Exhibit A: Nevada Republican Party mailing
The New To Las Vegas world headquarters today received a political flyer in the mail from the Nevada Republican Party. It plugged the re-election of President Donald J. Trump on the clearly false grounds that he’s done a terrific job fighting the coronavirus.
Except that the two-sided flyer sported a far larger photo image of Dr. Anthony S. Fauci, the Federal Government’s leading expert on infectious diseases. Along with this quote attributed to him, “I can’t imagine … anybody could be doing more.” An image of the flyer is nearby.
Fauci has gone on national TV to complain about the use of a video clip of him saying this in national Trump advertising, noting he wasn’t talking about Trump himself but rather the White House coronavirus task force. He also noted he said this way back in March, when coronavirus was a fraction of the disaster it has become. The Trump political organization essentially told him to pound sand.
I have an idea for the good doctor, especially if Trump loses his re-election bid. Fauci should consider suing the Nevada Republican Party right here in Las Vegas for its false advertising. There’s no shortage of competent plaintiff lawyers in Las Vegas. I’m also not sure how many good lawyers work for the local GOP, given how many cases its operatives have lost over the years (the latest was just today). Fauci might have a very interesting lawsuit.
Allow me to explain.
Fauci’s lawsuit shouldn’t be for defamation. That’s almost impossible for a public figure to win, especially in the context of a political race. Despite the deception by the Trump campaign, Fauci did in fact utter those words, during an interview with Fox News. And he certainly is a public figure.
Rather, Fauci should consider suing for the tort called invasion of privacy. It’s been recognized for decades by the Nevada Supreme Court. There are several different versions of this tort. I’d say two of them–appropriation of the name or likeness of another, and publicity unreasonably placing another in a false light before the public–fit what the Nevada Republican Party did to Fauci to a tee.
That Fauci’s name and likeness were taken–or appropriated–without his consent is a given. Nobody in the GOP has disputed Fauci’s assertion that the Trump camp plastered his mug on its advertising as though it was a political endorsement without his consent. There might be an interesting debate over whether the Trump side might have a fair-use or even First Amendment right during a political campaign. But I would think any fair-use right would dissipate once it is shown that Fauci wasn’t talking about Trump personally as the advertising clearly implied.
Still, invasion of privacy–false light is probably the better theory for Fauci. According to various legal experts, here are the three main elements:
–Publicity given by a defendant (the GOP) that casts the plaintiff (Fauci) in a false light before the public. Since Fauci says he is an apolitical person who never in his life endorsed a political candidate, I’d call this a given.
–A false light that is highly offensive to a reasonable member of the public. It wouldn’t be hard to argue that it is outrageous for a candidate to falsely imply a political endorsement by another. But this might also turn on public opinion of Trump.
–Proof that the defendant knew the publicized matter was false, or did so little research that the publicity was reckless. I’d also call this a given.
If Fauci decides to sue, the offending mailing I got conveniently lists the address for service: 2810 W. Charleston Blvd., #69, Las Vegas, NV 89102.
Aside from legal vetting, how competent is the Nevada Republican Party, which hasn’t won many elections of late? I received the mailing days after I voted by mail. So the money spent reaching out to me was completely wasted by the GOP.
I welcome comment on this post from anyone. This includes Fauci, the Nevada Republican Party and Las Vegas lawyers looking for work.
Meanwhile, the average of the last three credible polls in Nevada have Democrat Joseph R. Biden Jr. up by about 6 points.
Rich, not retired. And I’m still a member of the New Jersey bar (Pennsylvania, too). But thanks for the kind words.
Incisive comment. Fair and on point. Readers may not know that Barrett, in addition to being a nationally published journalist for 35 years before his retirement move to Las Vegas, is also a law school grad and was a member of the New Jersey Bar, although he never practiced law. So when he writes on legal matters such as defamation, he knows more than your average blogger. Keep it up, Bill.
Good! And I hope someone sends Fauci this advice. I have an artist friend who did a portrait of him and the people who work for Fauci and were very happy to receive it as a gift on his behalf.