Donald Trump Learns Why It's Important Not To 'Open Up' Libel Laws, As Suit Against Him Is Tossed

from the good-ruling dept

Donald Trump famously said during the campaign that, if elected, he would “open up” our libel laws. Of course, after he was elected, in an interview with the NY Times, he walked back some of that promise, noting that someone had pointed out such laws might be used against him too:

MARK THOMPSON: Thank you, and it?s a really short one, but after all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?

TRUMP: Oh, I was hoping he wasn?t going to say that. I think you?ll be happy. I think you?ll be happy. Actually, somebody said to me on that, they said, ?You know, it?s a great idea, softening up those laws, but you may get sued a lot more.? I said, ?You know, you?re right, I never thought about that.? I said, ?You know, I have to start thinking about that.? So, I, I think you?ll be O.K. I think you?re going to be fine.

And now he’s had some more time to think about that, and hopefully he’s pretty happy with how carefully our libel laws are designed to protect free speech, because they just protected Donald Trump himself from a questionable defamation lawsuit. The lawsuit was filed by Cheryl Jacobus about some tweets from the now-President elect. As summarized by Eriq Gardner over at The Hollywood Reporter:

Jacobus sued Trump and his former campaign manager Corey Lewandowski over comments made in the midst of a heated Republican primary. Seeking $4 million in damages, she alleged in her complaint that the Trump campaign tried to recruit her in May 2015, even attempting to entice her with the prospect of a post-campaign job at Fox News. She says Lewandowski told her that Trump was very close to Roger Ailes. She further claimed of coming to the judgment that working for Trump was untenable because Lewandowski was a “powder keg.”

In January 2016, she appeared on CNN to discuss Trump’s decision to skip a primary debate on Fox News and opined that Trump was “using the Megyn Kelly manufactured kerfuffle as an excuse.” A few days later, she returned to Don Lemon’s show and was dubious about Trump’s claims of self-funding his campaign.

This may have set Trump off. In one tweet, he wrote how he “turned her down twice and she went hostile. Major loser, zero credibility.”

Trump filed for a motion to dismiss, and argued that his statements were purely opinion — and the judge in her ruling agreed to dismiss the case, pointing, in particular, to the nature of debate and rhetoric on Twitter. As the ruling properly notes, “context is key.”

As context is key…, defamatory statements advanced during the course of a heated public debate, during which an audience would reasonably anticipate the use of “epithets, fiery rhetoric or hyperbole,” are not actionable.

Later in the ruling, the judge pointed out that a bunch of angry tweets are quite different than, say, an investigative article in the NY Times.

In addition, “[t]he culture of Internet communications, as distinct from that of print media, such as newspapers and magazines, has been characterized as encouraging a ‘freewheeling, anything-goes writing style.'”…. [“Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns.”]). Thus, “epithets, fiery rhetoric or hyperbole” advanced on social media have been held to warrant an understanding that the statements contained therein are “vigorous expressions of personal opinion” “rather than the rigorous and comprehensive presentation of factual matter.” …. [reasonable reader would believe that statements made on an Internet blog during sharply contested election generally referencing “downright criminal actions” were opinion, “not factual accusation of criminal conduct”]).

Consequently, “New York courts have consistently protected statements made in online forums as statements of opinion rather than fact.”….

Similarly, comments made on television talk shows, given the “give and take” of the show, and the “spirited” verbal exchanges between the host and guest, and the “at times heated” “interplay with audience members,” are deemed nonactionable opinion.

And what that leads to is Trump’s statements simply aren’t defamation — because our defamation laws are designed to (1) protect freedom of expression and (2) take context into account:

Trump’s characterization of plaintiff as having “begged” for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff’s a state of mind and is therefore, not susceptible of objective verification…. To the extent that the word “begged” can be proven to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel. Lewandowski’s comments, overall, are speculative and vague, and defendants’ implication that plaintiff was retaliating against them for turning her down, notwithstanding the unmistakable reference to her professional integrity, is clearly a matter of speculation and opinion.

Moreover, the immediate context of defendants’ statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable…. His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as “loser” or “total loser” or “totally biased loser,” “dummy” or “dope” or “dumb,” “zero/no credibility,” “crazy” or “wacko,” and “disaster,” all deflecting serious consideration….

