It’s offensive, tasteless, and relies on his “triggered” political humor to rile up liberals and satisfy his base, but Donald Trump Jr’s clothing line – now offering T-shirts telegraphing slogans like “F*** Joe Biden” – will probably survive any possible legal challenges.
An “official merch” webstore from the former president’s son has faced criticism over a line of shirts capitalising on a fatal on-set shooting involving actor Alec Baldwin reading “Guns Don’t Kill People, Alec Baldwin Kills People.”
Mr Trump also released shirts with slogans like “Fauci Lied, Dogs Died” and “Fauci Kills Puppies” after right-wing media blamed Dr Anthony Fauci for federally funded disease research involving dogs. Another shirt alludes to House Speaker Nancy Pelosi as “crazy.”
The webstore also sells “Let’s Go Brandon,” “Foxtrot Juliet Bravo” or “FJB” – all euphemisms for “f*** Joe Biden.”
Sellers using Shopify, the online retail platform that hosts Mr Trump’s store, must adhere to its acceptable use policy, which includes provisions against “harassment, bullying, defamation and threats.”
“You may not offer goods or services, or post or upload materials, that harass, bully, defame or threaten a specific individual,” according to the policy.
In the wake of the riots at the US Capitol in 6 January, Shopify booted the former president’s campaign and company stores from the platform, citing violations of its acceptable use policy.
“Shopify does not tolerate actions that incite violence,” a spokesperson said at the time. “Based on recent events, we have determined that the actions by President Donald J Trump violate our Acceptable Use Policy, which prohibits promotion or support of organizations, platforms or people that threaten or condone violence to further a cause. As a result, we have terminated stores affiliated with President Trump.”
While the shirts reflect the level of “bumper sticker mentality” in current political discourse, using slogans to “try to chum the political waters,” the First Amendment “protects a great deal of offensive and disagreeable speech,” said Clay Calvert, law professor and Brechner Eminent Scholar in Mass Communications and director of the Marion B Brechner First Amendment Project at the University of Florida.
“Nobody takes these to be assertions of fact,” he told The Independent. “When you have someone like Fauci involved and it’s on a T-shirt … people expect hyperbole, not assertions of fact … Part of being a public figure or government official is you expect hyperbole and attacks against you.”
If Baldwin were to sue for defamation, he would likely lose, experts say. The shirt isn’t accusing him of murder, a criminal charge, and it’s an unsubtle attempt at satire and hyperbole – despite the sincerity of the person selling or wearing it – that has strong First Amendment grounds.
“Context matters,” said Cynthia Counts, a partner at FisherBroyles with a focus on media and communications law and an adjunct professor at Emory Law School and Emory University. “You have to look at how a reasonable person would answer that in this political environment.”
A plaintiff would have to show actual malice, and whether they are knowingly accusing someone of something false, she said.
But legal action would probably also generate a “Streisand effect,” in which an attempt to suppress or remove something ends up drawing greater, unwanted attention to it, said Enrique Armijo, professor and associate dean for academic affairs at Elon University School of Law and an affiliate fellow of the Yale Law School Information Society Project.
And in this case, that attention would likely be exploited by Mr Trump, who has routinely sought to provoke “Big Tech” in his family’s pivot into its own social media and tech enterprise, in which his “trolling” and attempts to get kicked off other websites are “part of their own use case for getting their own platform,” Mr Armijo said.
The move from physical stores into service agreement-controlled online spaces has drawn more scrutiny into how those spaces determine what is on them. Following the Capitol riots, for example, the website for the right-wing social media app Parler was scrubbed from Amazon’s web-hosting service, and the app was removed from the Apple App Store and Google Play Store.
“If these were regular stores, I don’t think we’d even blink an eye,” Mr Armjio said. “I don’t know if the fact that so such of that commerce has moved online changes that.”
Some T-shirts also traffic in anti-Covid-19 vaccine rhetoric – one shirt says “powered by natural immunity” shirts and another reads “my science is better than yours.”
Both appear to just barely skirt by the Shopify’s Covid-19 policy, which says that “any medical, scientific or other claims must be true and supported by documented evidence, and where required by law, an adequate and proper test of such claims” and that “products claiming to prevent, treat or cure Covid‑19 will be removed from the Shopify platform.”
Shopify did not return The Independent’s requests for comment.
Meanwhile, the former president’s own campaign also sent an email on Thursday offering a “Let’s Go Brandon” T-shirt – for a $45 donation.
The email said: “You’ve probably heard it being chanted anywhere patriotic Americans get together. Well now, President Trump has put America’s favorite new phrase on a custom shirt. That’s right. President Trump has just authorized the release of his brand-new, limited-edition ‘LET’S GO BRANDON’ shirts.”
“Whether you’re at a concert, football game, or just out for a walk in the park, you’re probably going to hear someone say ‘LET’S GO BRANDON,’” the email said. “Now you can have a shirt to match.”
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