Why A Nude Portrait Of Donald Trump Should Worry Everyone In America
The artist claims to have received a legal threat -- and the situation highlights peculiar legal tangles that develop when political figures are celebrities.
After a weekend of violence at Donald Trump campaign events in Chicago, there are plenty of reasons to worry about the dangers of a Trump candidacy, to say nothing of a Trump Presidency. Our nation didn’t exactly have racial, cultural, or political harmony to spare before Trump managed to convince millions of people that they should give him the opportunity to make America nativist xenophobic oligarchic politically incoherent great again. We sure don’t have that harmony to spare now.
There’s yet another reason for liberal and conservative Americans alike to fear a future with Trump in politics, though.
It starts with a nude portrait of Donald Trump.
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You can view the full artwork here. Suffice it to say that an image of Donald Trump’s genitals is Not Safe For Work. A junk-free version is here.
The artwork titled “Make America Great Again,” by Los Angeles based artist Illma Gore, depicts a decidedly doughy Trump, one knee propped up, awkwardly displaying what can fairly be described as a very, very small penis.
According to Steven Nelson at U.S. News, the artist says she was contacted by someone claiming to be associated with Trump who threatened to sue her if she sold the sketch.
Nelson’s piece, with the help of experts like Eugene Volokh, explains why the First Amendment likely protects Illma Gore’s nude portrait of Trump. Even if the artist were to sell the artwork, the inglorious sketch of Trump seems to be just the sort of political expression that the law means to protect.
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Why should this nude Trump portrait make the rest of us nervous then?
Regardless of whether Trump attempts legal action in this particular case or not, the situation highlights peculiar legal tangles that develop when political figures are celebrities. Donald Trump is an especially dangerous man to put in that position.
First, some background.
Lessons from Larry Flynt
Sometimes public figures find themselves the subjects of critique or commentary, and sometimes they don’t like how they’re portrayed. But the law severely limits their legal remedies.
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Thirty years ago, Larry Flynt’s Hustler magazine printed a parody ad purporting to be Evangelical leader Jerry Fallwell’s account of losing his virginity during a drunken encounter with his mother in an outhouse. Falwell, not known for his appreciation of satire, hyperbole, or a good incest joke, sued for libel and intentional infliction of emotional distress.
In Hustler v. Falwell, the U.S. Supreme Court held that shielding public figures from emotional distress was not a good enough reason to deny First Amendment protection, even to patently offensive expression, when the speech could not reasonably be interpreted to be a statement of actual fact. Parody, satire, and commentary typically don’t purport to state factual claims, false or not.
Right of Publicity
The law is different, though, when the alleged injury is not to the public figure’s reputation but rather to his commercial interest in himself.
The right of publicity, generally, allows an individual to control the commercial use of his or her name, image, or likeness. The concept finds its way into a patchwork of common law causes of action, state statutes, and, arguably, some provisions of the federal Lanham Act.
A standard example of misappropriating someone’s identity or likeness for commercial use might involve a merchant using a celebrity’s photograph in an advertisement, without the celebrity’s permission.
Traditionally, political figures are less likely to enforce their publicity rights than are other sorts of public figures such as entertainers, artists, or athletes. Political participation does not require that an individual completely relinquish her right of publicity. But it does make it more likely that courts would construe uses of her image or likeness as constitutionally protected political speech. Moreover, most politicians prefer to avoid the nasty public relations consequences of taking their critics to court.
In principle, Donald Trump retains his right to vigorously challenge unauthorized commercial use of his likeness, even as he runs for office. Nevertheless, his celebrity status — and his extensive marketing of his celebrity persona — complicates things.
Why?
Trump Doesn’t Let Details Like Law or Facts Stand In The Way of A Lawsuit
First, Trump is notoriously litigious.
Trump seems to live in a world where all personal affronts are legally actionable, a world where all exchanges are fundamentally commercial. He is likely to sue whenever he has even a faint chance of a claim, even if he doesn’t deserve to win on the merits.
If Trump’s past predicts the future, we could expect many more lawsuits by a President Trump than by any prior officeholder.
A Commercial Shield As A Political Sword
Second, Trump, because of his celebrity status, can use the guise of protecting his commercial interests in order to retaliate against political critics.
Donald Trump slaps his personal brand on everything within his reach and without a pulse. Trump Tower. Trump University. Trump magazine. Trump Airlines. Trump Financial mortgage firm. GoTrump.com, the search engine for travel deals. TRUMP the board game. Trump Ice bottled water. Trump Vodka. Trump menswear. Trump Steaks.
When does commercial speech exploiting the public image of a celebrity become constitutionally protected political speech about a candidate or President?
Courts already struggle to draw lines in publicity-rights cases. The distinction does not hinge simply on whether the speaker makes money from the expression. If the standard were so simple, professional comedians, artists, musicians, and writers would be in trouble.
In Trump’s case, the line-drawing gets trickier because he, more than most political figures, does have a significant property interest in the persona he has cultivated over the years. But what’s to stop Trump from cracking down on political expression about him that he doesn’t like, just by claiming that it is violating his property interest in his public persona?
Celebrity Trump or Candidate Trump?
Third, Trump’s own behavior during the 2016 election cycle hardly makes it easy to distinguish between Trump the Celebrity and Trump the Candidate. His showboating shenanigans on the campaign trail all but dissolve the wall between the two.
Recall that Trump himself has made his manhood a matter of public concern. Or, at least, the subject of public statements at the March 3rd GOP debate.
Moreover, Trump himself seems to relish the cross-promotional opportunity that comes from pumping his products and persona while running for office.
Some celebrities who take up politics as a second career make an effort to cultivate a more refined public image when they leave show biz behind. Trump, on the other hand, behaves on the campaign trail much like he did while he was on the TV show, “The Apprentice.” It’s a wonder he didn’t make his campaign slogan, “Obama, You’re Fired.”
It’s much harder to distinguish between political speech and commercial speech when the man you’re speaking about seems to conflate the two.
The Chilling Effect
Finally, keep in mind Trump doesn’t have to actually win cases in order to intimidate his critics and chill speech.
Trump, unlike lots of politicians, has the personal financial resources to pursue plenty of cases, even if his claims ultimately fail in court. To make matters worse, he often crows about refusing to settle lawsuits. If so, defending oneself against a Trump right of publicity suit could quickly become prohibitively expensive for most people he sues.
Illma Gore’s portrait isn’t disturbing simply because it offers a vision of a nude Trump. It is disturbing because it offers a vision of what free expression could look like if Donald Trump is allowed to remain in politics. That vision should worry us all.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.coma.
