“My fingers are long and beautiful, as, it has been well documented, are various other parts of my body.” – Donald Trump to Page Six on April 3, 2011.

“If they’re small, something else must be small,” [about Marco Rubio referring to his hands and genitals,] “I guarantee you there’s no problem, I guarantee you.” – Donald Trump at the March 3, 2016 Republican Primary Debate in Detroit, Michigan.

Donald Trump is not one to take the high road and let an insult to his manhood go unchallenged. So, it comes as little surprise that when Los Angeles based artist Illma Gore painted a nude portrait of him, Donald Trump, or at least his people, took an interest. The artwork, a censored version of which is shown below, shows a nude Donald Trump, face contorted in the midst an undoubtedly newsworthy quote, micropenis smugly displayed (uncensored version here). Titled “Make America Great Again,” Gore first shared it on Facebook with the tag line, “You can be a massive prick, despite what is in your pants.”

The Right of Publicity

Although Trump’s campaign has not officially commented, Gore says a person claiming to represent Trump called her in February of 2016 threatening to sue if she sold the artwork, specifically citing Trump’s right of publicity. Considering The Donald’s litigious reputation , it’s not an outrageous claim.

The right of publicity is a person’s right to control the commercial use of their identity, preventing its commercial misappropriation. It protects against the unauthorized commercial exploitation of a person’s identity. A person’s identity, persona, or likeness can encompass their name, signature, photograph, image, voice, or even a catchphrase, so long as the characteristic identifies the person. Oddly enough, butts are insufficient to identify a persona, and likely by extension, so are genitals. The right of publicity is not federally protected right; it is governed by state law and treated differently in each state. In a minority of states, a right of publicity action requires a showing of fame or commercial value, but in the majority a successful claim would only require showing:

Gore used Trump’s identity, persona, or likeness; Gore appropriated Trump’s identity to her advantage, commercial or otherwise; Lack of consent by Trump; and Resulting injury to Trump.

So, in ordinary circumstances, it looks like Trump would have a pretty solid case for the misappropriation of his right of publicity. Gore painted Trump’s portrait, she’s likely making sales off of it, Trump didn’t consent, and we all know how sensitive The Donald is about his “Trump Tower,” so that’s injury. Should be open and shut, but lucky for Gore, Donald Trump is running for President of the United States.

A Long and Hard Look at the First Amendment

Parody, Defamation, and Commercial Speech

In 1988, the Supreme Court used the First Amendment to protect political parody. The Court ruled that Evangelical Reverend Jerry Falwell could not win damages for libel after Hustler magazine ran a parody interview saying he lost his virginity during a drunken incestuous hookup with his mother in an outhouse. So we know there’s protection for political parody in terms of defamation, which is the act of spreading false information in order to damage another’s reputation. Libel is written defamation, and slander is spoken.

But, as we know, the right of publicity is not a defamation-related cause of action. It’s about commercial value in an identity. And although politicians certainly don’t relinquish their right of publicity by entering the public eye, they still rarely file suit on its basis. Pubic Public affairs and news related speech are generally given a lot of leeway in right of publicity cases; however, the limits are reached where the speech has a micro-connection to the newsworthy aspect of the right of publicity interest used, or the use itself is primarily commercial.

The Supreme Court has ruled that commercial speech is entitled to less First Amendment protection than noncommercial speech, and content-based regulation of it must only pass intermediate scrutiny to be found valid. However, commercial speech is narrowly defined – it is speech that proposes a commercial transaction. And the mere act of selling something does not automatically make speech commercial; courts use a three-part test instead:

Is the speech an advertisement; Does the speech refer to a specific product, and; Does the speaker have an economic motivation for the speech?

If the proposed speech . . . falls short . . . on one of the prongs, it will be deemed noncommercial. Noncommercial speech is entitled to full protection, and any content-based regulations are valid only if they can withstand strict-scrutiny.

First Amendment Artistic Expression and The Right of Publicity

Courts strive to strike a balance between the competing interests between a person’s right of publicity and the importance of protecting the freedom of expression in a democratic society. Although there are several balancing tests that courts use to resolve conflicts between the right of publicity and the First Amendment, three tests dominate:

The Predominant Use Test (examining commercial interests); The Rogers Test (modeled after trademark law); and The Transformative Use Test (modeled after copyright law).

The Predominant Use Test examines the main use of an allegedly infringing product. If the product sold predominantly exploits the commercial value of an individual’s identity, then it should be held to violate a person’s right of publicity and not be protected by the First Amendment, regardless of if there is some expressive content that may qualify as speech in other circumstances. However, if the predominant purpose is to make an expressive comment about the individual in question, then the expressive components should be given greater weight, and the speech should be protected.

