My husband Topher Brennan has written an article about Melania Trump’s libel case and has asked me to signal-boost it, which I’m doing.
Excerpt:
Furthermore, there appear to be good reasons to think the part of the story about Melania violating US immigration laws is true. One of Melania’s former roommates confirmed that she was in the US in 1995 in an interview with Politico reporter Julia Ioffe, and the quotes where Melania appears to admit to illegally working on a tourist visa are on video tape. According to Politico, these kinds of immigration violations were common in the modeling industry in the 90s.
I have a copy of Pojar’s book, and it cites two sources by name to support its claim that the official story about how the Trumps met is not the real story. It also gives an account of Melania’s years as a model in New York that sounds a hell of a lot like a euphemistic account of an escorting career—”dating” rich men and making up to $1500 per day while simultaneously being frustrated with her inability to get kinds of modeling work she really wanted.
On top of all this, my own instinct is that whenever I hear about a celebrity abusing libel laws to suppress embarrassing rumors about themselves, I tend to assume the rumors are true. Most people realize that the smart way to deal with false rumors is to ignore them, especially when you’re famous.
If that was all there was to the story, though, I wouldn’t be bothering with it. I personally don’t care if Melania was an escort—in fact I don’t think there’s anything wrong with sex work and it should be decriminalized. And the hypocrisy angle falls a bit flat given that even without this story it would be perfectly obvious that her husband’s stance on immigration has nothing to do with immigration per se but is instead an expression of thinly-veiled racism.
Even the libel angle wouldn’t be terribly interesting, if Melania had merely sued the Daily Mail in a British court. British libel law is an internationally famous dumpster fire. If Melania had merely sued a British publication in a British court for repeating nasty rumors about her, she’d be joining the ignominious company of the Church of Scientology and anti-vax frauster Andrew Wakefield, but there wouldn’t be much of a story beyond that.
However, there are some twists to the story.
One of the things that frustrates me is that we don’t have a (derogatory or not) word for believing that some cultures are quite bad*. So people get called racist who aren’t. This is bad both for the understanding of the opposition (for those who favor migration/taking in many refugees) as well as for the people with anti/less-immigration beliefs to be able to ‘fence’ a position by calling out the actual racists.
Culture and/or religion is not and has never been a race.
* Ethnocentric doesn’t have the right meaning, IMO.
I think that this greatly overestimates the number of people who know about the Streisand effect and underestimates the number of famous people who have such big ego’s that they won’t ignore insults even if this is the superior strategy.
Given that we are talking about two specific people, I’d also add that Trump pretty clearly seems to get publicly upset over any and all (perceived) insults. My default assumption is that married people act alike, in the absence of more information. So my assumption is that Melania acts somewhat like Trump in this respect.
PS. To me, the entire article comes across as a ‘throw shit at the wall and see what sticks’ effort, where a lot of the evidence is fit into highly questionable narratives (like the ‘Melania is a damsel in distress’ narrative), which clearly a lot of people who oppose Trump want to believe is true, which IMHO makes them suffer from confirmation bias.
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Xenophobia is definitely a thing independent from racism, but with Trump I think we can say pretty confidently that this is about race for him:
https://www.washingtonpost.com/news/the-fix/wp/2016/10/08/donald-trumps-doubling-down-on-the-central-park-five-reflects-a-bigger-problem/
Also, I made no effort to make the facts fit a “damsel in distress” narrative. My initial draft was actually pretty hard on Melania, then I realized I could not in good conscience do that.
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@Topher
Nowhere in your link do I see evidence that it is clearly about race. It shows that, like many people, Trump wants to be hard on crime. It shows that two! weeks after the arrests, he believed the accusations.
Many, many, many people believe accusations, even if the evidence is poor, simply based on the accusation fitting their beliefs. This accusation could have fit Trump’s beliefs because he is a racist. But it could also have fit because he, like many people, believes that the police is generally right. It could be because, like many people, he is unaware of how many false confessions there are (when the ads were made, the 5 accused men had confessed). It could also be because he has strong feelings about stopping rape. Or it could be a combination of these things.
Picking one of these explanations, when there is absolutely no proof that that explanation is a factor and especially not the only factor, is exactly how false narratives about people get created. Once the narrative has been established, suddenly everything gets interpreted based on the assumption that it is correct, leading to tunnel vision.
