Peter Thiel's Lawyer Now Sending Questionable Defamation Threat Letters To Media On Behalf Of Melania Trump

from the billionaires-censoring-the-press dept

Charles Harder is the California lawyer who likely will forever be known as “Peter Thiel’s lawyer” after Thiel helped set up his own law firm with the “focal point” of hunting for any lawsuit that might destroy Gawker. It appears that Thiel is happy to share his pet lawyer with his new best buddy, Donald Trump, or Trump’s wife, Melania. On Monday the UK’s Daily Mail (not exactly known for its accuracy in reporting) received a threat letter from Harder, representing Melania Trump, claiming that its recent article on Melania was defamatory.

I’m not exactly sure where Mr. Harder is looking to sue but, if it’s in the US, it’s difficult to see how the article reaches the level of defamation by any stretch of the imagination. Melania Trump is, obviously, a public figure and, under US law, for a news report to be defamatory it needs to not only be incorrect and harmful but also published “with actual malice” — meaning that the Daily Mail would have known that the published statements of fact were false, or they had a reckless disregard for the truth. Reading through the original Daily Mail article, I don’t see how that could possibly be the case. The supposed “bombshell” claims in the piece are statements from a couple of different sources alleging that Melania was an escort when she first came to NY (and that may be how she met Donald in the first place). But the Mail is actually (somewhat surprisingly, given its reputation), quite careful with those statements, pointing out that they came from a book, but also noting that there’s little evidence to back them up. It also points to a Slovenian magazine article claiming that the modelling agency Melania worked for was actually an escort service, but the Mail only notes that the magazine said this, and then gets a quote from the guy who ran the modelling agency saying (vehemently) that the story wasn’t true.

Furthermore, the Daily Mail noted:

There is no evidence to back up these startling claims made in Suzy magazine.

The rest of the article is just kind of weird. Perhaps it’s how the Mail normally reports, but much of the second half is stories from a guy who had a crush on Melania when they were both teens.

But, yeah, it’s not at all clear how any of this rises to the level of defamation. The Daily Mail doesn’t say anything defamatory about Melania at all. It just notes that certain sources (a book written by an anonymous author and a Slovenian magazine article) make these claims (both of which are accurate factual statements) and then notes that there’s little actual evidence to back them up. And yes, this is a trashy tabloidy kind of thing to do (“some people say…” to say something mean, rather than making the case themselves), but it’s difficult to see how it comes anywhere near the standard for actual defamation.

And it’s not just the Daily Mail that Harder is going after. The Guardian reports that Harder has said that Melania may also sue Politico and the Week for reporting on her immigration status a few weeks back. You may remember the story. Politico noted some discrepancies in the timing of when Melania had claimed she had come to America, and the date of some nude photos that the NY Post dug up from a photo shoot in NY. That led Politico to raise questions about whether or not Melania was an illegal immigrant — a bit of irony considering her husband’s hardline stance against illegal immigration.

Once again, going through the Politico story, it’s basically ridiculous to argue that anything in there is defamatory. Again: the statements need to be statements of fact (not just questioning things) that were made with “actual malice.” There’s no way the Politico article reaches that level.

But, again, we’re talking about Charles Harder and the Trumps here, and the legitimacy of the case may be secondary to just threatening people. Trump, of course, has a long history of SLAPP-like lawsuits designed to bury journalists he doesn’t like. And that’s not me just saying that, Trump has flat out admitted to doing this:

Trump said in an interview that he knew he couldn?t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I?m happy about.”

And, again, that’s the basis of Thiel’s campaign against Gawker, where no matter what you think of the Hogan case, the other cases that Harder has filed against Gawker appear to pretty clearly be basic SLAPP suits designed to burden the company with legal fees.

And, of course, some smaller publications have already been intimidated into silence. The NY Times notes that Harder has contacted other publications as well (mainly those that wrote about the Daily Mail’s article) and at least two of them have retracted or apologized for their original stories. Here’s the Inquisitr apologizing and retracting its story and here’s Liberal America doing the same thing. Liberal America flat out explains:

This is being written under duress because I don?t have enough money to fight a legal battle against the Trump machine.

You can see the full threat letter that Charles Harder sent on behalf of Melania and judge for yourself. Harder claims that he can show “actual malice” in the reporting “by nature of the fact that my client has publicly denied the foregoing statements.” That’s not, actually, how one proves “actual malice.”

Without being able to see the original stories at Inquisitr and Liberal America, I can’t say definitively if either one said anything that would be considered defamatory, but it certainly sounds like they were just quoting what was in the Daily Mail article, which does not seem to be defamatory.

So what are we left with? A thin-skinned Presidential candidate who has admitted to happily filing bogus lawsuits to burden journalists whose reporting he doesn’t like, whose wife has teamed up with a lawyer who was basically set up in business to “focus” on filing a bunch of lawsuits for the purpose of overburdening a publication another billionaire disliked. People have been disagreeing with me over whether or not the Gawker shutdown is a big deal, insisting that “if you just don’t publish private sex tapes, there won’t be a problem.” Yet, here we have publications already being intimidated into not publishing stories and other larger publications being threatened for reporting which does not appear to be defamatory at all.

Doesn’t that seem the least bit problematic to some people?

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Comments on “Peter Thiel's Lawyer Now Sending Questionable Defamation Threat Letters To Media On Behalf Of Melania Trump”

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26 Comments
Mike Masnick (profile) says:

Re: Wrong again, Mike

Look up defamation per se.

