Lawsuit over political satire videos by “Planet Hank” will continue
By Mike Donoghue, Vermont News First
A federal judge has issued a preliminary injunction blocking Attorney General Charity Clark from trying to stop a controversial Brattleboro man from posting satire and commentary about Vermont politics and politicians.
Senior Judge William K. Sessions III ruled Tuesday a video by social media creator Henry L. Poitras, who uses the pseudonym “Planet Hank,” certainly gives the appearance of being satire and said the court might question if anybody would take it as a serious political message.
“Poitras would be irreparably harmed without a preliminary injunction,” Sessions wrote in his decision. Citing a U.S. Supreme Court case, Sessions added, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Poitras has said he uses artificial intelligence (A.I.) in his work that “mocks and exaggerates the conduct and statements of Vermont politicians and public figures.”
Clark apparently did not see the humor and tried to start an investigation based on a Vermont law passed this year that challenges the use of A.I. and requires certain disclosures that were not made by Poitras.
The 49-second video posted on social media by Poitras apparently got under the skin of Clark’s friend and fellow Democrat, U.S. Rep. Becca Balint of Brattleboro. Balint even went on Morning Joe on MSNBC on June 11 to complain about the use of A.I. in political videos. Clark’s office began a probe the following day.
The offending video is entitled “Mark Helps Vermont Take Out the Trash” and featured both Balint and Republican Mark Coestner of Westminster, who ran in the GOP Primary in August. Coestner lost to Gerald Malloy of Weathersfield for the right to face Balint in the General Election in November.
The video showed, in part, Coestner operating a large excavator on the Vermont Statehouse lawn and picking up what appears to be Balint and dropping her into a large trash container, while a narrator says “help Vermont take out the trash.”
Former Vermont Attorney Brady C. Toensing, co-counsel for Poitras, told Vermont News First on Tuesday evening, the judge’s ruling was a big First Amendment win to start, but there is more to resolve when the rest of the lawsuit against Clark is heard.
“Mr. Poitras’s video is obvious satire, which the law expressly exempts. Yet Attorney General Clark used that law to chill and suppress protected speech, apparently counting on him to back down. Instead, he fought back,” Toensing said in an email.
“This preliminary injunction is an important victory for our fundamental right to make fun of politicians in this country. This ridiculous investigation should never have begun,” according to Toensing, who now is based in Washington, D.C.
The judge also rejected a request by Clark that Poitras be required to post a bond to cover the costs of any counterprograming.
Sessions also questioned claims by Clark’s office to Poitras that he could face criminal investigation when the law only has fines.
“Well it’s confusing. What is the criminal prosecution for? I mean, there’s no – there’s no crime defined,” Sessions said during the one-hour hearing on Aug. 24 to listen to arguments from both sides.
The law, which went into effect in March, was approved by the Vermont Legislature without consideration from any First Amendment advocates. The law directs the person producing the message to include the specific words, “This media has been manipulated or generated by digital technology and depicts speech or conduct that did not occur.” Poitras did not use those words.
Besides the trash video, co-counsel Matthew D. Hardin played a handful of others from Poitras. Among them were “The Price is High,” “FTX Scandal,” and “Bernie Sanders is Greedy.”
The Clark letter made several demands on Poitras, including that he answer 15 questions in writing and under oath as part of a civil investigative demand. The letter also said if he brought the video into compliance with the law, the Attorney General would consider the case closed.
Instead Poitras filed a six-count civil lawsuit against Clark in both her official and personal capacities and said he did not intend to take it down by the June 26 deadline imposed by the Attorney General. Five counts in the lawsuit claim various violations of the First Amendment, while one count is for violation of the 14th amendment seeking dismissal on vagueness grounds.
It appeared Judge Sessions, as he questioned the lawyers during the court hearing, was having trouble accepting the arguments being advanced by Clark’s office that the trash video should be taken seriously.
His 25-page ruling issued Tuesday appeared to see the video as satire.
“The Court has viewed the ‘Mark Helps Vermont Take Out the Trash’ video, and—while the parties are able to move forward with this case and introduce further discovery — at this early stage, the Court is confronted with the ridiculous nature of the video,” Sessions wrote.
“Of note, in considering the video at this stage of the case, the Court looked at the entirety of the full length of the video to see whether Poitras would be likely to succeed in the argument that the video fits within the exception” under the new law.
“Having done so, the Court finds that the video in its entirety — including the voiceover, the unnatural appearances of those depicted, and the eventual dumping of Balint all contribute to its ridiculous nature,” Sessions wrote.
In his conclusion, Sessions wrote he was issuing a “narrow preliminary injunction” and ordered the Clark’s Office is restrained from enforcing or acting upon the civil investigative demand” and may not further undertake any other enforcement against Poitras based on the trash video posted on June 7.
Assistant Attorney General Sam Stratton, one of two lawyers representing Clark in federal court, said the Vermont law was passed because of concern over deep fake videos being used from California to Maine.
He said if the whole trash video was watched, the general public might believe it was fake.
“But that’s not how people encounter deepfake videos in their social media streams,” Stratton told the judge. Stratton said Poitras posted on Facebook and X, formerly known as Twitter. Stratton estimated the average viewer encounters a video for only a few seconds.
“It might be the beginning; it might be the end; it might be the middle,” he said.
Sessions, who has been on the federal bench for 31 years, questioned why the state was chasing the case.
“But you do acknowledge that a reasonable person, when looking at that video, seeing the Congresswoman picked up and dumped like that, would say to themselves, ‘This didn’t happen. This is not real?” And if that’s the case, why would you even investigate this?” Sessions asked.
Stratton and Solicitor General Jonathan T. Rose said after the hearing that Clark’s office policy prohibited them from answering questions, commenting on the case, or clarifying any issues the state made.
They referred questions about legal points from the court hearing to an office spokeswoman, who is not a lawyer and was not at the hearing.
The case all started when Poitras said Clark’s office sent him a letter, dated June 12, that told him he was under investigation shortly after he posted the brief video that mocks Balint’s politics and persona.
The Clark letter tells Poitras the investigation centers on whether he is out of compliance with the new synthetic media disclosure law, which “requires specific disclosure language on videos created with A.I. containing a realistic representation of a political candidate that injures the reputation of that candidate.”
The lawsuit acknowledges the video is realistic.
“However, no one, but a very young child or an unusually gullible person, would believe that the video, which also depicts Ms. Balint wearing a French-style beret as she is being lifted into the dumpster, is real, or that it is not a satirical commentary on Ms. Balint’s political views, candidacy, and elite persona,” it said.
Poitras graduated from high school in Keene, N.H. and served in the U.S. Marines with training at Parris Island and a tour during the Iraq War, court records note. He says he is a disabled combat veteran now living in Brattleboro.
He has become a controversial figure locally by shooting video of law enforcement, mostly Brattleboro Police, making arrests and showing the underbelly of the community with dangerous drugs and thefts in recent years. People have accused him of exploiting vulnerable community members, filming medical and mental health crises for personal profit, and peddling divisive rhetoric.