous for something other than her natural God given or learned talents. So what? That puts her with half of the famous people we know. At least she is trying to write which is substantive.

    I just think there are a lot of harder targets out there for serious people. She's a young girl. Let's cut her a little slack.

  20. KansasGirl says

    If Al Yankovich can parody singers and their songs, then RedState can parody this nobody.

  21. says

    She’s famous for something other than her natural God given or learned talents. So what?

    It's that she labors under the delusion that she is famous for exactly those reasons.

    Mockery and derision are the only possible cures.

  22. Calvin Dodge says

    "… even though no rational person could possibly mistake them for a post by Meghan McCain …"

    Actually, an old friend of mine did just that. OTOH, he's a Leftie, so I guess the "rational person" clause doesn't apply.

  23. Calvin Dodge says

    Ron Miller – she's 27. Even though I'm twice that age, I don't consider her to be a "young girl".


  1. […] At RedState, Leon Wolf has been parodying the work of Senatorial daughter and talk-show personality Meghan McCain. McCain's lawyer, Albin Gess of Snell & Wilmer, wrote RedState editor Erich Erichson to threaten litigation over the posts, which prompted this magnificent letter in response (PDF) from Georgia attorney Christopher Scott Badeaux, representing Wolf. It also guaranteed more critical attention to McCain herself and her work, including this cruel entry by Ken at Popehat. […]

  2. […] "At RedState, Leon Wolf has been parodying the work of Senatorial daughter and talk-show personality Meghan McCain. McCain’s lawyer, Albin Gess of Snell & Wilmer, wrote RedState editor Erich Erichson to threaten litigation over the posts, which prompted this magnificent letter in response (PDF) from Georgia attorney Christopher Scott Badeaux, representing Wolf. It also guaranteed more critical attention to McCain herself and her work, including this cruel entry by Ken at Popehat. […]