Recently, the fashion company Balenciaga actively sought public recognition for its severing of ties with Twitter. The move came early in the campaign against Elon Musk for attempting to restore free speech protections on the site. Now, Balenciaga is under fire for an advertising campaign featuring children with Teddy Bears in BDSM outfits. As part of its effort to deflect claims of sexualizing children, the company is filing a $25 million lawsuit against the producers of the ad campaign. The filing is particularly interesting because it focuses not as much on the BDSM or bondage bears being marketed by Balenciaga, but the inclusion the image of a child pornography court ruling. The company, however, could face some significant legal challenges over its own role in the campaign.
The campaign led to an immediate global backlash:
Alison H.Centofante
@AlisonHowardC
“The Balenciaga ad is disgusting. Toddlers posing with BDSM sex toys and alcohol. Hiding in plain sight a Supreme Court case involving a federal child porn law… Stop sexualizing kids to sell your ugly overpriced crap. #Balenciaga”
The company was also criticized for including images of books in other pictures by Michael Borremans, an artist known for his use of nude children and occult rituals.
We are sorry . . . sort of
Balenciaga issued two apologies. The company notably did not apologize for marketing the sexualized, BDSM bears. Rather, the company apologized for featuring its “plush bags” with children.
“We sincerely apologize for any offense our holiday campaign may have caused. Our plush bear bags should not have been featured with children in this campaign. We have immediately removed the campaign from all platforms.”
What the company does not explain with its first apology is why this is clearly outrageous but was still approved by the company.
Most major campaigns are approved by corporate executives. No major company simply gives contractors carte blanche on releasing images and marketing campaigns. Presumably, Balenciaga executives were shown the campaign in advance and liked it. If so, they saw no problem with children marketing bondage bears.
The second apology concerned the bizarre inclusion of a Supreme Court opinion in one of the images. Peaking out from a pile of objects on the table is the corner of the 2002 opinion in Williams v. United States, where the Court upheld a federal criminalization of the pandering and solicitation of child pornography.
There has been no explanation of why someone took it upon themselves to include the opinion. Ironically, the opinion upheld the right to prosecute those who pander or spread images deemed pornographic. The Balenciaga images are clearly not pornographic but they were immediately denounced by many for the use of children selling bondage bears.
Orphan Images
It is often said that “success has many fathers, failure is an orphan.” That certainly appears the case of this campaign, where no one seems to be taking ownership of the images.
Balenciaga has a reputation for its hair-triggered virtue signaling, as shown by its eagerness to join the media flash mob against Twitter. Now, the company is struggling to contain the damage by blaming everyone except apparently the photographer.
Gabriele Galimberti insisted on Instagram that he was not responsible for the items displayed in the photos. Yet, while he may not have realized the subject matter of the opinion, he was fully aware that he was shooting children holding BDSM bags. The suggestion is that he simply pushes a button or has no independent judgment on the image. Presumably, there are a host of racist, antisemitic, or other offensive images that he would not shoot. Marketing sexualized, bondage products with children appears not to be among those images.
The lawsuit is directed against the production company North Six, Inc. and set designer Nicholas Des Jardins. The company seeks “redress for extensive damages defendants caused in connection with an advertising campaign Balenciaga hired them to produce.”
The filing claims that North Six and Des Jardins included the images of the court docs not only without its knowledge but with “malevolent or, at the very least, extraordinarily reckless” purpose. It claims economic damages from being “falsely and horrifically associated with the repulsive and deeply disturbing subject of the court decision.”
The Theory of Liability
According to the filing, the image of the opinion was enough to cause damage to its corporate image because “members of the public, including the news media, have falsely and horrifically associated Balenciaga with the repulsive and deeply disturbing subject of the court decision.” Thus, North Six and Des Jardins would be liable for the “association” produced from the inclusion of a partial image of a Supreme Court opinion, an image that requires considerable magnification to be able to discern as a viewer.
The filing does not expressly name a cause of action beyond saying that the campaign was “inexplicable,” “malevolent, or at the very least, extraordinarily reckless.”
There could obviously be contractual claims. However, the filing sounds like a negligence-based action. Once again, the question is Balenciaga’s own possible review and approval of the campaign. The company could say that there was no reason for its staff to zero in on the tiny images of the papers on the table, though some would say that every part of such an image should be scrutinized. A jury might also balk at the claim shock when the campaign clearly featured children marketing bondage bears.
