Don Henley's Lawsuit Threatens Everyone's Free Speech

It’s been 11 months since I last wrote about big liberal donor Don Henley’s lawsuit against me for writing two music parodies and turning them into online campaign videos.

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I’ve long believed that conservatives ignore culture at their peril. Hollywood and faith shape culture and culture shapes voters far more powerfully than can mere politicians. With this understanding firmly in mind, I have cultivated contacts in the entertainment industry and used Al Gore’s invention to its fullest extent, winning awards for our campaign’s innovative use of Twitter and for our groundbreaking iPhone app (Beat Boxer? There’s an app for that!).

A key part of this effort to harness non-traditional modes of political speech began 13 months ago when, while campaigning in the Bakersfield area, I saw a fading Obama bumper sticker on a Prius. Instantly, the line, “Out on the road today I saw a Deadhead sticker on a Cadillac, a little voice inside my head said: don't look back, you can never look back,” from the Don Henley song “The Boys of Summer” popped into my head.

Knowing that Henley imputed political meaning to this line (he said it was a critique of how the idealism of the 60s degenerated into the materialism of the 80s) I decided right then and there to write a parody using the leftist Henley’s composition against the newly elected president he so ardently supported. Late that night, after driving over 420 miles (ironically, in my 2004 Cadillac CTS festooned with Chuck DeVore for U.S. Senate stickers) I penned the lyrics to “After the Hope of November is Gone.” Sung to the tune of “The Boys of Summer,” the parody pokes fun at President Obama’s supporters while anticipating the fading hopes of his presidency. On April 1, two days later, we released the music video of the parody, sung to a karaoke track, on YouTube.

Don Henley was not amused. Less than a week later, he filed a motion under the Digital Millennium Copyright Act (DMCA) to pull down our YouTube video. With millions of dollars to his name from being the lead singer to the most popular band of the 70s, Henley likely figured that he could use the court system to cripple the campaign of a U.S. Senate candidate running against the most liberal senator in the nation, Barbara Boxer, someone he’s supported with at least $9,000 of donations.

I refused to be intimidated by Henley’s actions. I had a campaign to run and I intended to win it using methods not routinely employed by conservatives. If I was unable to use cultural references in a campaign in California, I knew my effort to beat Boxer would be crippled. So, I filed a DMCA counter-notification and, on April 14, released another YouTube parody aimed at Boxer’s cap-and-trade bill. ”All She Wants to do is Tax” was based Henley’s “All She Wants to do is Dance.” It went viral, hitting the top 10 on YouTube’s News and Politics category while getting 10,000 views a day – until Henley filed to remove it.

With lyrics such as, “They’re pickin’ up the taxpayers and putting ‘em in a jam, And all she wants to do is tax, tax. Liberals been liberals since I don’t know when, And all she wants to do is tax… Barbara Boxer talkin’ round, Control in her sight, And all she wants to do is tax, tax. Wild-eyed global warmers, Who ain’t afraid to lie… Well, the government rigged the market in the carbon trading scam, And all she wants to do is tax, tax. To keep the boys a sellin’, All the credits they could ma’am. And all she wants to do is tax. But that don’t keep the boys, From makin’ a buck or two, And all she wants to do is tax, tax. They still can sell the public, On the good that they can do…” you can see why Henley could not let the parody stand. As a committed liberal in the entertainment industry who’s given some $750,000 to Democrats and leftwing causes in the past 10 years, Henley understands the power of culture. A conservative harnessing some of that power had to be stopped.

So, after my DCMA counterclaim notifications restored the parody videos to YouTube, Henley sued me in federal court, offering to drop the suit if I pulled the parodies and removed my lyrics from all Internet sites. My response was simple: pound sand.

So, where are we today? My campaign for U.S. Senate has raised about $1.8 million. The last five independent polls since January have placed me within the margin of error of Barbara Boxer. And the Henley lawsuit drags on, consuming time and money and shutting down a vital avenue of free speech that I intended to use in the course of my campaign. We expect a summary judgment on the case in May, just before the June 8 primary. If we win, our parodies will be back and I will likely write others. If we lose and go to trial, then lose in court, the implications will be far-reaching. For example, Paul Shanklin’s parodies on the Rush Limbaugh Show will be shut down as infringing on the copyrights of the owners, rather than transformative works of free speech protected by the First Amendment as they are now considered.

Had I known a year ago where we would be today would I have still written the parodies and drawn Henley’s lawsuit? Absolutely. Free speech using a culturally-savvy delivery is far too powerful to leave as the sole province of the Left.

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