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‘Mocking memes’ matter moves forward

Although none of them were personally in room 3A of the Haywood County Courthouse, pornographer Larry Flynt, Rev. Jerry Falwell, former President Bill Clinton, President Donald Trump, pop sensation Sonny Bono and acclaimed singer Cher have all emerged in a lawsuit brought by a local Republican Party official who says she’s been injured by a series of mocking memes. 

The suit itself, however, is no laughing matter. Filed by Haywood County Republican Party Vice Chair Debbie King on Feb. 6, King v. Haywood Republican Alliance, et al alleges she’s suffered “humiliation” and “physical disability” at the hands of three members of local political splinter group. 

A judge’s recent ruling means parts of the suit will go forward, but the involvement of a pro se defendant, the purported existence of six mystery defendants, the unexpected death of another defendant and questions over the future of the HRA itself will compound what promises to be a complex and contentious battle over issues of commercial speech, political speech, free speech, public figures and online bullying.

 

Sticks and stones

King’s allegations arise from photos and videos she says were circulated online by HRA members Eddie Cabe, Jeremy Davis and Richard West in mid-2017. 

One in particular shows the faces of King and HCGOP Chairman Ken Henson pasted on to the bodies of 1960s pop icons Sonny and Cher, singing their 1965 hit “I Got You Babe.”

The image then made its way onto lapel buttons, which would come to be known as “Kebbie” buttons and were allegedly sold by Davis at the Maggie Valley’s Hillbilly Jam Festival in July 2017.

The mockery, according to King, wasn’t limited to claptrap retail knick knacks.

She and Henson also appear in a parody video of Danish electro-pop group Aqua’s 1997 hit “Barbie Girl,” but perhaps the most striking exhibit submitted by King is a Facebook post where she’s pictured with NCGOP Executive Director Dallas Woodhouse at a GOP function; comments on the post made mention of the 1978 pornographic film “Debbie Does Dallas” and, according to her lawsuit, contribute to the inference that King engaged in extramarital affairs. 

Animosity between the GOP establishment and the HRA faction isn’t new; the two groups have been at each other’s throats for the past few years, ever since an HRA-led insurgency that seized party control from mainstream leadership was repelled in a counterinsurgency shortly thereafter. 

Cabe, Davis and West were subsequently booted from the NCGOP last fall on party disloyalty charges, along with fellow HRA member Monroe Miller, who is not named in King’s suit, which alleges intentional infliction of emotional distress and invasion of privacy by appropriation of name or likeness.

King’s suit says she’s suffered “emotional psychological distress, embarrassment, humiliation, physical disability, loss of appetite [and] stress.”

She’s asking the court to order a cessation of the publication, sale, distribution or use of her likeness and also seeking more than $75,000 in damages as well as attorney’s fees from the defendants.

Davis and West secured the services of attorney Amanda Martin, a well-known First Amendment lawyer who also serves as deputy counsel to the North Carolina Press Association. 

Martin faced off with King’s attorney Rusty McLean June 11 before Superior Court Presiding Judge Greg Horne; she was asking for dismissal of the intentional infliction of emotional distress charge, as well as dismissal of the invasion of privacy by appropriation claim. 

Misappropriation is one of four invasion of privacy torts in North Carolina, and is a distinctly commercial tort, according to Martin. 

“We would liken it, your honor, to someone who decided to make up T-shirts that say ‘impeach Bill Clinton’ or ‘impeach Donald Trump,’” she told Horne. “Those are political statements. That is not using [the names] for a commercial purpose … the exchange of payment is not the way we define what is or is not commercial speech. It is not the way you determine whether it is protected under the First Amendment — it’s the substance of it and in this case, that substance is political.”

Generally, political speech aimed at public figures like elected officials is protected. Although there are several “types” of public figures with corresponding degrees of protection, the gravamen of the complaint purports King, a low-level but nonetheless county political functionary in rural Western North Carolina, isn’t one at all. 

“Your honor, this is a case brought by a plaintiff who happens to be a home-school mother, who instructs her children in home schooling,” said McLean. “She also happens to be a vice chair of the Haywood County Republican Party. She, other than that, has no public interest or engages in any public discourse.”

McLean went on to opine that since the videos and buttons allegedly disseminated by the defendants didn’t specifically advocate for a political candidate or cause, no First Amendment protections should apply to them. 

“They only wanted to do it because it was funny, because they wanted to impugn her character through a caricature,” he said. “This was nothing more than an attempt by these defendants to embarrass, humiliate and degrade this woman’s character and reputation.”

Over the course of an hour, McLean made his case as to why defendants Davis and West should be brought to trial; he then made the same case against Eddie Cabe days later, on June 15. The only difference was, Cabe has represented himself since the suit was filed, a fact McLean took full advantage of from the outset. 

Over the course of two hours, the seasoned McLean went back and forth with Cabe over a stack of 30-some motions, petitions, requests, answers and amendments filed by Cabe — almost all of which were improperly captioned and deemed duplicative, insufficient, ill-timed, unclear or unfounded.