In the end, North Six and Des Jardins were contractors working for Balenciaga. That does not mean that liability is out of the question. It does make it more difficult. There is a common legal maxim, Volenti non fit injuria, or “to a willing person, it is not a wrong.”
Companies are generally liable under respondeat superior, or claims “that the master must answer” for actions taken by employees in the scope of their employment. The company can argue that these are independent contractors, not employees, but they must still act under contract in terms of content and approval by the parent company.
In some ways, the filing reads like a bizarre twist on “negligent entrustment” actions. That is usually where the company is sued by a third party for the actions of an employee or contractor. Here the company is basically arguing that it negligently entrusted these contractors with marketing and it was then harmed as a result of that entrustment. That may prove a tad too neat for a jury.
Of course, Balenciaga could view the filing as more of a public relations effort to shift blame rather than any real effort to secure damages from its own contractors.
If Balenciaga is looking at the filing as part of some public relations campaign, it may not want to pursue it for very long. Discovery will allow these contractors to depose Balenciaga officials on their own knowledge and approval of a campaign using the children to market bondage bears. That could erase any gains that Balenciaga achieved in this counter campaign.
Here are the notice and summons.
OT:
Perhaps Professor Turley has this Yale event on his radar. It would be fascinating if he were to attend virtually or otherwise, and later comment
Bravo to these Federal Judges. Sour grapes for Reuters and Heather Gerken, Dean of Yale Law
Is Free Speech Dead on Campus?
Featuring Judges James Ho and Elizabeth Branch; Moderated by Akhil Reed Amar
Time & Location Nov 30, 4:20 PM – 5:20 PM EST
WLH 116, 100 Wall St, New Haven, CT 06511, USA
https://www.buckleyprogram.com/event-details/is-free-speech-dead-on-campus
—-
(Reuters) – Two prominent conservative federal appeals court judges who have been boycotting hiring Yale Law School students as law clerks to protest “cancel culture” at the school plan to speak at the university next week about whether free speech is “dead on campus.”
U.S. Circuit Judges James Ho and Elizabeth Branch, both appointees of former Republican President Donald Trump, are scheduled to appear at an event hosted by the William F. Buckley Program at Yale University on Nov. 30.
The event is titled “Is Free Speech Dead on Campus?” and is separate from a proposed event the judges agreed to speak at in January at the invitation of Yale Law School dean Heather Gerken.
This is the guy that Joe Biden thinks should work in his administration. https://pluralist.com/new-department-of-energy-official-is-a-drag-queen-kink-lecturer-and-fan-of-bestiality-opinion/. The government performs intensive investigations of prospective employees. I guess this guy was exactly what they were looking for.
Through them all in the clink.
They said that CRT is not being taught in our schools. They said that they were not teaching our children about sex. They said that that were not grooming our kids. Now we have a teddy bear that displays sexual domination and a Supreme Court decision against pedophilia. As usual they do their best to secretively hide their message. In this case they just couldn’t resist sending a message to their fellow groomers. They now enjoy employment by the Biden Administration. It’s not hard to see that they feel emboldened because the have been.
Who is “they”?
Anonymous, they is you!!!
Anonymous, hear is your answer. The they is you. You denied CRT. You denied that sex was being taught to 3rd graders. You have denied that the teaching of oral sex is being taught to 7th graders. You denied that abortions are being performed on babies in the ninth month of pregnancy. The they is you and you wear it proud.
TiT,
“It’s not hard to see that they feel emboldened because the have been.”
Well said.
Wokeism at it’s best.
They claimed of fascists coming out of the wood work with the election of Trump.
They were correct, just not the way anyone envisioned it.
See this one: ‘Kick non-woke patients to the curb’? Mass General Brigham speech code includes blacklist on care
https://justthenews.com/nation/free-speech/kick-non-woke-patients-curb-mass-general-brigham-speech-code-includes-blacklist
Following the view that a baker must bake same sex marriage wedding cakes and website designers must create websites for same sex weddings, does the photographer here have the legal right to decline due to content? I would say absolutely but it would appear many would not.
Gimpsuit
Is there no better indication of the devolution of Western culture? We aren’t going to make it if this is one of our major concerns within our legal system.