I’m not saying that your article is entirely in the form of this narrative, in fact, it has a bunch of bad narratives. I just picked one as an example. Your ‘PS’ is clearly part of this narrative.
That you do it without meaning to is what makes you mind-killed. I’m not calling you disingenuous, I’m arguing that you lack critical distance from the narratives of your tribe that are mostly emotional and just-so stories.
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You forget Jews.
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And Hinduism.
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Good point. Most religions don’t evangelize all that much, really.
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@gazeboist
It’s more accurate to say that the word ‘Jew’ has multiple meanings, but that doesn’t change basic facts. ‘Jew’ can refer to a secular person of Jewish descent, but also to someone who adopted the faith. These are different forms of Jewishness, if you accept the same distinction in other contexts.
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Topher is engaged in some educated guesswork, which is reasonable, but let me lay out some educated guesses on the other side.
1) It’s to Trump’s credit that she sued in the US, not Britain.
2) If Webster Tarpley had much evidence to back up his assertion, my guess is that he could fund a defense through wealthy sponsors, pro bono lawyers with free speech or anti-Trump sentiment, or GoFundMe. After the judge let Melania’s case go forward, my guess is that Tarpley thought there was a reasonable chance he could end up losing under US law for statements he made about a public figure, which is saying something. (I’m not super-confident about that guess, but would put it at the level of some of Topher’s guesses).
3) Yes, there’s a Streisand effect, but there’s also a couple contrary motives that might give Melania reason to sue on her own rather than as a catspaw for Donald.
a) First, unchallenged stories have a way of gaining momentum over time – the Daily Mail article is enough to support a Wikipedia entry, and even the Tarpley post can add up. Topher’s own article indicts her in part based on originally unpublished remarks by an old roommate and a tell-all book. In that environment, I can’t blame her if she doesn’t want to let rumors go unchallenged. (And to be fair, Tarpley upgraded “there are rumors of escort activity” to “it is widely known that” Melania worked as an escort. )
b) Second, it’s working the ref. If the next blogger who wants to write that it’s widely know than Melania is a sex worker thinks twice, then she’s probably done about as well as she could hope.
TL;DR: Topher could be right in all his particulars, but so could Melania, and he doesn’t really explore that case as well as he could.
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Re: (2) pro-bono legal help isn’t something most people are lucky enough to get. And the relevant legal standard here is not how good his evidence was, but whether he acted with “actual malice”, which would more or less require she prove that he was just making stuff up. The fact that Tarpley settled is a case study in why strong anti-SLAPP laws are necessary, nothing more.
This follow-up post I wrote is relevant here:
http://freedomtothepeople.com/charles-harder
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I guess that’s the legal question – whether it’s OK to write that “it is widely known” that somebody is a sex worker when in fact there doesn’t seem to be more than scattered gossip and innuendo.
Given that Tarpley withdrew the statement when asked and is a 9/11 Truther, I can’t imagine there’s much actual damage, but I’m not sure if that’s an anti-SLAPP defense.
I’d be interested in knowing whether Tarpley is funding his own defense – Jill Steyn can raise millions and a journalist being bullied by the Trumps is on his own?
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“Jill Steyn can raise millions and a journalist being bullied by the Trumps is on his own?”
Entirely plausible. Better-known and more flashy causes have a stupendous fundraising advantage, even assuming the lesser-known cause is objectively more meritous and effective.
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“I guess that’s the legal question – whether it’s OK to write that “it is widely known” that somebody is a sex worker when in fact there doesn’t seem to be more than scattered gossip and innuendo.”
I think this is a settled question in First Amendment doctrine. According to the Supreme Court, it matters whether you’re a public figure or a private figure. A private figure who had that said about them would have a pretty good chance of winning the lawsuit. Public figures, however, are held to a higher standard in libel lawsuits (namely the “actual malice” standard mentioned above).
This is a separate issue from anti-SLAPP laws, which are designed to let you kill a lawsuit like this before spending thousands of dollars on legal fees. My understanding is that Maryland, where Tarpley resides, has a weak anti-SLAPP statute. So even if he’s legally in the right, it could be very expensive for him to prove it.
