You should never get in a shit-throwing contest with a flock of flying monkeys. Donna Barstow apparently didn't know this before, but she's finding out.
I learned about political cartoonist Donna Barstow from Rob Beschizza at BoingBoing. Barstow is a blogger (sort of), an author (technically), and, to my taste, an appallingly awful political cartoonist, gripped by some terrible compulsion to explain her cartoons in a caption when she posts them. Given her level of nuance, this is roughly akin to providing a listening guide to musak.
Barstow also has a history of drawing cartoons that elicit criticism, and then of threatening bloggers who post those cartoons as part of a fair use critique. As Beschizza says (with supporting links in his post):
It's not the first time Barstow has threatened critics who reproduce her single-panel cartoons. In 2009, she emailed the ISP of Alas, a Blog in an effort to have two posts accusing her of racism (1, 2) taken down. Renee Martin of Womanist Musing, who criticized the "Mexico" strip reproduced above and described Barstow as a "racist pearl clutcher", removed it at her request the same year. Pandagon, Volcanista, The Faithful Penguin, Kick and Radgeek all accused Barstow of racism over the same strip—and all were sent takedown demands.
This time, Barstow has turned her attention on a less compliant target — the denziens of the website Something Awful. To be fair to her, it's not like she lashed out at 4chan or something, but that seems to be her pure dumb luck. Barstow's complaint is that Something Awful forum goons posted and criticized her cartoons in a forum thread about bad cartoons. She began to lash out at Something Awful writers on Twitter. The steely dignity of her righteousness was perhaps diminished, just a little bit, by their Twitter handles:
Barstow went on to accuse Something Awful of copyright violations and "defamation," scorning the idea that posting her comics in a thread criticizing bad comics constituted fair use.
Pardon me for not linking to specific tweets on her Twitter account, but she blocked me as soon as I asked the defamation question. Also, pardon me for not being able to follow what she's saying in that last tweet about "targeting someone's political group."
Barstow soon found herself the target of insults, abuse, and — she claims — tweeted or emailed obscene images. That's obnoxious, juvenile, contemptible, and utterly predictable if you launch a broadside against a site like Something Awful.
But what about her legal claims? Barstow is right that Something Awful forum goons accused her of racism — largely on the strength of cartoons like this:
Donna Barstow may be right that this cartoon is not racist. It may simply be banal and loutish. But on the law, Donna Barstow is not right. She's very, very wrong.
First, she's wrong about copyright violations. Now, each alleged violation would have to be viewed in its particular context. But to the extent sites are posting her cartoons in order to criticize them — for instance, by posting that cartoon to argue that it's an example of bad cartooning or racism — then that's almost certainly fair use.
There are many cases out there I could cite for that proposition, but I'm going to indulge in bias and cite the opinion written by the late United States District Judge Richard A. Gadbois, a decent man who died too soon, for whom I clerked almost twenty years ago. Judge Gadbois' opinion arose from the famous Supreme Court case Huster v. Falwell, in which SCOTUS determined that the First Amendment protected a satirical cartoon that depicted Jerry Falwell as having a sexual encounter with his mother in an outhouse. Falwell later used the cartoon as a propaganda and fundraising device, putting copies of it in mailers saying, in effect, "look at what the Godless commie liberal haters are doing to me, please send money." Hustler, which has a sense of irony that is either overdeveloped or underdeveloped, sued for copyright infringement. Judge Gadbois found that even though Falwell's motive was partially to raise money, the fair use doctrine protected the copying, in part because the purpose of Falwell's use was different than Hustler's use:
It hardly needs stating that Reverend Falwell did not employ the ad parody for the same, intrinsic purpose as plaintiff. Hustler’s use of the work was satirical. It was obviously written to entertain the magazine’s readers, who would not be easily shocked by the language it contained. For defendants the article served an entirely different function. The Old Time Gospel Hour and the Moral Majority do not compete in the marketplace of ideas with Hustler magazine. In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work. Avid members of the Moral Majority presumably would not rate the entertainment value of this article very highly.
Although the Defendants used the parody for a commercial purpose in the sense that they profited from copying it, they did not actually sell the copies to willing buyers. Instead the Defendants used the copies to generate moral outrage against their "enemies" and thus stimulate monetary support for their political cause. Moreover, as the district court noted, Moral Majority or Old Time Gospel Hour members would probably not be counted among Hustler's readers. Therefore, Hustler's creative incentives are not decreased because the Defendants are profiting from an activity that Hustler could not have taken advantage of. See Pacific and Southern Co., 744 F.2d at 1496. "Where the copy does not compete in any way with the original … concern [about copiers undercutting demand and discouraging creativity] is absent." Consumers Union, 724 F.2d at 1051.
Here, posting a comic from Barstow to criticize it, and her, is an even more compelling case of fair use. Even if Something Awful is making some sort of derivative advertising revenue from the incremental additional traffic, the forum posters who posted it are making no money, and the entire purpose is to criticize the art and politics of the cartoons. (That distinguishes the FunnyJunk affair, in which FunnyJunk users were reposting comics for their comic value, not to criticize or discuss.) Moreover, even if particular posts in the forum threads include just the cartoon, and not commentary, they exist in the context of a thread criticizing and discussing cartooning in general and bad cartoons in particular. Fair use doesn't involve many bright lines, but this looks like a case that Something Awful could win, handily.
Her rage aside, I think Donna Barstow knows this. After all, she reprinted an entire Ted Rall cartoon in order to criticize it (screenshot taken in case she memory-holes it). She's done things like that a fair amount. [Edit: Ms. Barstow has memory-holed her sites. Will post the Google Cache links when I get them.]
Similarly, if Barstow thinks that she can sue Something Awful and its goon squad for defamation for calling her a racist, she is similarly badly mistaken. First, Something Awful is completely immune for the comments of its forum visitors under Section 230 of the Communications Decency Act. Second, calling Barstow a racist based on her comics is classic pure opinion absolutely protected by the First Amendment. This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.
Barstow is currently experiencing the Streisand Effect — the inevitable consequence of throwing legal threats around on the internet. To the extent that effect includes forum goons sending her porn, it's regrettable. But to the extent it includes widespread publication and criticism of her bogus legal theories and her history of threatening critics, it's a good thing. Censorious threats deserve condemnation and ridicule, because they represent a willingness to abuse our broken legal system to suppress protected speech.
Have at it, Something Awful. But try to be the good guys, would you? I know that's a lot to ask of a flock of shit-throwing monkeys. But I believe in you.
Edited To Add: Thanks to someone on Twitter who pointed Ms. Barstow to my contact information, she just called me at my office. I would characterize the conversation as surreal. Among the things she said: (1) she saw that I didn't list copyright as an area of expertise, so how could I write about this, (2) she hadn't threatened to sue anyone, (3) she shouldn't have to put up with defamation, (4) how can I say bad things about her, (5) Obama created some sort of new copyright department but it was useless, (6) she was just trying to reach out to me person to person, and (7) she thought it was suspicious that I did not "sign" my post.
Is this real life?
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016