This, perhaps, might pose a larger concern for our legal system?
” The arm of the American Bar Association that accredits U.S. law schools on Friday voted to eliminate the longstanding requirement that schools use the Law School Admission Test or other standardized test when admitting students.
But under a last-minute revision, the rule change will not go into effect until the fall of 2025—giving law schools time to plan for new ways to admit students.
The ABA’s Council of the Section of Legal Education and Admissions to the Bar overwhelmingly voted to do away with its testing mandate after years of debate and over the objections of nearly 60 law school deans who warned such a move could harm the goal of diversifying the legal profession”
https://www.reuters.com/legal/legalindustry/aba-votes-end-law-schools-lsat-requirement-not-until-2025-2022-11-18/
We are at a point where we must face the fact that affirmative action and meritocracy do not mix. We need to decide whether we can function under the misconception that everyone is equal OR determine that you must prove your abilities by passing a stringent muster. Do we want the best or the most whiney?
It does back to the guarantee of equality v. equal outcomes, does it not? Personally, I believe meritocracy is dead. Happy to be rounding the far turn now rather than face the world that’s coming.
Mary,
I think we will see a divergence of society.
Those on the left, comfortable in their wokeness ignorance, lacking what used to be common sense things like reading, writing and math.
And the rest of us who still value things like meritocracy, wanting the best of the best or even the opportunity to strive and succeed.
Recent numbers have shown that parents are looking to alternatives to public schools like charter schools, private schools and even home schooling.
Of course I expect the left to attempt to insert their wokeism by mandating them into school curriculum.
Alma Carman,
What do you get when you have a loud minority of a country doing everything they can to reduce everyone to the lowest common denominator?
More importantly it will increase the number of morons who are lawyers.
Regardless, even ignoring politics it is past time to get organizations like the ABA out of this.
I am an architect – and the AIA has been a serious harm to the profession through my lifetime.
I am also a software developer – and I am thankful we have no professional organization certifying an lobbying for us.
Same goes for the AMA. Just ask any doctor you respect and they will tell you that for a long time the AMA has been doing the left’s bidding in healthcare.
You are correct, Mary. I think it was in the 80s that the AMA made a private deal with the US government regarding the code numbers. Financial control over this information was given exclusively to the AMA which accepted greater government control. The AMA gets a rake-off from all the books of code numbers and their explanations. My understanding is that such rules are usually given for free (by law?), and that is one of the reasons the books cost so much. Physicians, hospitals, and others cannot function without these books.
Fees from these books keep the AMA afloat, not the membership participation fees. Actual AMA membership is very low, and higher numbers of academics, students, residents, and wannabe medical politicians exist than in the practicing physician population.
Same thing happened with the American Statistical Association. After many years, I cancelled my membership in 2020 when the initiatives focused on changing the name of anything (including coefficients and statistical tests) that had the names Pearson, Fisher, Galton, or various other white males because racism. The ASA statistician of the month feature was either a transgender person (whose statistical accomplishment were barely covered even though they were often notable) or a black woman. No more Asians or white people anymore, ever. ASA is useless now whereas as it was great as recently as 10 years ago.
To the extent that any of these organizations ever had merit, they have over time become corrupt.
The most fundimental problem is not with professional groups.
It is with professional groups that can excercise state power.
That control licensing, accreditation.
That lobby for laws favoring their profession.
Nips for tots???
tion, it’s more like no nips for tots.
These people not only disgust me–they frighten me. They are hellbent on destroying our babies, both in the womb and out. But why??!!!
Was their innocence destroyed? If they lost theirs, perhaps they are out to take innocence away from everyone else? 🙁
“Gabriele Galimberti insisted on Instagram that he was not responsible for the items displayed in the photos.”
The decadent leftist was just following orders, folks–sounds like the Nuremberg defense.
If people keep voting for these creeps for any reason, it’s only going to get worse. Today, perverts twerking in front of school children is an elective. Tomorrow it will be core curriculum. They literally sing about coming for your children. Really! They do.
“Gabriele Galimberti insisted on Instagram that he was not responsible for the items displayed in the photos.”
