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Donald Trump is no longer on Twitter. The lawsuit that he filed last week against the social media service for supposed censorship almost certainly won’t change that. Nevertheless, the former president can enjoy at least one First Amendment victory. A New York judge has just dismissed a privacy lawsuit against him over the retweeting of a meme. In what appears to be a first, the judge finds the meme to be “newsworthy.”
The meme in question comes from Logan Cook, who goes by the internet handle “CarpeDonktum.”
Cook found a video of a white toddler running after a black toddler and stuck a chyron reading “breaking news” over it. The captions read, “Terrified Todler [sic] Runs From Racist Baby” and “Racist Baby Probably A Trump Voter.”
The video then fades to black, and reads, “What actually happened.” The toddlers run at each other and embrace. A new caption: “AMERICA IS NOT THE PROBLEM…FAKE NEWS IS. IF YOU SEE SOMETHING, SAY SOMETHING. ONLY YOU CAN PREVENT FAKE NEWS DUMPSTER FIRES.”
After Trump tweeted the video, which led Twitter to add a “manipulated video” message, the parents of the toddlers filed suit against both Trump and Cook and alleged that the exploitation of the childrens’ image had violated New York privacy and publicity rights law (N.Y. Civil Rights Law §§50 and 51) and was both an intentional and negligent infliction of emotional distress.
New York Supreme Court Judge David Benjamin Cohen decides dismissal is warranted.
“Initially, as defendants assert, the video was newsworthy,” he writes. “To promote freedom of expression, the meaning of ‘newsworthiness’ has been broadly construed and includes ‘not only descriptions of actual events … but also articles concerning political happenings, social trends, or any subject of public interest.’ … It is common knowledge that one of the principal tactics of Trump’s presidential campaigns, as well as his presidency, was to incessantly attack the mainstream media as purveyors of ‘fake news,’ including his claim that the media exaggerates the extent of racial division in this country. Thus, the video’s references to ‘fake news’ and its depiction of race relations, however distorted, are clearly newsworthy.”
Cohen adds that any reasonable viewer would realize the content wasn’t real.
“Since the video is therefore a satire, albeit one which some may consider to be rather distasteful, this Court is constrained to find that it is not actionable,” continues the decision.
Trump not only sought dismissal but looked to take advantage of New York’s recently amended anti-SLAPP statute to recover his legal fees.
The judge won’t go that far.
Cohen does agree this suit qualifies as a SLAPP — meaning a frivolous piece of litigation aimed at interfering with the former president’s First Amendment rights. And while Cohen ultimately disagrees with the plaintiffs’ argument that Trump used the video as a means of advertising his presidential campaign, the judge nevertheless dodges an attorney fee award by saying plaintiffs had a “good faith basis” for their arguments and that the parents “should not be penalized by the draconian language set forth in” the anti-SLAPP statute.
Here’s the full decision:
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