Trump’s Movie Meltdown: A Teachable Moment For Free Speech

Free Speech

from the things-are-not-always-so-simple dept

Donald Trump getting mad at an unflattering portrayal of himself in a movie isn’t that interesting. But how that anger may make people rethink laws against AI recreating real people and the Citizens United case, highlights how gut reactions to these laws may lead people astray.

At Cannes Film Festival, journalist Gabriel Sherman’s independently produced biopic about Donald Trump called “The Apprentice” covers Trump’s rise to fame. The audience gave it a standing ovation, but it didn’t win any awards at the show. There’s also some controversy, as some of the funding came from Trump supporter Dan Snyder, a generally terrible person who’s upset about the film’s portrayal of Trump.

The bigger controversy comes from Donald Trump himself, who sent a cease-and-desist letter to the film’s producers, claiming the film is somehow both defamatory and “direct foreign interference in American elections.” Variety and Business Insider claim to have access to the cease-and-desist, but neither posted it, because they’re both bad at the basics of journalism.

There’s a Streisand Effect here (attempts to suppress the film seem only likely to drive more attention), but what struck me is that (1) it’s happening alongside debates about outlawing AI depictions of real people and (2) it’s reminiscent of the widely misunderstood Citizens United v. FEC case.

Many well-meaning people support the idea of a law to prevent anyone from using AI to represent someone else. However, this would also restrict normal creative output, including parodying famous people or creating critical movies about real people, like The Apprentice.

Historically, films about real people have been allowed, resulting in movies like Oliver Stone’s W. film or the movie about sexual harassment at Fox News, Bombshell. For various reasons, it should be fine to create such a film and take this kind of artistic license under the First Amendment.

The same would apply if filmmakers wanted to use new technologies, like generative AI, to make films more realistic. There may be limitations, such as publicity rights, but it should be severely limited to situations where someone might be misled into thinking the real person depicted in the film endorsed it when they hadn’t. But that’s clearly not the case with “The Apprentice.”

That said, this also takes me back to the Citizens United case, which many falsely think established the idea that “money is speech.” That’s not true. Earlier cases had established that money can be a form of expression.

Citizens United was much more narrowly focused on independent expenditures allowed in elections, specifically about a movie about Hillary Clinton called “Hillary: The Movie.” The film was initially found to violated “electioneering communication” restrictions. The Supreme Court found this result problematic under the First Amendment.

If Citizens United had gone differently, Trump might have a stronger argument against “The Apprentice.” But with that decision in place, it’s not clear that he could stop the film, especially for “direct foreign influence” on our elections.

There was more involved in Citizens United, including just how broad the eventual decision was, but at its heart, it was always a case about whether an unflattering movie about a presidential candidate could be shown close to an election.

I raise these issues because people often judge policy questions based on the complainant and benefits, rather than considering wider implications. In cases of laws preventing a depiction of a famous person without approval and creating films about a candidate close to an election, we should consider the larger picture of free expression, rather than favoring a candidate or party. The same situation may favor a candidate you support, and reveal important details about a candidate you don’t.

Filed Under: biopic, donald trump, election interference, gabriel sherman, movies, the apprentice