As a lawyer by day and an author at night, I’ve had times when the realm of fiction intersects with the realm of reality. One example, gleaned from my years representing newspapers and publishers, is the law of libel, where the jury must decide whether the allegedly defamatory statement is true or fiction. If true, the plaintiff loses. If fiction, the plaintiff wins.
Occasionally, however, the dividing line between fact and fiction in a libel case is more subtle, namely, is the statement, though fiction, one that a reasonable person would believe to be fact. Huh?
The best example is the lawsuit Rev. Jerry Falwell filed against Larry Flynt over a parody ad that ran in a 1983 issue of Hustler magazine. The ad was modeled on a series of Campari liqueur ads in which a celebrity talked about his or her “first time”–which turned out to be the first time tasting Campari. Here’s an example featuring Jill St. John.
The United State Supreme Court described the Falwell ad parody as follows in its unanimous opinion in Hustler Magazine v. Falwell:
The inside front cover of the November 1983 issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times.” Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of “first times.” Copying the form and layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and drafted an alleged “interview” with him in which he states that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse.
Although the lawsuit reached the Supreme Court on a different legal theory, Falwell’s libel claim died in the trial court, where the jury found that no reasonable person reading that ad would have believed that it was a real interview of Rev. Falwell or that his first sexual experience was with his mother in an outhouse.
Which brings us to the Donald and an alleged sexual rendezvous of a somewhat different nature. In the Fall of 2012, at the height of the last Presidential campaign, Trump jumped into the “birther” controversy with what he labeled his “October surprise”: “I have a deal for the president,” he announced, “a deal that I don’t believe he can refuse, and I hope he doesn’t. If Barack Obama opens up and gives his college records and applications, and if he gives his passport applications and records, I will give, to a charity of his choice—inner-city children in Chicago, American Cancer Society, AIDS research, anything he wants—a check, immediately, for $5 million.”
A few weeks later, comedian Bill Maher told Jay Leno on The Tonight Show that he had his own “October surprise”: he would pay $5 million to Trump’s charity of choice (which, according to Maher, was the Men’s Hair Club) if Trump provided a birth certificate proving that he’s not “spawn of his mother having sex with orangutan.” True to form, Trump immediately had his lawyer send Maher a copy of his birth certificate with a letter demanding the $5 million. As the letter stated, “attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan.” When Maher ignored the demand, Trump filed a $5 million lawsuit for breach of contract. Although the rest of the world understood that Maher’s offer was a joke, Trump insisted otherwise in an interview of Fox News: “I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact, he was nervous when he said it. It was a pathetic delivery.”
Amidst much derision, Trump withdrew his lawsuit a few weeks later. His lawyer, however, insisted that the withdrawal was only temporary, claiming that it had “been withdrawn to be amended and refiled at a later date.” That was more than 2 years ago. The lawsuit has not yet been refiled.
And thus a lesson in fact versus fiction, compliments of the Donald. And perhaps a bigger lesson in the Donald World versus reality. Indeed, if that lawsuit is any indication, the Donald has some personal challenges ahead of him before he tries to “make America great again.”