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.


David Ricardo said...

"Trump will also have proven that satire has become completely impossible."

Au contraire, mon ami, not quite yet as this post illustrates.

Shag from Brookline said...

Under the Constitution, Donald Trump has a right to privycy. This does by no means suggest that America is a "S***hole" nation nor that our Constitution is not worth the parchment or privycy paper it may be printed on. As President, Trump is not above the law despite his golden throne from whence he exercises his right of privycy. In The Wizard of Oz, we did not know who the Wizard was as he was hidden from view until later exposed. In contrast, we knew upfront, before he became President, who or what Trump was or wasn't. While Trump became President despite losing the popular vote by almost 3 million, the fact that the Electoral College paved his way means that under the Constitution he prevailed because of his smarts, not only having attended Fordham U and later graduating from U of PA, but graduating via the Electoral College. No, Trump did not need a Phd from Trump U. The Constitution's Electoral College conferred upon Trump its presidency (even if otherwise he might have been a C- student). So under our Constitution it would be oxymoronic for anyone to claim being smarter than Donald Trump, at least while he is President. And Trump, after his presidency, flush with success, may author yet another best seller: "The Art of the Presidency and the Right of Privycy."

Joe said...

I find this blog unfairly anti-Trump.

More penis links please.

Shag from Brookline said...

During the 2016 campaign, Trump said he was smarter than the generals. After his election, he hired - and fired - four generals, proving he was indeed smarter. That Jesuit training Trump was exposed to during his two years at Fordham demonstrated Trump's sense of morality in Trump's recognition of the humanitarian crisis at the border with Mexico. And his real estate skills were sharpened at U of PA's Wharton School, focusing on "location, location, location," e.g., the Mexican border, the Mexican border, the Mexican border. Who needs avocados from Mexico? America needs America First Advocates. Trump is not a smart-Alec. Trump is the reality thing.

Shag from Brookline said...

Some cynics complain that if Trump is so smart, then Trump should reveal his academic records at Fordham and U of PA. But Obama did not produce his academic records. Beside, Trump has street smarts, especially on Fifth Avenue.