Did he insist this because the photos were possibly manipulated? Technology can do crazy things with photos and videos nowadays. 🙁
Up until this kerfuffle I had never heard of this company and now I can even pronounce it right which means it was all probably a scam to get publicity. How many millions would it cost to get this much copy? Of course the great majority of us are disgusted and will never buy their products, but the great majority of us aren’t there woke customers and therefore they lose nothing. Does anyone think that Madonna, Cher, the Kardashians or any other talentless “star” will object to this ad campaign? It is all part of the grift of the left.
Up until this kerfuffle I had never heard of this…
That’s the model, isn’t it? Push the moral/crazy envelope; keep it alive long enough to normalize it; make the new normal a victim of a vast conspiracy and voila! western civilization moves one step closer to total collapse.
Well, the POTUS appointed Sam Brinson to a high-ranking position in the Energy Department. He “walks” his boyfriends on a leash when he is not disposing of the nation’s nuclear waste. It’s all in-your-face, as is this degenerate activity. Is this activity a surprise? Was this just accidental (unknown to the company)? Uh, methinks not.
Sam Brinson got appointed in June 2022. In September, he was caught on CC TV stealing a woman’s expensive luggage full of clothing. He lied to police then confessed he stole it. He’s been on paid leave since early October and goes on trial for felony theft in December. I kid you not. The NY Post and Fox reported about it even though I didn’t see it anywhere else (other than free speech Twitter, thank you Elon Musk). https://nypost.com/2022/11/29/biden-official-sam-brinton-used-allegedly-stolen-suitcase-for-a-month/
What is it with the sudden obsession with the sexualization of children?
There is not so much a sudden obsession as much as an ability to openly flaunt such obsessions. We are no longer able to police the perverted practices of mentally ill peoples.
Grooming. No different from the ideological brainwashing going on in schools and universities. Mussolini’s first goal when he came to power was to control the educational system as a means to insure long-lasting power. No different here. The same approach is used by all authoritarians. Freedom of speech and thought are impediments to that goal.
I can foresee the line of questioning of Balenciaga’s top execs in a video’d deposition:
Question #1: Have you ever approved final copy for an ad campaign?
Question #2: Did you look at THIS final copy?
Question #3: Were you ignorant of the fact that the bears were wearing what is commonly known as ‘bondage gear?’
Question #4: Where did you learn that your company believes it is suitable for young children to be so closely connected to bondage gear?
Question #5: Why is it not YOUR responsibility for the complete content of the ad copy.
Question #88: Do you prefer to be shot at dawn by a firing squad, or hung by the neck until dead.
Monument always posts interesting comments….but overlooked the mud and pot holes in that “long road”.
This road shall be laden with far more of that than a Nigerian interstate highway.
We must sit down and think about what has occurred. A large company concluded that it was A-ok to create an ad with children and bondage gear. The explanation is easy. This company is run by smart people who understand what they are doing. It is inconceivable that they did not predict a backlash to one degree or another. They made the decision to strike a blow for wokeness and take their chances. They deserve all the heartache this issue produces.
The discussion of the legal ramifications of this ad campaign and the malpractice it may have encompassed is very interesting but I definitely see new advertising slogans for Christmas.
““Build – a – Bear” introduces new line of possible bears for children and adults, includes chains, whips, and other highly desirable accessories”. PARODY, FOR THOSE WITH NO SENSE OF HUMOR.
As far as discovery is concerned, as the suit moves along, it appears both parties will have to “Bear it all”.
This outfit just got a lot more free publicity.
It will be fun to see if there’s really no such thing as “bad publicity.”
Balenciaga used to be one of the major fashion houses in the 50’s and 60’s.
It has been struggling to regain its former luster.
The road just got a lot longer.
Professor Turley suggests various legal causes of action, including negligence. I suggest claiming advertising malpractice, which would also be a negligence based concept The issue would be whether the ad agency breached advertising standards, such as a duty to advise in their communications with the company .
“But, but we boycotted Twitter and Elon Musk….” Typical liberal phonies. Has anyone ever seen any digging into the little Swedish climate kid? Nope, never a deep dive on her or her family. So what if she is helping to cause millions to freeze in Europe this winter. SBF crypto goon used the same tactic to protect himself against charges being filed. Isn’t it funny that the liberal DOJ will SWAT Roger Stone and any Republican stepping foot in DC in January 2021 and yet this kid is still in his playhouse with his roommates??