Got that? The very nature of our libel laws are designed to enable and encourage public discourse and debate — even recognizing that it sometimes gets heated and involves insults — and Twitter, blogs and social media are some of the best representations of that. This is why Trump should be quite happy that our libel laws are as they stand today, and that there’s a strong First Amendment bar that has to be cleared to bring a defamation lawsuit against someone, like Donald Trump, who engages in name calling and verbal attacks on someone he disagrees with. This is exactly what the First Amendment is about:

… with the spirit of the First Amendment, and considering the statements as a whole (imprecise and hperbolic political dispute cum schoolyard squabble), I find that it is fairly concluded that a reasonable reader would recognize defendants’ statements as opinion, even if some of the statements, viewed in isolation could be found to convey facts. Moreover, that others may infer a defamatory meaning from the statements does not render the inference reasonable under these circumstances.

And that, right there, is why we have strong defamation laws. Even if you dislike Trump and what he stands for (and if you dislike his petty squabbles on Twitter), you should celebrate this ruling for a variety of reasons: it upholds the First Amendment and supports free expression online and it helps demonstrate to Trump himself how important the protections built into our defamation laws today can be.

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Comments on “Donald Trump Learns Why It's Important Not To 'Open Up' Libel Laws, As Suit Against Him Is Tossed”

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Anonymous Coward says:

Re: Re: Re:

The dozen-plus posts where Mike attacks Shiva personally all convey the message that Mike thinks he’s much smarter. This is his m.o. generally. It’s one thing to disagree and state reasons for the disagreement. But Mike, of course, had to make things personal.

So is it true that Shiva actually lied, as Mike claims? I don’t see how. He just did what Mike loves to do: Narrowly define something and then make claims that others don’t find reasonable or persuasive. Those two are meant for each other!

Roger Strong (profile) says:

Re: Re: Re: Re:

…all convey the message that Mike thinks he’s much smarter.


So is it true that Shiva actually lied, as Mike claims? I don’t see how.

Well, other than the milestones in the invention and use of email – before Ayyadurai came along – being exceptionally well documented, with Mike providing plenty of citations.

Anonymous Coward says:

Re: Re: Re:4 Re:

If Shiva claims, for example, that email must be asynchronous, and thus some other prior systems weren’t email because they weren’t asynchronous, that’s not a lie. You can quibble about whether that particular feature is necessary for a system to be email, sure, but neither side of that argument is lying. It’s just a disagreement. Mike turned a disagreement about terminology into a claim that Shiva intentionally lied. That’s where he might have trouble with this case. And, honestly, Mike’s silence only tells me he’s worried about it.

Roger Strong (profile) says:

Re: Re: Re:5 Re:

Email – including systems before Ayyadurai came along – is pretty much asynchronous by definition. It goes into a mail box and you can retrieve it later.

If it were synchronous it would be “instant messaging.” Synchronous means real-time communication, like instant messaging, IP telephony or streaming video.

Nice try though.

Roger Strong (profile) says:

Re: Re: Re:7 Re:

If Tomlinson’s transmission was synchronous – and I wouldn’t count on that – your claim is still wrong. Asynchronous email still long predates Ayyadurai’s system.

Read RFC 524, RFC 561, RFC680, RFC 724, and RFC 733. All standardizing email sent via email servers, that is, asynchronously. All pre-dating Ayyadurai’s system.

Saying "It’s just one example" is telling, when it’s the only example you can come up with and it’s a totally invalid example.

Anonymous Coward says:

Re: Re: Re:8 Re:

You can read Tomlinson’s own account. It was two computers side by side in the same room sending and receiving at the same time.

Whether that’s the true first email or not is a matter of opinion, not fact.

I’m aware of the RFCs, as is Shiva. An RFC is a request for comments, and it doesn’t necessarily represent a system that was actually built and used. Again, though, the point is that the first email system depends on one’s definition. Did it have to be reduced to practice? Did it have to have features a, b, or c? There are no correct answers here. It’s a matter of opinion, not fact.

Roger Strong (profile) says:

Re: Re: Re:9 Re:

Having two computers side-by-side for a demonstration does not prove your claim.

The article states that SNDMSG and CPYNET protocols predated the demonstration and used a mailbox. In other words it was asynchronous communication. (As opposed to instant messaging, synchronous communication.)

