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.
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