Monday, April 01, 2019

Trump Sues to Block "Are You Smarter Than Trump?"

by Michael C. Dorf

After Nickelodeon revived the former Fox show Are You Smarter Than a Fifth Grader? in February, it should not have come as a surprise when Comedy Central announced next week's scheduled premiere of its spinoff Are You Smarter Than Donald Trump?. The concept is straightforward. Host Steve Harvey will ask contestants questions to which Trump does not know the answer.

I know what you're thinking: that hardly narrows things down. But as the promotional material makes clear, for a question to appear on Are You Smarter Than Donald Trump?, it's not enough that Trump certainly doesn't know the answer; he must have publicly espoused the wrong answer at some point.

Excited prospective viewers have been wondering what questions will be asked. Will contestants need to know whether Nambia is a real (shithole) country? Will they be asked how many Articles the Constitution contains? The difference between counsel and council? Where to buy the best covfefe in Seattle? With so much material in the bank and no sign that Trump's "very very large brain" will stop producing new head-scratchers anytime soon, it is easy to imagine a successful multi-season run for Are You Smarter Than Donald Trump?.

Or at least it was until late last week, when Trump's lawyers filed a lawsuit on behalf of the president seeking "declaratory, injunctive, and monetary relief" against Viacom, the parent company of both Nickelodeon and Comedy Central. In apparent recognition that, despite the best efforts of Justice Clarence Thomas, the nation's libel laws have not yet been "opened up," Trump's lawsuit does not argue that Are You Smarter Than Donald Trump? is defamatory. Rather, the lawsuit claims that Viacom has violated Trump's right of publicity. It argues that the First Amendment, as construed by the SCOTUS in the famous Human Cannonball Case, permits such a cause of action, at least in some circumstances.

What about these circumstances? Does Trump have "a property interest in his uniquely creative and  entertaining deliberate fauxlapropisms," as paragraph 24 of the complaint alleges? If ever there were a portmanteau that, by its sophistication announced that it was written for rather than by Donald Trump, surely it is "fauxlapropisms."

But I digress. We can grant that even a president retains some commercial interest in his name and brand. Suppose that Trump's continued financial interest in his hotels did not violate the Constitution's Emoluments Clauses. If so, Trump could sue another firm operating Trump-branded hotels to the same extent as a private party could. To be sure, when, in 1984, Donald Trump actually sued other, unrelated Trumps for using their names, he lost, but he had a weak case against them. We can imagine a stronger case.

The problem is that this latest lawsuit is not a strong case for Trump. Are You Smarter Than Trump? doesn't try to capitalize on Trump's business, brand, or likeness by confusing viewers about its provenance. It satirizes Trump by quoting his exact words.

Or at least it tries to satirize. Paragraph 31 of the complaint alleges that
while elitist consumers of fake news from CNN, MSNBC, and the failing New York Times may think that the intelligence of their President is a joke, millions of real Americans respect him and his office, and with good reason. President Trump built a multi-billion-dollar business empire by having the savvy to take advantage of market opportunities, the sorts of opportunities that would not exist in the socialist country that the producers of the defendants' "television show" would prefer to live in.
Misplaced politicking and quotation marks aside, that's not a terrible point. It appears that the potential audience for Are You Smarter Than Donald Trump? includes a substantial number of MAGA-hat-wearers who believe that the show will challenge contestants to match wits with the Stable Genius in Chief as he tackles affairs of state, much as The Apprentice showcased Trump's ostensible business acumen.

Wait, you say. Perhaps that's how Trump supporters think about the show now, before it airs its first episode, but surely once they see how Are You Smarter Than Donald Trump? ridicules the president, they will tune out, right? Right?!

No, of course not. Do you know any Trump supporters?

One needn't even take account of the special loyalty of Trumpistas, as opposed to Americans. Recall that before his current gig as host of The Late Show, Stephen Colbert hosted The Colbert Report, in which he portrayed a fictional version of himself who was essentially a parody of FoxNews blowhard pundits. And yet conservatives liked the show as much as liberals did. The former thought that Colbert was only pretending to be joking but was really espousing conservative views. Fauxlapropisms, indeed.

Accordingly, there may well be something to this latest lawsuit after all. If so and if Trump prevails, Viacom will not be the only loser. Trump will also have proven that satire has become completely impossible.