Lawyers representing pop star Taylor Swift sent a cease-and-desist letter to a politics and culture blog, demanding the retraction of an article tying Swift to white supremacist culture. But instead of removing the article, PopFront editor Meghan Herning called the ACLU, which wrote back to Swift's lawyers defending Herning's right to free speech.

The back-and-forth was revealed yesterday by the ACLU's Northern California branch, which published the retraction demand letter (PDF). The ACLU did so despite the demand by Swift's lawyers that their threats be kept secret because publishing the letter without permission would be "a violation of the Copyright Act."

"Intimidation tactics like these are unacceptable," said ACLU attorney Matt Cagle in a statement. "Not in her wildest dreams can Ms. Swift use copyright law to suppress this exposure of a threat to constitutionally protected speech."

“Taylor’s silence is not innocent”

PopFront bills itself as an "online magazine about politics, culture, and activism" that is dedicated to "bringing together the left."

On September 5, Herning wrote a post on the site titled "Swiftly to the alt-right: Taylor subtly gets the lower case kkk in formation." The essential point of the post is that Swift's music includes imagery that appeals to the American far-right. Focusing on Swift's most recent single, Herning writes:

Taylor's lyrics in "Look What You Made Me Do" seem to play to the same subtle, quiet white support of a racial hierarchy. Many on the alt-right see the song as part of a "re-awakening," in line with Trump's rise. At one point in the accompanying music video, Taylor lords over an army of models from a podium, akin to what Hitler had in Nazi Germany. The similarities are uncanny and unsettling.

The post goes on to intimate that Swift might actually be sending these messages deliberately. "It is hard to believe that Taylor had no idea that the lyrics of her latest single read like a defense of white privilege and white anger," writes Herning. "There is no way to know for sure if Taylor is a Trump supporter or identifies with the white nationalist message, but her silence has not gone unnoticed."

Herning notes, as others have, that the lyrics to Swift's new single were tweeted out by Breitbart. The post concludes by criticizing Swift for not openly campaigning for Hillary Clinton, as fellow pop stars Katy Perry, Lady Gaga, and Beyoncé all did.

"Taylor's political silence appeared to be a rejection of her peers' support of the inclusive Democrat platform," Herning wrote. "Taylor's silence is not innocent, it is calculated. And if that is not true, she needs to state her beliefs out loud for the world... in America 2017, silence in the face of injustice means support for the oppressor."

“A malicious attack”

Swift didn't see the PopFront post as a mere political musing. Swift's lawyer William Briggs wrote (PDF) to Herning demanding that she "immediately issue a retraction" of the "provably false and defamatory story" she had written.

"It appears to be a malicious attack against Ms. Swift that goes to great lengths to portray Ms. Swift as some sort of white supremacist figurehead, which is a baseless fiction masquerading as fact and completely misrepresents Ms. Swift," Briggs writes.

He goes on to say that PopFront is "liable to Ms. Swift for defamation."

"Contrary to the statements in this story, Ms. Swift has repeatedly and consistently denounced white supremacy when she has faced these disgusting accusations, including by denouncing these vile lies when other publications have repeated them," Briggs says.

PopFront had a duty to "conduct a reasonable investigation" before publication, and its failure to do so "is a violation of law and the rights of those targeted by such unfounded allegations."

Briggs suggests that "a couple of minutes of online searching" would have led to articles that "clearly refute any purported affinity by Ms. Swift for the alt-right," such as a Huffington Post piece titled "No Doubt Taylor Swift Is Horrified to Learn She Has a Neo-Nazi Following." The Huffington Post, along with The Washington Post and other publications, reported on the fact that some far-right voices seem to celebrate Taylor Swift, while explicitly making clear that their love is unrequited.

Briggs writes:

[Y]ou are requiring Ms. Swift, but not any other celebrity or musician, to loudly denounce white supremacy, and you do not accept her previous condemnations as good enough. Given your apparent animus and malice toward Ms. Swift, the intent to cause harm to Ms. Swift is clear.

The letter demands the story be retracted, removed "from all media sources," and not republished further. It sets a deadline of October 24 and says that if PopFront does not comply, "Ms. Swift is prepared to proceed with litigation."

Briggs, who works for the large law firm Venable LLP, also insists that PopFront keep the threats secret, saying that his letter is a "confidential legal notice" and that publishing it without permission would violate copyright law. "You are not authorized to publish this letter in whole or in part absent our express written authorization," writes Briggs.

“Shake it off”

Briggs' letter has, of course, been published in full, and his client's legal threats are getting all the attention that he thought he could ward off.

Herning called the ACLU, who took her and PopFront on as clients, and wrote a blistering response (PDF) to the letter yesterday.

"Ms. Herning and PopFront will not in any way accede to your attempt to suppress their constitutionally protected speech," writes ACLU attorney Michael Risher. He continues:

The blog post is a mix of core political speech and critical commentary; it discusses current politics in this country, the recent rise of white supremacy, and the fact that some white supremacists have apparently embraced Ms. Swift, along with a critical interpretation of some of Ms. Swift's music, lyrics, and videos.

The ACLU letter runs through the four statements that Briggs described as "hideous falsehoods. Three of them, Risher says, are statements of opinion, which can't be defamatory under US law. The final, supposedly defamatory statement—that Swift's silence means she supports the alt-right—doesn't reflect what the blog really says, Risher writes.

"Thus, however 'hideous' you consider these statements to be, none of them are actionable," writes Risher. "Criticism is never pleasant, but a celebrity has to shake it off, even if the critique may damage her reputation."

The final page of the six-page letter demolishes Briggs' attempt to use copyright to keep the dispute quiet and should be required reading for anyone who gets an unsolicited "confidential" legal threat. Risher calls the confidentiality assertion "utter nonsense," writing, "[T]he claim of confidentiality can only be described as odd, particularly coming from a lawyer; you cannot really expect that a person who receives a letter like this will feel any duty to keep this matter a little secret between the two of you."

He then goes on to explain that copyright law can't be used to suppress the letter, because its reproduction is fair use.

Attaching the letter to this one transforms it from a clumsy legal threat to suppress constitutionally protected speech into an exposé of that attempt in order to educate others who might receive these types of letters that they need not be intimidated. The letter is ostensibly factual in nature, rather than fictional, which also weighs in favor of fair use. Because your letter is not otherwise available to the public, it is necessary to use it in its entirety so that readers can fully appreciate it... In short, you may no more use copyright law to hide the contents of your letter from public scrutiny than a kidnapper could use it to prevent his victim's family from giving a copy of the ransom note to the police.

Risher concludes his own letter by asking Briggs to advise him by next Monday, November 13, if he disagrees or intends to proceed with litigation.

We reached out to Briggs asking for his or his client's point of view about the ACLU actions, but we didn't hear back.