In particular, Tarpley settled after initial motions to get the lawsuit thrown out failed. In California, which has one of the strongest anti-SLAPP laws in the nation, it’s very likely the initial motion to dismiss would have succeeded.
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Noted First Amendment lawyer Marc Randazza seemed to think that Melania’s lawsuit is not a threat to free speech, and that it might even have a decent chance of success: http://www.cnn.com/2016/12/29/opinions/melania-trump-lawsuit-freedom-of-press-randazza/index.html
He’s hardly a free speech pushover so I am inclined to trust his assessment here.
He also explains the “actual malice” standard correctly. You don’t have to prove somebody made it up, just that they published something knowing it was false, or with reckless disregard for the truth. There is a good chance Melania could prevail on the merits on that point.
(As a recent example in the press, the libel suit against Sabrina Erdely and Rolling Stone over “A Rape on Campus” found actual malice. The administrator who brought the suit was deemed a limited-purpose public figure, so this was required to prevail. The finding was not based on Erdely making it all up, or in fact even knowing the story was false, but based on a lack of follow-up that constituted recklessness, according to the jury.)
It’s also to Melania’s credit that she filed suit in Maryland (admittedly weak anti-SLAPP aw) instead of New York (no anti-SLAPP law whatsoever) or the UK (absurdly libel plaintiff-friendly in a way that would violate the First Amendment in the US).
Trump has done lots of awful things, but Melania’s lawsuit is probably not one of them.
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Randazza seems to be arguing that lack of a “reasonable source” constitutes “reckless disregard for the truth”. That might seem innocent, but given the importance of anonymous whistle-blowers in exposing government wrongdoing, I’m not sure I want to put journalists in the position of reporting their anonymous whistle-blowers are “reasonable sources”.
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Thanks Topher!
Just to clarify, are you moving from “the law is well settled that Melania could not possible win” to “legal experts indicate that Melania may have a case, but I think she shouldn’t?”
As to whistle-blowers, I think what you want is a reasonable standard for reckless disregard of the truth. It’s not true that once someone is a public figure, you can say literally anything about them whether or not you know if’s false or almost certainly false, and I don’t think it should be.
Your article is a good example of defensible muckracking – you construct a case for some accusations about Melania, and you specifically identify your sources. Tarpley just came out and wrote that it was widely known that Melania was a sex worker, which seems to be false. (The widely known piece seems to be false, and the sex worker case appears unprovable).
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Jossedley: Randazza is the first lawyer not working for the Trumps who I’ve heard suggest they might have a case. I’m surprised and a bit confused by his claims, and wish he’d explained them in greater detail.
Trump’s lawyer, incidentally, has in the past complained about how hard it is for celebrities to win libel suits. So your default assumption when you hear “the First Lady is suing someone for libel” is that she’ll lose if the defendant can’t be intimidated into settling. I’d want to hear from more than one lawyer before overriding that default assumption:
http://www.gq.com/story/charles-harder-gawker-lawyer
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Thanks Topher – sorry for chewing on this, and I do enjoy your writing very much, but I was responding to the idea that it’s well settled that Tarpley’s statements clearly fall within the reasonable range of things you can say about a public figure – I disagree that that is well-settled. (Or true, but a couple creditable lawyers should be enough at least to get rid of well-settled.)
1) I haven’t found any lawyers saying the case is a slam dunk loss for Melania, or that the law is well settled that if you are a public figure, it’s OK to report false and harmful information knowingly or recklessly.
2) I was starting from the judge’s decision, which concluded that it was within possibility for Melania to prove that Tarpley’s statements to have been made with knowledge of their falsity, or with “actual malice,” which in this context means a reckless disregard for their falsity.
