Laura E. Little (Professor, Temple Law School) and Anja H. Hayes (Student, Temple Law School)
As evidenced by the various initiatives featured on this site, dictators and oligarchs around the world have recently flexed extra muscle to target and silence humor that mocks them. President Donald Trump has embraced that approach, and one can see the consequences in the United States. Some comedians have started to walk on eggshells (or at least make jokes about the eggshells) and mainstream journalists are treading lightly—all in fear that they are one punchline away from a presidential lawsuit or cancellation by their retribution-fearing corporate sponsors. Such is the case with a major television network’s decision to cancel a late-night show featuring the beloved comedian-commentator, Stephen Colbert. Despite CBS’s claim that the decision to cancel The Late Show was financial, critics and Colbert himself accused CBS of terminating the show as an act of retaliation. Further explanations for the network’s ax can be found in the desire to complete a looming merger between the network and a behemoth media corporation as well as from the slow death of late-night TV. But it is lost on no one that the cancellation came on the heels of a quip by Colbert that his sponsor’s decision to settle a defamation suit with Donald Trump was no more than a “big fat bribe.”
With this background and to the delight of many citizens of the United States, a long-revered satirical cartoon show—South Park—started its 27th season soon after the Colbert cancellation with its own mockery of Trump. The show depicted Trump with a lumpy cartoon body topped with video image of his face in precarious positions: Trump in bed with Satan, Trump threatening to sue an artist for an unflattering naked portrait, Trump actually suing the town of South Park for $5 billion dollars, and finally, Trump in full-Monty nakedness in the desert.
Trump was not happy with the show. In typical disparage-the-critic fashion, Trump’s spokesperson responded by calling South Park a “fourth-rate show clinging to relevance.” One might retort by pointing out that Trump’s own reality show was canceled mid-term. But anyone with the filing fee can file a lawsuit. So, the question emerges whether Trump might successfully bring a defamation claim for these depictions. Unless the suit gets a Trump-aligned judge (possible, not guaranteed), the U.S. Constitution’s special protection for parody and for those who criticize public officials provide an enormously high bar for success.
A defamation suit, however, is not Trump’s only avenue of pursuit: he could pressure South Park’s new corporate sponsor—Paramount+—to cancel the show. Fortunately for the South Park brand, South Park Digital Studios, the joint venture behind the animated hit (co-owned by Paramount and Park County), has entered an exclusive five-year license deal with Paramount+, reportedly worth $1.5 billion. Trump would need to bring significant coercive influence on Paramount+ to overcome that kind of financial incentive for the megacorporation.
But another option presents itself. Recall that the South Park presentation included Trump’s actual face (yes, his real face) superimposed on various depictions of his lumpy body in compromised situations as well as a deepfake video of the president fully in the nude. One might imagine Trump arguing that this violated his privacy under the recently enacted Take It Down Law—a new Trump-supported anti-revenge-porn federal statute. This statute criminalizes non-consensual online publication of intimate visual depictions, including deepfakes, of identifiable individuals. This theory, however, also must meet a high threshold for success, given that—as a criminal prohibition—the statute requires intent to share explicit imagery. Part of the statute requires that the defendant shared the imagery with intent to inflict harm. In the alternative, the statute allows for liability where the defendant simply shared the visual intimate depiction of an “identifiable individual” knowingly. Presumably this latter, lower standard of intent, derives from the concept that knowingly sharing intimate explicit imagery so obviously causes an offensive invasion of privacy as to merit criminal liability. Whichever part of the statute applies to the South Park situation, one piece of evidence exists that could help establish criminal intent: Paramount+ reportedly vetted and approved the episode with the apparent caveat that South Park must blur or pixelate the depiction of Trump’s (yes, very small) penis on the cartoon body, but South Park reportedly refused to do so. Despite this salacious tidbit, the general comedic goal of South Park as well as the constitutional protection for parody both mount a difficult barrier for proof of intent to harm.
So, the question emerges: Did South Park pull off a tour de force supported by the glories of U.S. constitutional protections for parody, satire, and free speech?
One might argue that—if South Park did pull this off without legal consequences—its success was largely a creature of circumstance. Many point out that Donald Trump jokes are a worn-out trope—about as funny as rinse-and-repeat Dad jokes. Indeed, South Park has often channeled its humor away from a roast of the usual ‘orange’ suspect. What then are the circumstances that might give rise to South Park’s apparent success in creating piercing parody and satire? First is timing: the recent signing of a 5-year deal with Paramount+ and the overwhelming public outcry against the Colbert cancellation. Second and certainly not least: capitalism and profit motive. Precisely because of their recent Paramount+ contract, the South Park creators have money, big money on their side. But let’s not be too hasty in dismissing the larger importance of what South Park has done. The creators’ joyful disregard of decorum and threats is worth crediting. They remind us during these extraordinary times in the United States that parody and satire should be uncomfortable and inappropriate. It is only then that this mode of humor helps to maintain honesty in a democratic government of the people.