Courts that have adopted this test reason that the Rogers Test and Transformative Use Test give too little weight to the fact that many uses of the right of publicity have both expressive and commercial components. Since, arguably, the predominant purpose of most products is to encourage sales, this is a plaintiff friendly test. Critics of this method suggest that the test is “subjective at best, arbitrary at worst,” and requires judges to act as both impartial jurists and art critics.

The Rogers Test examines the relationship between the persona being used and the work as a whole. The Second Circuit held that the right of publicity would not bar the use of an individual’s name unless the use was wholly unrelated to the product, or simply a disguised commercial advertisement for the sale of goods or services. The “wholly unrelated” language makes this a defendant-friendly test, as it potentially covers a large range of activity. In practice, this test is mainly applied to the use of an individual’s identity in a work’s title; otherwise, it could potentially immunize an enormous amount of tortious activity. Critics of this test point out that its analysis is too close to that of trademark law, subjecting it to an improper analytical approach.

The majority trend is to apply the Transformative Use Test, borrowing its analysis from copyright law and the first factor of the fair use analysis. It asks whether the work added significant elements, such that it transformed the work into more than a likeness. Courts will examine whether the likeness is one of the raw materials from which an original work is synthesized, or whether the it’s use is the sum and substance of the work in question. Essentially, the question is whether the work is so transformed that it is the defendant’s own expression rather than merely the individual’s likeness. Transformative elements can be parody, factual reporting, fictionalized portrayal, “lampooning,” or social criticism.

Gore’s work is likely protected under all of the tests discussed above, except for the Rogers Test, which doesn’t really apply. On her website, Ilma Gore says,

“Make America Great Again” was created to evoke a reaction from its audience, good or bad, about the significance we place on our physical selves. One should not feel emasculated by their penis size or vagina, as it does not define who you are. Your genitals do not define your gender, your power, or your status.

Moreover, Gore has explained, “The statement here isn’t just Trump with a small penis. I think it would be interesting to add female genitalia … and even Bernie Sanders, because there’s such an interesting stigma people put on it – people would take it as a diss and it shouldn’t be.” The way she’s titled her work and her commentary on it seems to fall under the umbrella of political commentary, one of the highest forms of protected speech. But, just because her work is likely to be protected in a court of law, does not mean that Gore is out of the woods, or should I say over the wall, yet.

Chilling Free Speech Through the SLAPP

Donald Trump’s litigious reputation makes him a likely candidate to pursue legal chicanery. Enter the SLAPP. SLAPP stands for “strategic lawsuit against public participation,” and is a lawsuit used to censor, intimidate, and silence critics through forcing them to deal with all the costs and hassles that come with defending a suit. Generally, SLAPP plaintiffs do not expect to win; their suits are usually frivolous with the goal of squelching free speech. Thus, Anti‑SLAPP statutes are designed to protect against this, and are meant to balance the rights of persons to sue and the constitutional right to exercise free speech (which we’ve discussed before here). Although not every state has an Anti‑SLAPP statute, the general test looks to:

Has the defendant (Gore) met the threshold burden of showing that their acts arose from protected activity; and If the defendant met that burden, the court examines if the Plaintiff (Trump) showed a probability of prevailing on their initial claim.

California has a slightly different test asking whether this is a free speech issue involving a (1) public issue that is (2) subject to a motion to strike. Both tests focus on the merits of the initial complaint. More importantly, the winner of a SLAPP motion can get the other side to cover attorney’s fees. Anti-SLAPP motions are a great tool because they completely pauses the case until decided. With a straight motion to dismiss, discovery can begin while the motion is being litigated; however, Anti-SLAPP motions, because of their focus on protecting speech and reducing costs, stay discovery. And, even if the plaintiff drops the suit, you can continue for a ruling on your Anti-SLAPP and be awarded fees.

So, under the test (1) Gore has likely shown that her painting constitutes protected political speech; and (2) it’s unlikely Trump would be able to show a good probability of prevailing on his claims, especially considering that he is generally a public figure, is currently running for POTUS, and raised the issue of his genitalia in actual Republican debates. All of Trump’s actions expose him, and his genitals, to the limelight, and thus in a place where others may make protected political comments concerning him and them.

And as for the “it’s pornography” argument, to misquote Supreme Court Justice Potter Stewart, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’], and perhaps I could never succeed in intelligibly doing so. But I know what I like – and it’s not that.”