Creepiest Guy of the Day – But Did He Break the Law?

A self-described pedophile posted on his website a picture of Sen. Barack Obama with his wife and two young daughters. According to The Smoking Gun, the man "posted photos of the Democratic politician's young daughters on a web site that purports to handicap the 2008 presidential campaign by evaluating the 'cuteness' of underage daughters and granddaughters of White House aspirants."

Wow. That is really disturbing. Obama's lawyers protested, of course, alleging defamation, invasion of privacy, and copyright infringement; the pictures have been removed, although a link to the website for Obama's presidential campaign remains.

I wonder how strong the legal claims would actually be, though?

• Defamation. In defamation, the gist is harm to reputation, and a showing of such harm is a constitutional requirement; can Obama claim that his reputation was injured by this?
  
  Furthermore, can't the pedophile simply say that he was expressing an opinion? Defamation covers assertions of fact, not mere expressions of opinion. I don't believe the pedophile maliciously made any assertions like "Obama endorses my views" or anything like that. And if the pedophile merely wished to express the opinion that "Obama's daughters are cute" – well, it's disgusting, but it also strikes me as constitutionally protected opinion.
  
  Even if the pedophile were asserting some false, identifiable "fact," Obama would have to show that the "statement" was made with "actual malice" – that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." NY Times v. Sullivan, 376 US 254, 280 (1964). This is because Obama is a public figure. Thus, if the pedophile unintentionally implied that Obama supported his message, this might not rise to "actual malice" – even if it were negligent. It can be argued, furthermore, that Obama's wife and daughters are also public figures (note: figures, not officials) – an intentionally broad term. The same logic might therefore apply to any defamation suit brought by them or on their behalf.



• Invasion of Privacy. I don't know much about invasion of privacy law, but I suspect the provenance of the picture might matter somewhat. After all, if the picture had been publicly distributed by Obama's campaign, how can the pedophile be accused of invading anyone's privacy?



• Copyright. Assuming that Obama owns the copyright in the picture (a reasonable assumption), he may prevent unauthorized distribution or reproduction of the copyrighted image. The pedophile may be able to claim a fair use defense, however; I'm not sure how that works. (There may be other defenses available, as well; we haven't gotten to defense yet in my copyright class!)

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These issues may be moot, because the pedophile did the right thing and removed the picture. But he has not removed the link to Obama's site, as Obama's lawyers had demanded. Furthermore, Obama's lawyers demanded that the pedophile "remove all references to Senator Obama, his family, and Obama for America" – regardless of the content of those references – and that he "forever refrain" from posting any references to or pictures of the same. Even if Obama could win in court, he surely would not be entitled to such a sweeping remedy. What happens if the pedophile posts a reference to or picture of "Obama, his family, and Obama for America" in the future, regardless of the content or context?

Interesting stuff, though deeply unsettling. So can a candidate for office do anything to stop online perverts from publicly drooling over their children?

UPDATE: According to the fair use provision of the 1976 Copyright Act, 10 USC § 107:

[T]he fair use of a copyrighted work[ ...] for purposes such as criticism, comment, news reporting, teaching[,] scholarship, or research, is not an infringement of copyright.

Additionally, § 107 states that, in considering fair use, courts must consider such factors as "the purpose and character of the use," "the nature of the copyrighted work," "the amount and substantiality of the portion used," and "the effect of the use upon the potential market for or value of the copyrighted work." None of this seems to rule out a fair use defense entirely; I wonder what the case law says?