3) Here’s CBS’s legal analyst prior to the decision, who concluded that it’s a steep case for a public figure to make a defamation case, but that on these facts, Melania might do it.
http://www.cbsnews.com/news/melania-trump-the-daily-mail-defamation-lawsuit-rikki-klieman-lawyers-respond/
4) Here’s Mike Masnick, who isn’t a lawyer, but knows his way around the area, and coined the term Streisand effect. Masnick’s post is IMHO very insightful – while he concludes that Tarpley may be found to have committed defamation, he thinks that it’s odd to sue a random blogger who immediately retracted, and hypothesizes that it was an attempt to get the Daily Mail into Maryland, where there’s a weak anti-SLAPP law.
https://www.techdirt.com/articles/20160901/15452835419/melania-trump-sues-daily-mail-blogger-over-stories-using-peter-thiel-hulk-hogans-lawyer.shtml
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Have you seen any lawyer argue that the case is a sure loser and that this is a settled legal question? That is, based on analysis of the case itself, rather than assuming based on priors. I have not seen examples of this.
It’s worth noting that Randazza is not just any random lawyer who happens not to be employed by Trump. He has a track record of being strongly anti-Trump, anti libel abuse, pro free speech, and pro robust anti-SLAPP statues. He’s also an expert on free speech law generally. I think his analysis has enough evidentiary value to overcome the prior based on Trump’s behavior and statements. It certainly changed my mind; I was inclined to believe the worst about this case.
That said, here’s a citation of another legal expert endorsing the view that Melania may have a case:
http://www.cbsnews.com/news/melania-trump-the-daily-mail-defamation-lawsuit-rikki-klieman-lawyers-respond/
If your only reason for assuming that this case is illegitimate is a prior based on Trump being a libel monster in general, then the case is not further evidence that Trump is in fact a libel monster.
——
Regarding the “reckless disregard for the truth” part of the “actual malice” standard, and how it applies to reporting based on anonymous whistle-blowers.
First, it’s worth noting that truth is an absolute defense to libel, and (at least in the US) the plaintiff has the burden of proof to show the statements at issue are false. So true reporting based on anonymous sources is not at risk.
Second, using an anonymous source does not itself constitute reckless disregard. But failing to take reasonable measures to verify what a source tells you might. This is why most traditional news organizations will not publish based solely on a single anonymous source. They will seek some sort of verification, such as confirmation from other sources, or independently checkable evidence. The plaintiff’s burden of showing reckless disregard (or knowledge of falsity) is not insurmountable, but it is still pretty high. For example, if the publisher admits they are passing on “unfounded rumors and innuendo”, as in Melania’s case against the blogger, that may show reckless disregard.
Given this, I’m not too concerned that the legal standard will damage the free press. In fact, NYT v Sullivan, the case that established the “actual malice” standard, is considered a key protection for a free press.
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Re: (2), I have heard that Maryland’s anti-SLAPP statute is generally regarded by legal experts as quite weak. So when the judge says it’s “possible” Melania could prevail, I think that should be read as “Tarpley’s anti-SLAPP motion does not meet the standards for Maryland’s very weak anti-SLAPP law”.
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The judge’s ruling doesn’t really say anything about Melania’s likelihood of prevailing on the merits. There doesn’t seem to be a written opinion, but from quotes in the press, it seems the judge was rejecting a motion to dismiss for failure to state a claim. A lawsuit has to achieve extreme levels of sloppiness to be dismissed for failing to state a claim. It is entirely possible to state a valid claim but still have no chance to win.
There is a fair bit of evidence other than the judge’s ruling that Melania’s suit had a chance, though.
Her most likely path to losing is if she fails to prove that the claims are false. Otherwise the defendants are kind of screwed. They admitted that they published unsubstantiated rumors and innuendo, but their defense is that they said all along that it was just rumors and innuendo. Unfortunately, in most states you can’t escape libel immunity by reporting on the fact that you heard a rumor. And making this concession could establish reckless disregard for the truth of the underlying allegations.
(Epistemic status: not a lawyer)
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@memeticengineer: with some exceptions, you can generalize a motion to dismiss standard as “if the things in Plaintiff’s Complaint are found to be true at trial, is it possible for Plaintiff to win under the law.”
(One of the exceptions is that if you refer to a verifiable document, the Court gets to consider what the document actually says, so if Melania said that Tarpley said something in his blog post and he didn’t, that could probably be considered.)
I’d agree that you can have very little chance to win and still defeat a motion to dismiss, but if the law were well-settled that Tarpley’s statements were protected, then the motion was decided wrongly.
PS – it’s sort of funny that we ninjaed each other with the same CBS link.
