Rep. Lauren Boebert Decides To Streisand Parody Site Making Fun Of Her, Threatens To Take Legal Action Against It

Failures

from the supporting-the-1st-Amendment dept

Rep. Lauren Boebert is one of the new crew of elected Republicans who claims to be “pro-Constitution” and “pro-freedom” but when you get down into the details, it seems that the only part of the Constitution that matters to her is the 2nd Amendment. The website for her campaign proudly states that she’s “Standing for Freedom” and is “Pro-Freedom, Pro-Guns, Pro-Constitution.”

You do have to wonder if she skipped over the 1st Amendment in her rush to defend the 2nd, however. This morning, her press secretary Jake Settle (who came to her office after working on Mike Pence’s communications team) sent quite a fascinating threat email to the operator of a Lauren Boebert parody site, TheLaurenBoebert.com.

The operator of that site, comedy writer Toby Morton, tweeted an image of the letter this morning:

I have since seen the original email that does, indeed, appear to come from Jake Settle. I have emailed Jake to confirm his side of the story, and asked him to answer a few questions as well. At the time of writing he has not responded. The email says the following:

To whom it may concern,

This website (https://www.thelaurenboebert.com/) needs to be taken down since the photos on here are copyrighted property of the U.S. Federal Government. They are the property of the office of Congressman Lauren Boebert, and your use of them is unauthorized and illegal.

Additionally, the entire website is a defamatory impersonation, and it goes against relevant terms of service and U.S. law. Please remove immediately or face further action.

Sincerely,

Jake Settle | Press Secretary
Rep. Lauren Boebert (CO-03)

If you’re wondering what the parody site looks like, it does use the same main image as Lauren’s official Congressional site (different from her campaign site). Here’s what the mobile version of the parody site looks like:

And here’s her official Congressional site (note the same image):

The parody site honestly doesn’t have that much more on it. It shows a couple Boebert tweets, then has links to some other parody sites of wacky Republican members of Congress and Senators, and says that it’s a parody site (which isn’t just a talisman where saying it automatically makes it true). Update: There actually is a bit more on the website that I had missed on first pass: under the “blog” tab, there are some posts that include a number of images of Boebert. It is extremely unlikely that the copyright to any of those works are held by the US government. It is possible that some are held by Boebert herself (unclear if her Congressional Office would hold the copyright), but we’ll get there.

Before we even dig into the legal analysis of Settle’s threat letter, let’s just make one thing clear: whether or not there’s a legal leg to stand on, Settle’s threat is stupid. All this has served to do is to Streisand a parody site that likely wasn’t receiving much if any traffic prior to this. Indeed, Morton has confirmed to me that the site hadn’t received much traffic, but now tons of people are looking at it. At best, Boebert comes off looking like a thin-skinned insecure whiner who can’t take a mild parody. At worst, she comes off as a censorial bully who has no respect for “freedom” if it’s associated with the 1st Amendment.

As for the legal issues… Settle’s email is a mess of confusing concepts, so it’s not even remotely clear what any actual legal claim might look like (which is not to say there are none — just that Settle’s email most certainly does not lay out a clear theory of one). First up, the copyright claims are a mess.

This website (https://www.thelaurenboebert.com/) needs to be taken down since the photos on here are copyrighted property of the U.S. Federal Government. They are the property of the office of Congressman Lauren Boebert, and your use of them is unauthorized and illegal.

It’s not entirely clear how they could be both the “copyrighted property” (which is not a thing) of “the U.S. Federal Government” and “the property of the office of Congressman Lauren Boebert” at the same time. There’s only the one image on the front of the site as far as I can see, and it might be true that Boebert holds the copyright to it. A lot of people responded to Toby’s tweet and falsely claimed that since it’s on a government website it’s public domain. That is not true. US copyright law does say that works created by the government are in the public domain and not subject to copyright. But (and this is important) that does not mean every work the government uses or posts to its website is automatically in the public domain. Other copyright holders can transfer a work to the government, and the government could then retain the copyright.

In this case, it seems highly unlikely that the work was created by the federal government. It is quite likely that it was created by Lauren Boebert’s campaign or someone closely associated with Boebert and the campaign. There are then all sorts of possibilities about the copyright. It could be held by the photographer. It could be held by the Boebert campaign, or by Boebert herself if the copyright was assigned to her. In theory, it could have been assigned to the federal government, but that seems highly unlikely.

The claim that it is the “copyrighted property” of the US government seems like it is likely nonsense. The claim that its held by Boebert’s office is not entirely crazy. However, even if that were true, Morton would have a very strong fair use argument, seeing as that he’s set up a parody site. Parody is one of the quintessential examples of fair use. As the Supreme Court has said, the context of the use of the original work in a parody does matter, so it’s not automatically fair use.

In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original.

So, perhaps there’s some argument somewhere that would persuade a court that this is not fair use, but that seems unlikely. The fact that this is parodying a politician, and criticizing or even mocking politicians is part of what the US considers an important element of our 1st Amendment free speech protections, it seems highly likely that any court would come down on the side of fair use should a copyright claim be brought.

As for the images on the “blog” portion of the site, there is perhaps an argument that some of those copyrights are held by Boebert (certainly not the federal government). Could those lead to a lawsuit? Very possibly, but if that was the case, the copyright holder should have sent a takedown notice first. Whether or not those images are fair use is a tougher call. They are used for criticism and commentary, which is part of the fair use analysis, but there isn’t that much commentary on them, and so it really would be up to the court where this landed. Still, at the very least, it doesn’t make much sense for her press secretary to be sending out that threat letter, though.

As for the other claim of “defamatory impersonation” well…

Additionally, the entire website is a defamatory impersonation, and it goes against relevant terms of service and U.S. law. Please remove immediately or face further action.

“Defamatory impersonation” is not a thing. Defamation is. But it’s difficult to see anything on the website that would qualify as a defamatory statement of fact. The only real statements on the website about Boebert are calling her a “racist” and a “Qanon sympathizer” and both of those are either protected opinion, or substantially true. Either way, there’s simply no way any defamation claim here would meet the actual malice standard necessary for defamation of a public figure (and as a member of Congress, Boebert is undoubtedly a public figure).

So, even if there is a legal claim buried in here, it’s difficult to see it getting very far. But, either way, just sending such a threat is inherently stupid.

Filed Under: congress, copyright, defamation, free speech, impersonatoin, jake settle, lauren boebert, parody, streisand effect, toby morton