For my fellow media lawyers, Donald Trump is our version of the Jelly of the Month Club in National Lampoon's Christmas Vacation. He is, to borrow the immortal words of Cousin Eddie (Randy Quaid), "the gift that keeps on giving the whole year."
Our blog colleagues at The Hollywood Reporter have posted a fascinating analysis of this month's gift: a $5 million breach-of-contract lawsuit against comedian Bill Maher. Trump's claim is based on Maher's alleged failure to live up to an "unconditional offer" made last month on NBC's Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan.”
"I'm not saying it's true," Maher told Jay Leno. "I hope it's not true, but unless he comes up with proof ... I'm willing to offer $5 million to Donald Trump that he can donate to a charity of his choice -- Hair Club for Men; The Institute for Incorrigible Douche-bag-ery. Whatever charity." As Maher pointed out, to laughter from the audience, the color of Mr. Trump's hair "and the color of an orange orangutan [are]the only two things in nature of the same color.
Maher's $5 million offer was a humorous reference to Trump's offer during the last Presidential campaign to donate $5 million to the charity of President Obama's choice if the President publicly released his college transcripts in addition to his passport records before the election. Trump was not amused. According to the lawsuit, he provided Maher with his New York birth certificate (attached as an exhibit to the complaint) to prove his father was a human being, but Maher hasn't paid up.
In an appearance on TMZ live, Trump claimed he filed the lawsuit to defend his parents' honor: "What he said about my father is disgraceful ... and what he said about my mother, who's deceased, was in a certain way, even more disgraceful." Which raises an interesting question that none of the commentators have addressed: do orangutans have legal standing to sue for group libel for Trump's assertion that it would be disgraceful for them to mate with a human?
We leave that pressing issue to the good folks at PETA and instead raise another one that no commentator has yet flagged. The decision of Trump's lawyers to file their lawsuit in California state court creates the possibility that Maher's lawyers could seek to kill the lawsuit by filing a motion to dismiss under California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. That statute allows the court to dismiss a lawsuit at the outset if it determines that the actions challenged in the lawsuit--here, Maher's poking fun at a public figure and his prior political statements--are actions arising from the defendant's right of free speech.
I discussed these issues in my earlier post on The Topps Company's successful anti-SLAPP motion against Buzz Aldrin, who had sued for violation of his right of publicity based on Topps' use of the iconic Visor Shot on the package of its American Heroes trading card series. The Visor Shot is perhaps the most famous space-related photograph of all time--taken by Neil Armstrong of Buzz Aldrin on the surface of the moon (and shown to the left). The Court dismissed Aldrin's lawsuit, finding that Topps' use of the image was in furtherance of its First Amendment rights.
If Maher's lawyers take their cue from Topps, fasten your seatbelts. The Donald is tenacious. To quote Cousin Eddie, "[H]e's got a little bit a Mississippi leg hound in 'im. If the mood catches him right, he'll grab your leg and just go to town."