A New York judge dismissed on July 7 a lawsuit filed against a prominent meme creator by the parents of two toddlers, footage of whom was used in a meme shared by then-President Donald Trump in 2020.
New York State Supreme Court Judge David Cohen granted motions to dismiss the case brought by the Trump campaign and by Logan Cook, a prolific creator of viral memes who supports Trump.
The meme in question used a video of one toddler running away from another overlain with a CNN logo and chyrons reading “Terrified Toddler Runs From Racist Baby” and “Racist Baby Probably a Trump Voter.”
The screen then fades to black and a message reading “what actually happened” after which an unedited video in which the toddlers hug in the end appears. The idea of the meme was to show how the media manipulate the truth to attack Trump and Trump voters.
The video ends with text reading: “America is not the problem… Fake news is. If you see something, say something. Only you can prevent fake news dumpster fires.”
Trump shared the meme on Twitter on June 18, 2020. It was viewed 20 million times before Twitter removed it in response to copyright violation complaints. On June 23, 2020, Twitter banned Cook, who went by the moniker Carpe Donktum, from its platform. Cook continued to share the video on other platforms, including Instagram.
The parents of the toddlers in the video filed a lawsuit on Sept. 17, 2020, alleging that Cook and the Trump campaign violated a New York civil law by using the video for advertising purposes without consent, thereby inflicting pain and mental anguish. The parents also alleged that Cook and Trump intentionally and negligently inflicted emotional duress and breached their duty to act reasonably.
The Trump campaign argued that the meme was a parody that “unequivocally involves a topic of significant public concern.” The campaign further argued that the video is protected because it was satirical and was not directed at any of the plaintiffs.
Both Cook and Trump argued that the use of the video is protected by the First Amendment and that the plaintiff’s action was a strategic lawsuit against public participation, among other arguments.
The judge dismissed some of the claims by concurring with the defendants that the video is newsworthy and thus protected against some of the plaintiffs’ claims.
“It is common knowledge that one of the principal tactics of Trump’s presidential campaigns, as well as his presidency, was to incessantly attack the mainstream media as purveyors of ‘fake news’, including his claim that the media exaggerates the extent of racial division in this country,” Cohen wrote.
“Thus, the video’s references to ‘fake news’ and its depiction of race relations, however distorted, are clearly newsworthy and, thus, the plaintiffs are not afforded the protections of CRL §§50 and 51,” the judge added, referring to the relevant New York civil law statutes.
The Epoch Times requested comment from Michael Maggiano, the attorney representing plaintiffs Michael Cisneros, Alex Hanson, Erica McKenna, and Daniel McKenna.
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