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.