Well aware of defamation per se, but don’t see how that changes the analysis here.

Also, why are you applying U.S. law to a U.K. publication?

Because it’s a US lawyer. I assume if they were suing in the UK, the letter would have been sent from a UK lawyer. Though as I admit in the post, it’s not entirely clear where such a lawsuit would be filed.

Anonymous Coward says:

Re: Wrong again, Mike

Wrong about what? “Defamation per se” simply means that the statements are presumed to be harmful rather than needing to be proven harmful. As always in the US truth is an absolute defense. Mike notes that all statements claimed to be defamation are simply true statement of facts and thus cannot be defamation (of any type).

As for why Mike is applying US law — the cease and desist letter claiming defamation was sent from a US lawyer at a US law office. If he intended to bring suit for these claims in a UK court he should have sent the letters from a UK lawyer. As it is now it seems the lawyer is claiming defamation in the US from publication in the US of the statements by a UK publisher.

PaulT (profile) says:

Re: Wrong again, Mike

“Also, why are you applying U.S. law to a U.K. publication?”

Because the lawyer in question is based in the US and the originating article says:

“Charles Harder, an attorney for Trump, said in an email that the legal action goes beyond just the Daily Mail and is not limited to the United Kingdom, where the Daily Mail is headquartered.”

Jason says:

And yes, this is a trashy tabloidy kind of thing to do (“some people say…” to say something mean, rather than making the case themselves), but it’s difficult to see how it comes anywhere near the standard for actual defamation.

I’m assuming it isn’t lost on anyone that this the very same “people are saying” rhetoric that the candidate himself is constantly using to trot out nonsense ideas. Funny that they suddenly think it’s malicious defamation when someone else does the same thing right back at them.

Anonymous Coward says:

So is basically the smoking gun that Donald Trump has no actual resources of his own that Peter Thiel’s lackey is taking on this case?

And does this also confirm all the rumors I’ve been hearing from many, incredible, wonderful, beautiful, luxurious sources that Donald has been donating what little money he has to NAMBLA?

Anon says:

Re: Re: Re:

It probably doesn’t prove Trump’s not got any resources, as I’m sure Thiel’s pet lawyer would be happy to take money from other rich people to attack the media.

Trump’s attitude is – “hire the best.” This guy won a $100M case, so he must be good, right? His due diligence consists of reading the internet.

Anonymous Coward says:

Live by the court

Die by the court. If they honestly feel that this is defamation, they will need to prove in court that these things are completely false. There are far too many people who know the actual truth for this to just go away with a lawsuit. If this isn’t dropped soon, we may find out how much she charged a night. Also for whoever referenced NAMBLA, nope. The blackmail that Clinton has on him is an underage girl, not boys.

Manabi (profile) says:

Re: Live by the court

This is actually insanely stupid of the Trumps. By suing, they open themselves up to discovery. Discovery very well may prove the allegations as true.

This isn’t the first time Trump has gotten himself into trouble via lawsuit either. He did it back in 2007 (which is actually the case where he admitted he did it to cost the reporter money, but he failed in that as the reporter paid nothing out of his own pockets): https://www.washingtonpost.com/graphics/politics/2016-election/trump-lies/

Anonymous Coward says:

From the letter:

“Actual malice can be proven by nature of the fact that my client has publicly denied the foregoing statements, and her denial has been published in other publications.”

So, it is this lawyer’s contention that the Mail should *know* this is false simply because the person in question denies it? Is that really what he’s suggesting? Because that’s preposterous. People deny true allegations all the time.

Anonymous Coward says:

They’re just reporting in a similar way to what Trump likes to do with almost every statement he makes, the big difference is that Trump doesn’t give up when questioned about what he’s said and just doubles and triples down on his statements and keeps spewing them as though they were facts even when he knows they aren’t and had even originally only said he heard some people saying something.

PaulT (profile) says:

I must admit I’m torn. I’m rather concerned about the ability of a rich client to shut down a news source out of a personal vendetta, even if they seem to deserve it on a moral level. I also dislike Donald Trump immensely, although I have no specific opinion on his family.

However, both of these pale in comparison to my hatred for the lying scum at the Mail, who have been a toxic blight on British politics for decades and have damaged my home country immensely. It would be nice if their attempt to poison the rest of the world was what leads to their eventual downfall. I’m just not particularly fond of this method of delivering justice.

“Perhaps it’s how the Mail normally reports”

It is, only they usually try to shoehorn some anti-immigration, racist or other scare story on top of the celebrity gossip. The usual way to read their articles is also to skip to the last paragraph – that’s where they normally hide the real story rather than the half-truths.

Anonymous Coward says:

Dailymail appears to have deleted this story from their website. Luckily, the Wayback Machine has a copy available at: https://web.archive.org/web/20160820010216/http://www.dailymail.co.uk/news/article-3749919/The-racy-photos-troubling-questions-Donald-Trump-s-wife.html

Dailymail’s story is quite plausible. It is written in a way that precludes a defamation suit under US law. The spicy details are not reported as fact. Instead, the story simply notes that they are allegations made by other entities without comment on whether the allegations are true or false.

If I said “the sky is blue.” And you said “Anonymous Coward said that the sky is blue.” I would have taken a position on the color of the sky, but you would have simply taken a position on what I said that day. Your statement does not assess whether my statement is accurate.

Assuming that Dailymail actually interviewed the sources, its story is 100% true because the story only takes a position on what the story alleged, not whether the allegations are true.

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