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Wednesday, May 05, 2004  

Law: Flemming challenges Schwarzenegger

Talking about pushing the envelope. Fair Use Press has decided to shove the envelope. The chief executive of a blogger's state has misbehaved in a manner that begs to be challenged. In response, someone has stepped forward to do just that. Blogger and auteur Brian Flemming, who is FUP, has the details.

A revealing new mini e-book from Fair Use Press attacks California governor Arnold Schwarzenegger for using intellectual property law as a tool to intimidate his critics. Making its point through parody and ridicule, the book's cover features a 1970's-era nude photo exposing the Governor's under-sized genitalia.

To enrage Schwarzenegger attorney Martin D. Singer, the book also reprints in its entirety a blistering letter by Singer that the lawyer claims is "confidential." Singer has threatened legal action for any republishing of the letter.

The title of this purposefully provocative book is "Sue Me, A***ole." The twin goals of Fair Use Press are to cause the governor and his attorney to regret their sinister abuses of power and to demonstrate to the public that it has a right to criticize public figures.

Download the book right now at


The impetus for the episode is Schwarzenegger's lawsuit against Todd Bosley, a fellow who created a bobble-head miniature of the actor in the governor's seat. Shwarzenegger claims he owns the rights to publicity about himself. Therefore, he says, Bosley's invention is a tortious. Yes, you read that right.

Now seems like a good time to review some First Amendment law. The chorus of outrage that will doubtlessly follow Fair Use's actions will turn on purported insult and injury to Schwarzenegger. However, Schwarzenegger's hurt feelings are not the concern of the law, unless a very high standard of proof can be met. As a well-known B (more accurately D) movie actor, Schwarzenegger has been a public figure for years. When he was elected governor of California, the kind of excess that makes one pray despite being an agnostic, he became a public official. Though many laymen don't realize it, those descriptions matter a great deal.

When a public figure or public official claims he has been slandered or libeled, he must prove the slight is both untrue and maliciously intended. Even if the allegation is untrue, that is not adequate grounds for him prevailing. Sometimes, people are in error when they contribute to discussions. To punish them for those mistakes would cause the citizenry to become afraid to publicly express opinions about issues, including vital political concerns. The seminal case for making a distinction between private citizens and public citizens is New York Times v. Sulllivan, 376 U.S. 254 (1964).

We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable.

It is helpful to revisit the facts of the case.

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department.

A response to Sullivan that recurs is 'why should public persons be treated differently than you and me?' The answer is because they have much more power at their disposal than we do. The officials in Sullivan were using lawsuits against supporters of the civil rights movement to try to silence it. In other words, their official capacity allowed them to tap tax dollars to defend American apartheid. But, anyone who spoke out against them would have been subject to a slander or libel judgment before the ruling in Sullivan. The actions of a governor are also powerful. To offset that imbalance in power, the law allows us to question, or even ridicule, his behavior, liberally.

Scwarzenegger has styled has case against Bosley as protecting his "publicity rights." Novel, but, not convincing. I believe any right to control publicity about himself would apply only to his role as an actor. Furthermore, the role of public official, someone vested with power by government, trumps the role of public figure, in my opinion. It raises the very concern that Sullivan addresses, a government official using power he has been endowed with by citizens against some of them.

There's another galling aspect of the governor and his mouthpiece's performance.

Additionally, Martin Singer even claims a *copyright* on the letter he sent to Bosley. In other words, not only is it forbidden to criticize the governor via caricature, but also one is not even allowed to expose the vicious tone of the threat letters Governor Schwarzenegger employs to enforce that moratorium.

This behavior makes the White Citizens Council types who sued the New York Times appear to be lightweights. Let's support Brian Flemming in his efforts to inform people about their right to more than question authority.

Flemming's weblog has become "Sue Me" Central. Visit it to learn more about the challenge to Schwarzenegger.

11:41 PM