The demonstration added networking. Instead of the users being on one computer, they were on multiple computers connected through ARPANET. But still communicating asynchronously through a mailbox.

Your example disproves your claim. But even if it didn’t you’d still be wrong. The RFC’s I listed show that. Your example then be the equivalent of claiming “The car I invented in 1940 was the first, because the Model T doesn’t meet my personal definition mandating modern gas and brake pedals.” Ignoring all the models between the Model T and 1940 that DID have gas and brake pedals.

Gwiz (profile) says:

Re: Re: Re:9 Re:

It’s a matter of opinion, not fact.


Don’t know about anyone else, but I’m going to side with the opinions and definitions of actual internet pioneers and respected computer historians, as opposed to someone with delusions of grandeur who is just looking for a bit of fame or some anonymous commentator on a website.

It’s the same with word definitions, I tend to go with the definitions that are universally accepted so everyone else understands what I am saying, as opposed making up my own definitions in order to win an argument.

Gwiz (profile) says:

Re: Re: Re: Re:

The dozen-plus posts where Mike attacks Shiva personally

Once again, can you point to an example of Mike attacking Ayyadurai personally? Mike has countered Ayyadurai’s claims, but I didn’t see any personal attacks in what I read.


So is it true that Shiva actually lied, as Mike claims?

I don’t recall Mike actually claiming Ayyadurai lied, per se, but that he has exaggerated his claims that a copyright on a particular piece of software equates to inventing a entire concept like email. Especially when it’s pointed out that most of email’s features were implemented and standardized prior to Ayyadurai’s copyright.

Gwiz (profile) says:

Re: Re: Re:3 Re:

If you don’t remember Mike saying Shiva lied, you should read the complaint and go back over Mike’s posts.


I just did, and you are correct, Mike did point out some of Ayyadurai’s falsehoods directly. I’m still not sure how you equate that to a personal attack though. It’s attacking the falsehoods, not the person.

If you want see a real good dismantling of Ayyadurai’s claims, you should read this: Did V.A. Shiva Ayyadurai Invent Email?

Ninja (profile) says:

Re: Re: Re:3 Re:

Let me quote a part of the following article:

“(it is entirely believable that Ayyadurai, as a bright kid, independently came up with the same ideas, but he was hardly the first)”

I don’t see how someone would call the man bright if he took it personally. I believe YOU are taking it personally. At least you are providing good entertainment 😉

PaulT (profile) says:

Re: Re: Re:3 Re:

“That’s where he got personal, and that’s where he might have crossed the line.”

Unless he was telling the truth about Shiva knowingly misrepresenting information to get credit for something he didn’t do. In which case, that’s the textbook definition of a lie, and while it may sting for the liar to be called out for lying, it’s not wrong.

I’ve noticed nobody’s trying to prove he didn’t lie, you’re all just whining about Mike being mean because he called a liar a liar. No defence has come where you’re saying “well, we can see here that according to these facts they guy did invent email”. You’re all just saying “he’s mean because he addressed Shiva’s lies!”.

Anonymous Coward says:

Re: Re: Re: Re:

I have worked in the tech field for 20 years. Never heard of Shiva Ayyadurai till Techdirt. Went back and did my own research to confirm I wasn’t confused on facts. What I have found is that he was smart and did program a good method of communication before it was common place. So assuming he never heard of previous programs back then, “hard to believe since he knew how to program”, at most he re-invented email which was impressive. But trying to take the accomplishments of several other previous programmers is disgraceful. It is a sleazy tactic to try to get his name in with the other big names. He doesn’t deserve it and should be called out on it. Defending him is almost like trying to defend con artist or identity thief.

Anonymous Coward says:

Re: Re: Re:2 Re:

I don’t think there’s any evidence that Shiva had access to the RFCs or work that was being done elsewhere. He took a few programming classes and then wrote his EMAIL program. It strikes me as a case of independent invention. And it seems clear that the email we know today didn’t come from Shiva’s work. That said, I don’t see how he’s lied. Some of his positions strike me as unreasonable, as do many of Mike’s, but I don’t think he’s lying.

DannyB (profile) says:

Re: Re: Re:3 Re:

It strikes me as a case of independent invention.
> it seems clear that the email we know today didn’t
> come from Shiva’s work
> I don’t see how he’s lied.

