The Volokh Conspiracy

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Free Speech

"Preparing for the 20th Anniversary of the Streisand Effect: Cooley v. Afroman"


A very interesting post by Paul Alan Levy (Public Citizen, Consumer Law & Policy Blog), which I reproduce with his permission:

It was almost twenty years ago that Barbra Streisand filed a lawsuit that attempted to block access to a photograph of her oceanfront estate, bringing unwanted attention to the photo and leading to her being enshrined by Techdirt's Mike Masnick in tech/legal terminology as the progenitor of "the Streisand Effect."

Now we have Cooley v. Foreman.

Several police officers executed a search warrant at the home of a musician named Joseph Edward Foreman, who performs under the name "Afroman."  Outraged by what he considered rough treatment of his possessions and the lack of justification for the search, he created two songs about the raid and recorded them in music videos, consisting mainly of footage of the search, entitled "Will You Help Me Repair My Door" and "Lemon Pound Cake"  (to the tune of "Under the Boardwalk"). He also posted images on social media of the officers who conducted the search and printed Tshirts and other merchandise containing photos of the police officers and of the judge who had signed the search warrant, bitterly complaining about the officers' conduct in searching his house and asking that the judge be voted out of office. He promoted these to his fans who, it appears, responded eagerly.

Police officers may be protected by qualified immunity against claims for damages for most of their misconduct, but they are not immune from public criticism.  In an apparent effort to create such an immunity, and represented by Cincinnati lawyer Robert Klingler, the police officers have now sued the musician and the distributors of his music, alleging a violation of the Ohio right of publicity and the common law right of privacy. In addition to highly critical comments about the police officers, the complaint alleges that an Instagram post includes vile references to the one female officer on the raid; I could not locate the original to verify that allegation. The complaint does not allege a claim for defamation, but it does allege false light.

At the time of suit, the police officers had been the subject of unwanted attention among Afroman's fans, but the utter hubris of the lawsuit resulted in widespread coverage in the mainstream media, including the New York TimesNPR,  CBS News,  and an AP story  that has appeared widely. Many of the stories link to the videos, publicizing them further. This is, indeed, how I heard of them.

There is a serious side to this case – Ohio is, after all, the state whose right of publicity laws produced Zacchini v. Scripps-Howard, which rejected a First Amendment defense to a lawsuit complaining about a news broadcast of a "shot from the cannon" act for which the stuntman conducting the act charges. Plainly, this case is different – plaintiffs' raid was not a commercial performance but an action of the government, and the complaint gives no reason to believe that plaintiffs' appearance in uniforms has commercial value, as required for application of the Ohio right of publicity statute.  Moreover, several of the statutory exceptions apply, including the exceptions for "dramatic," "historical" "audiovisual" and "musical" works, for material of political or newsworthy value, and for reporting on issues of public interest; there is also a general First Amendment exception. Indeed, many cases recognize a First Amendment right to record the police.  Broadcasting the resulting videos and still images is likewise protected.

But I also wondered whether the lawyer who filed this case, not to speak of his clients, had thought about whether the suit would simply bring even greater attention to the clients' participation in the raid. To be sure, these plaintiffs have already taken more of a public beating than Streisand had when she filed her lawsuit, but even so I thought of the plight of James Amodio, who filed a lawsuit over mild criticism of his client in an eBay review without considering the destructive impact that the litigation would have on his client, and who ended up having to pay part of the award of sanctions for frivolous litigation.  Amodio later acknowledged that he had got in over his head; we required him to pay only a small part of the sanctions, even though his client was bankrupt and apparently could not satisfy the judgment.

I tried to raise these questions with the police officers' lawyer but he angrily refused to engage, except to note that the public reaction to the lawsuit was hostile.