Toddlers' Lawsuit Against Trump Tossed in Test of New York’s Expanded anti-SLAPP Law

Wednesday, July 21, 2021 - 4:30 pm PT
race toddlers trump right of publicity new york lawsuit

On July 9th, a New York trial court dismissed the high-profile lawsuit against Trump, Trump for President, Inc. (“TFP), and Lance Cook brought by the parents of two toddlers whose embrace was transformed from a meme of racial harmony into an edited video suggesting one of them was a “racist baby.”

The parents of the two-year olds had recorded the video of the two children “hugging each other on a New York City sidewalk. The video of M.H., who is black, and F.M., who is white, went viral as a symbol of racial unity.”

The video caught the attention of defendant Logan Cook, a Trump-supporting self-identified “memesmith.” Cook took the popular meme, reedited it so that a part where the white toddler runs after the black one is shown first with a “breaking news” chyron added to the bottom (similar to that used by CNN), and added a caption reading “Terrified Todler [sic] Runs From Racist Baby” and “Racist Baby Probably A Trump Voter.” Then the video fades to black and text states “what actually happened,” and then shows the video of the two kids embracing. The shot then fades and displays the message: “AMERICA IS NOT THE PROBLEM . . . FAKE NEWS IS. IF YOU SEE SOMETHING, SAY SOMETHING. ONLY YOU CAN PREVENT FAKE NEWS DUMPSTER FIRES.” Cook posted this reedited video to his Instagram account.

Trump tweeted Cook’s doctored video and the TFP account retweeted it. These tweets were viewed over 20 million times. Facebook and Twitter removed the “postings on the grounds that [the video] violated their copyright rules, lacked approval of the plaintiffs, and was ‘likely to cause harm’ to the plaintiffs.” Twitter permanently banned Cook from its platform, but Cook continued to feature the video on Instagram and elsewhere.

The parents of the toddlers sued. Their inclusion of claims for both negligent and intentional infliction of emotional distress shows the depth of their disgust at how the video was used. The court tossed both those claims, concluding that there was no extreme or outrageous conduct at issue.

The court also dismissed the plaintiffs’ right of publicity claims under New York Civil Rights Law §§ 50 & 51 (brought on behalf of the children), concluding that the uses were not for purposes of trade or advertising, and regardless were newsworthy and therefore exempt from liability.

This case provides one of the early tests of the newly expanded anti-SLAPP law in New York state (amended in late 2020), and demonstrates the ability to now quickly dispose of lawsuits limiting free speech in the state. This will no doubt be music to media lawyers' ears as they have been seeking such a device in the state for years.

I note that the court did not address the defendants' questionable argument that since the plaintiffs initially posted the video, their privacy rights under §§ 50 and 51 could not have been violated by further postings of the video (even if altered and used for a different purpose).

In addition to highlighting the role of private platforms in regulating content, and doing so in ways different from how courts adjudicate such disputes, the opinion highlights the continued struggle in New York to understand what use “for the purposes of trade” means. The court concedes that “trade purposes” is “more difficult to define” than the meaning of uses for “advertising purposes.” Like some courts before it (but not all) the trial court contrasted what is newsworthy from what is a use for trade purposes. As I have emphasized elsewhere, these two concepts are better understood as distinct inquiries as suggested recently by the New York appellate division in Porco v. Lifetime Entertainment Services.

The court also joined the confusing (and far from unanimous) line of New York cases that suggest that “works of fiction and satire do not fall within the narrow scope of the statutory phrases ‘advertising’ and ‘trade.’ Following this view, the court concluded that because the video was a fictionalized satire of the original video it was not a use for purposes of trade. The highest court in New York, however, has suggested otherwise in the context of video games. See Lohan v. Take-Two Interactive (NY 2018); see also Porco v. Lifetime Ent. Servs. (N.Y. App. Div. 2021) (allowing that a use in a fictionalized docudrama could be a use for purposes of trade, but concluding that use was newsworthy).

The court appropriately concluded here that the tweets did not count as advertising. Trump and TFP used the tweet to promote Trump and the campaign, but did not use the video in an advertisement for the campaign or a specific promotional event. (As I have noted, unauthorized uses in political advertisements of a person’s identity are a controversial area of right of publicity enforcement, but liability for that is not at issue here).

Cook’s use on his Instagram account should have been a closer call as to whether this was a use for purposes of trade. He used the video as part of his broader effort to monetize his meme-creation endeavors on social media. The court concluded, however, that this was not a use for purposes of trade. I think the better analysis is that Cook’s use could have been for purposes of trade, but was nevertheless protected free speech, and one that fell within the newsworthiness exception. As the court observed, Cook’s use—however distasteful (and misleading)—was a commentary on the ease of manipulation of videos and the generation of fake news. And his video did ultimately reveal the original footage of the two children embracing.  Accordingly, even if a use for purposes of trade, it was newsworthy and should not have given rise to liability.

Not sure this case will continue especially with the ongoing threat of attorneys’ fees under the new fee-shifting provision of the amended anti-SLAPP law. Notably, the court chose not to award fees to the defendants in this case.

Cisernos v. Cook, No. 157550/2020 (N.Y. Sup. Ct. July 9, 2021)

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