An initial misstatement may not be a lie. Continued repeating of untrue information, in the face of facts to the contrary, with a purpose to gain fame and/or fortune, becomes a willful lie.


When I first said the earth is flat, it was not a lie, because I was misinformed.

Now that I have all the facts, I will continue to assert that the earth is flat. Am I telling a lie? Oh, and I can be hired to assist anyone promoting the flat earth view.

Ninja (profile) says:

Re: Re: Re:3 Re:

He lies. He corrected tons of news outfits when they said the inventor of Email had died when Tomlinson passed away. Heck, even Tomlinson rejected the idea as he knew his role was just another piece in a big collaborative work. The worst part is that this is widely documented and he keeps saying he invented e-mail. This is lying.

Anonymous Coward says:

Re: Re: Re:4 Re:

I wonder if you’re one of the Does named in the suit. Maybe so. (This is going to be such fun!)

Tomlinson himself claims to be one of the firsts: “Did you send the first network email? As far as I know, yes.”

Maybe I think Samuel Morse sent the first network email. Am I lying? No. Is Tomlinson lying? No. We just have a different definition.

Roger Strong (profile) says:

Re: Re: Re:5 Re:

Previous email systems tended to be between users on one computer. Tomlinson’s system sent it between users on different computers via ARPANET.

If you know of an earlier example, let us know. Just like everyone is pointing out earlier examples of what Ayyadurai falsely claims to have invented. Unlike Ayyadurai, we won’t sue.

Ninja (profile) says:

Re: Re: Re:5 Re:

“I wonder if you’re one of the Does named in the suit. Maybe so. (This is going to be such fun!)”

Nah, I read the whole thing and the Does are people related to Techdirt and Floor64. There aren’t any readers mentioned. Still, I wouldn’t be worried even if I was one of de Does. Easy win for Mike. And there’s the jurisdiction issue. They’d have to bring it many thousand miles away and it would be even easier to toss the lawsuit here AND counter sue for damages.

“Maybe I think Samuel Morse sent the first network email. Am I lying? No. Is Tomlinson lying? No. We just have a different definition.”

E-mail as it is today? If you think it was Morse you were entitled to do so and you would be wrong but to affirm you are right and then sue others who prove you wrong for defamation? Well, lies. And while Tomlinson may have sent the first e-mail with the configurations we use nowadays he is considered the inventor mainly because he gave the final contributions and kickstarted them. And newsflash: there’s consensus over the tech community he was a key player in the whole process of inventing e-mail. Mr Shiva? Not so much. I have yet to see people using his invention.

Anonymous Coward says:

Re: Re: Re:2 Re:

Barratry is a term of art, and I don’t see how it applies here. Mike mercilessly attacked Shiva, calling him a liar over and over. The lawsuit seems reasonable to me. Even so, I’m not sure that barratry is even still a crime, and if it comes from the common law, I would think it would need to be codified to pass due process muster.

Anonymous Coward says:

Re: Re: Re:4 Re:

My take is that Mike only showed that if you define email more broadly than Shiva does, Shiva was not the first to invent email. He did not show that under Shiva’s own narrow definition of email that Shiva was not the first to invent it. And since Shiva has explained what his narrow definition is in great detail, I don’t see how Shiva lied.

Anonymous Coward says:

Re: Re: Re:3 Re:

Barratry is a term of art, and I don’t see how it applies here. Shiva mercilessly attacked Mike, filing baseless claimes over and over. The counter-suit to recover costs seems reasonable to me. Even so, I’m not sure that beastiality is even still a crime, and if it comes from the common law, I would think it would need to be codified to pass due process muster…

Media lawyer says:

incorrect analysis

Sorry, but this ruling doesn’t impact Trump’s plans. Trump wants to eliminate the “actual malice” requirement public figures like himself need to prove to win a libel lawsuit against the press. The requirement that the statement must also be a provably false fact of statement would remain intact. Opinions, even mean ones, would remain protected. So, Trump’s libel proposal can perfectly co-exist with this court ruling. Nice try, though.

Anonymous Coward says:

I don’t remember columnist on this site constantly saying that “Even if you dislike President Obama and what he stands for” in every article on him. There are many people who have policy disagreements with every president. Is that what you are talking about? Or is Trump somehow a special case, because you do not agree with some of his policies.

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