A pair of orders from Horne, entered in early August, addressed both the Martin and Cabe hearings. In the former, Horne granted Martin’s motion for dismissal on the intentional infliction of emotional distress claims against Davis and West, but also denied her motion to dismiss the invasion of privacy by appropriation claim. 

The landmark 1988 Supreme Court case Hustler Magazine, Inc. vs. Falwell held that damages from intentional infliction of emotional distress, generally, could not be collected by public figures. 

In the latter hearing, Horne denied almost all of Cabe’s motions, including one to “enter the Plaintiff’s home and to inspect her computer for information possibly relevant to the case.” Interrogatories filed by Cabe include questions about King’s husband’s employment status, how she intends to pay McLean and what prescription medications she may be taking, if any.

Accordingly, McLean motioned for a protective order sealing King’s responses to Cabe’s discovery requests. Such an order would have effectively prevented Cabe from sharing anything submitted by King — an allusion to the very public nature of the case, the animosity that yet persists and the atmosphere of ridicule McLean has repeatedly cited. 

While Horne did say in rejecting McLean’s request that it was too broad and restrictive in scope, he also wrote in his order that “based upon the multitude of motions filed by defendant Cabe … oversight of any alleged discovery violations is necessary” and “any specific discovery requests that Plaintiff’s counsel believes is baseless, abusive or requires answers that involve highly sensitive or personal information … be brought to the presiding superior court judge for review by motion.”

McLean said Aug. 20 he was “tickled” with Horne’s orders, particularly in regards to Cabe. 

“There were 22 motions, all substantively denied,” said McLean. “You should always have a lawyer.”

 

The little general

It appears as though the matter of King v. HRA, et al will now continue to move through the courts as assorted claims are still pending against the HRA itself, a series of six “John Does” and the three defendants — including Davis, who passed away unexpectedly on Aug. 4, leaving behind three young daughters. 

In North Carolina, the estate of a decedent can be substituted for the decedent; in this case, McLean would have to make a motion before the court to do so, but he says he won’t.

“The client and I, we’ve had a long conversation about this, and there is no reason to punish the children and family for his conduct,” he said. “So what we will be doing is continuing the case with the surviving parties.”

HRA treasurer and Davis’ co-defendant Richard West probably won’t get lonely, though — McLean says he’ll reveal the six John Doe defendants in the near future, during the course of the discovery process which will likely stretch into the first weeks of 2019. 

While Davis’ passing may not be a crippling blow to King’s case, it may be for the group that he helped found. 

“Our community, our state and our nation has lost a powerful and effective advocate for conservative causes,” said Paul Yeager, vice chair of the HRA. “I believe the organization, the members of the organization, are going to attempt to carry on what Jeremy started.”

He was widely seen as the backbone of the organization, and was an energetic fundraiser as well; North Carolina Board of Elections and Ethics reports show the HRA has raised $18,790 since the current election cycle began on Jan. 1, 2017, even though the group wasn’t formally incorporated with the state until two months after that. 

By comparison, the much larger, much more established Haywood County Republican Party has raised $27,179 since the start of the cycle. 

“He was a very dedicated conserve activist and very skilled fundraiser,” said Yeager. “A skilled entrepreneur.”

Davis also performed both contract and volunteer political organizing services for a variety of conservative candidates and groups across the region — including a successful petition drive that ultimately landed the Constitution Party on N.C. ballots this year — and was known in conservative circles across the state as a knowledgeable and skilled political operator.

Indeed, his memorial service Aug. 9 in Bethel drew mourners from as far as Statesville and featured appearances by Republican elected officials like Bryson City Rep. Mike Clampitt, Haywood County Commissioner Brandon Rogers, Haywood County Tax Collector Mike Matthews and Winston-Salem-based conservative activist Vernon Robinson, among others. 

“At any given point in time, each one of us have a few friends that we can truly depend on. You can count them on one hand,” said Monroe Miller, who has a longstanding policy of not granting media interviews. “These are people that when you ask something of them, they will respond to anything you ask, without hesitation. I had five. Well, I just lost one, as I’m sure others did as well.”

When not on the road attending to obligations related to his profession — armorer and firearms vendor — Davis could usually be found volunteering at the HRA’s Waynesville office, where he was known to some as “the little general” for his small stature and larger-than-life leadership. 

As of Aug. 19, that office appeared to be in the middle of a move, with empty cardboard boxes topping tables next to posters, signs and shelving stacked against the walls. 

“That’s why we’re closing the headquarters,” Yeager said. “He raised a lot of money and put a lot of his own money into HRA.”

While there are no immediate plans to open a new office location, Yeager said an HRA meeting next month would likely identify Davis’ replacement as the group tries to maintain momentum in advance of the November General Election. 

“I think we’ll have less of an obvious presence because of the loss of Jeremy’s fundraising skills,” said Yeager. “But I think the prospects are good.”

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