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@jossedley
The worst is the Wikipedia feedback loop:
1. A bad journalist/pundit makes something up on a semi-respectable news site.
2. It gets added to Wikipedia
3. Other bad journalists use Wikipedia as a source
4. Those articles get added to Wikipedia as proof for the claim
Bonus points if:
– Step 1 is missing, so it just started as an unsourced claim on Wikipedia
– The initial claim is retracted
– On each step of the process, people exaggerate, Chinese whispers style. So ‘cat scratches owner’ becomes ‘pack of lions destroy village.’
– People providing actual proof that the claim are false get shut down on Wikipedia, because ‘reliable sources say it is true’
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I think Wikipedia’s norms are surprisingly effective, but I totally agree that the Reliable Source rule makes pushing back on press coverage more imperative.
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‘Surprisingly effective’ is a statement that is relative to your own expectations, which makes it a subjective statement that I am unable to judge unless I know what your expectations were based on.
I am more interested in their failure modes anyway, so I know what to look out for.
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I’ll go father – there isn’t a single Wikipedia editing rule that I would be confident in changing. In the case of the Reliable Source rule, I think any other rule makes the situation worse.
(And to be fair, in Melania’s case, you’re in the intersection between Reliable Sources and Biographies of Living Persons, and I’m not sure how those interact).
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This is…what?
The president “is known to be a great admirer of Kim Jong-Un”? He “was a career criminal”? He’s a “Russian intelligence asset”?
Sure. While we’re at it, he’s a martian.
“Trumps team using moles within the DNC” is probably my favorite, though. How on earth is Trump’s team running moles?
There just isn’t enough Trump to go around. This article posits a man who is simultaneously willing to admit to grabbing women by the pussies, but afraid of being blackmailed for hiring escorts. He’s simultaneously obsessed with Mrs. Obama, a devotee of the North Korean regime and going senile. He is a spymaster, running his own team of deep cover moles, but also a career criminal, supplementing the fortune he inherited (and presumably the second fortune Putin is paying him) with the takings he gets on libel suits?
Once you read the whole thing, it all unravels.
I could buy a mafioso president. It seems possible, if unlikely.
I could buy a president struggling with senility.
I could buy a manchurian candidate situation, where the President is secretly loyal to another country. (or, in this case, North Korea AND Russia, despite their emnity)
I could buy a president at odds with his wife of 18 years, despite their constant protestations of love. (House of Cards situation)
I could…maaaaayyyyybe, even buy a president who has a network of moles in the other party, who stick by his side when his own party strives mightily against him.
But putting even two of these together doesn’t yield a real person, it gives me Doctor Doom. The author wants me to believe in every one of them, and, as an atheist, I’m super bad at being afraid of the devil.
Day in the life of this president? He reads the reports from his moles, gets his orders from Putin, visits his Kim Jong-Un shrine (he just knows they will work it out. Put-Jong-Un is his chosen ship), takes the anti senility meds that his physician has smuggled in without anyone learning of them (the physician, like the moles, is ride or die, and turns up his nose at the idea of a book deal and millions of dollars), makes a call to the Mafia to keep them happy…and then, breakfast.
But, even if we buy this composite nightmare figure. None of it squares with the observed reality. The Trump I see on tv is none of these things. Far from inspiring the unbreakable loyalty of the people who conceal this vast edifice of lies from the light of day, he is constantly being leaked on. Far from admiring North Korea, he threatened to bomb them.
Trump is plenty scary without also making him the Sum of All Fears.
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I cannot give you my respect for this ship name, it is inadequately punny.
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I hadn’t called this out before, but I wouldn’t be surprised an intentional Streisand response.
Topher is not a fan of the lawsuit (IMHO a pretty reasonable response), so he wrote and publicized a much more well researched piece in response.
If so, the goal isn’t necessarily to get to the most likely answer of what’s going on behind the Trumps’ wall of secrecy, it’s to document and publicize the most aggressive defensible case. Basically, what Tarpley should have done, if he were as smart as Topher.
I should say that I don’t know anything about Topher personally, other than he’s smart and Ozy likes him, so anything I say about his motives is entirely speculation. Also, if my speculation is right, I think that’s entirely legitimate – there’s nothing wrong with documenting a public case clearly.
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