A picture has been circulating on the Internet among Democratic and liberal posters that purportedly showed Republicans praying at a gold-colored statue of former President Donald Trump at the 2021 Conservative Political Action Convention (CPAC). The statue was mocked by critics as “the Golden Calf.” Figures like Joel Stein, who wrote for the Los Angeles Times, proclaimed that “the fall of Rome was this embarrassing.” Former Democratic congressional candidate Adam Christensen circulated the photo as did others with similar mocking notations. Another poster Mo Bella wrote Caption “this photo taken today of CPAC’s evangelical leaders. Yes, they are praying to a golden statue of their holy insurrectionist.” The problem is that the photo was fake. The question is whether those depicted could sue for false light in such a depiction.
The original photo was taken with the “Evangelicals for Trump” group dated Jan. 3, 2021 and included evangelical figures like Pastor Paula White-Cain. The posts were later flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed.
Stein acknowledged his re-posting of a fake picture and promised to take it down but stressed the the statue itself was real — evading the obvious point that he was ridiculing these (also real) people as worshipping Trump in the literal sense. Instead, he simply noted “The statue is real. It is difficult but important to stick to facts amid the insanity of American politics.”
Even that degree of recognition seemed beyond the ability of figures like Christensen who admitted later that the photo was fake but insisted that the “intent” in the photo was “clear.” He then attacked Trump supporters again: “White Evangelical support is near an all time high going into CPAC and after the event rolling this idol into the conference it’s clear that their ‘support’ is close to going to the next level.” That sounds a lot like “sure it was a fake but it is really true, right?” There is a great deal of difference, particularly for religious people, between praying with Trump and praying to his golden idol.
Many of those re-posting this image are the same people pushing to ban others from social media for spreading “fake news” or “disinformation.” Christensen showed how easy such hypocrisy can be addressed. He insisted that the photo was a “visual representation of what I see in Conservative media circles as well as those that I grew up with.”
The problem however is that while the picture was fake the people in the picture were not. The photo suggests that these individual religious leaders prayed to a golden image of Trump — a clear reference to the Golden Calf in the Old Testament. As discussed in Exodus, Israelites had a change of heart after Moses went to Mount Sinai to receive the Ten Commandments. In direct defiance of God, they built a “molten calf” and they declared: “‘This is thy god, O Israel, which brought thee up out of the land of Egypt” (Exodus 32:1–4). They “offered burnt-offerings and other gifts. Moses pleaded with God to spare them for such sin.
It is a defining passage for many religious people — the line between faith and sin; between worship and idolatry. To show not just religious persons but religious leaders praying to a Golden Calf is the ultimate insult and defamation.
In many states, any lawsuit would be framed as defamation. They are not named in the photo but they are all widely recognized public figures. As such, they would fall under on Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
The Supreme Court mandated a higher standard to protect freedom of speech and the free press. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, they just must show either actual knowledge of its falsity or a reckless disregard of the truth.
However, a more direct claim (if recognized in a given state) would false light. That tort requires a publication that puts a person before the public in a false light that is highly offensive to a reasonable person. It also requires a showing that the poster or publisher knew of or acted in reckless disregard as to the falsity of the publicized matter.
Obviously, the person who created this image knew it was false. That person may have meant the picture as satire and made the meaning clear (Note there can still be appropriation of a person’s image or likeness for commercial purposes). It is not clear where this image originated.
The use of such a picture is a common peril in the age of social media. Many people knowingly post false stories or picture knowing that they will be replicated and reposted. As more people post an image, the more it appears genuine. For others, there is little desire to confirm whether it is true or not if it fits a narrative. There is an old expression in the media that there are certain “facts too good to check.”
I have written about such mythologies in the law that are repeated for years without question.
It seems unlikely that a lawsuit would emerge against these posters, but the controversy does show how the campaign to bar individuals for disinformation is often selective and biased in its applications. That was the subject of my recent testimony in the House on efforts to curtail cable access and mandate other forms of media censorship.