The latest defamation suit against Donald Trump has emerged. Summer Zervos, recently famed for her accusation that Trump sexually assaulted her in 2007, filed suit against Trump in state court in New York, accusing Trump of defaming her in the course of denying her accusations. The suit follows a recent trend in cases against public figures: the plaintiff accuses the public figure of sexual misconduct well outside the statute of limitations, then sues the public figure or his representatives based on their response. I'm not a fan of the public figures at issue nor of this legal approach.
The main legal issue in play is the distinction between provable statements of fact, which are potentially defamatory when false, and statements of opinion and hyperbole, which are not unless they imply false statement of fact. For instance, "Ken is a jackass" is not defamatory (it's not provable fact, it's an insult and hyperbole), but "Ken is a convicted felon" is defamatory (it states a false provable fact), and "Ken is guilty of a crime" may or may not be defamatory depending on the circumstances. (It would be opinion if uttered in response to a newspaper article about me; it could imply false facts and be defamatory if, for instance, the speaker suggested that he or she reached the conclusion after reviewing my emails or seeing an undisclosed police report.)
In Zervos' case, the statements at issue involve denials of Zervos' allegations and attacks on her credibility after her accusation of sexual assault. Zervos complains that Trump (1) denied that he'd ever met her in the hotel she described, (2) drafted her cousin's statement saying she'd only praised Trump in the past and was trying to get back on television, (3) called her allegations a hoax, phony, lies, false, made up, fabricated, and a smear for political or financial purposes, and (4) suggested her allegations had been "proven false."
Calling someone a liar is not automatically fact or opinion; it depends on the circumstances. Sometimes it's treated as figurative opinion. See, e.g., Morningstar, Inc. v. Superior Court, 23 Cal.App.4th 676, 691 (1994) (titling article “Lies, Damn Lies, and Fund Advertisements” not actionable as libel because it “cannot reasonably be read to imply a provably false factual assertion”). Courts are more likely to interpret statements as hyperbole, figurative speech, or opinion in some contexts, including politics and litigation. See, e.g., Information Control v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980) (attorney's press statement that a lawsuit was a way to avoid a debt was opinion because in context of legal dispute, “language which generally might be considered as statements of fact may well assume the character of statements of opinion.”)
Here, the better argument is probably that at least some of Trump's statements were assertions of provable fact. He wasn't merely characterizing the merits of a case that relied in part on subjective factors. He wasn't merely disputing her characterization of an encounter as sexual assault. He was specifically claiming based on his own personal knowledge that Zervos was lying about whether a specific incident happened at all — that is, he was making a factual claim about her. By contrast, some of his typical Trump bluster — that she was doing it for politics or money — is probably non-factual opinion. Some of Bill Cosby's accusers made defamation claims that survived a motion to dismiss based on significantly more ambiguous denials, and I suspect Zervos will survive a motion to dismiss here.
Next, there's a relevant legal privilege that Trump may assert. A privilege, in this context, is a defense that shields a statement from defamation liability even if it's false. Privileges can be absolute (meaning that the statement is immune from suit even if the speaker knew it was false) or qualified (meaning that the statement is immune from suit unless the speaker knew it was false — that is, it's immune from defamation on a negligence theory). Most jurisdictions, for instance, have an absolute litigation privilege — you can't be sued for defamation based on what you say in court or in a court pleading. A few jurisdictions have what's called a "self-defense privilege" — a privilege that covers responses to accusations. That's the privilege Bill Cosby tried unsuccessfully to invoke in his I-didn't-do-it defamation case. New York doesn't have something called a "self-defense privilege," but it does have an applicable privilege that applies when a statement is "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned." New York courts apply that privilege to public statements made to defend the speaker from an accusation of wrongdoing. But it's a conditional privilege, and doesn't apply to a statement made with malice — meaning with knowledge that the statement is false or with recklessness as to its falsity. Here Zervos explicitly claims Trump knew he was lying. Trump can't get rid of the complaint before trial based on this privilege; it's a trial defense. Frankly it's not a defense that fits well to a pure he-said-she-said situation.
Trump is going to have a very hard time getting rid of this case in a motion to dismiss, and perhaps can't even get rid of it on a motion for summary judgment. It's not clear whether he's willing to invoke what would be the most effective defense, a variation on the distinction between opinion and fact: nobody sensible takes anything Trump says as a provable statement of fact. Rather, rational people increasingly recognize that anything Trump says is "serious" but not "literal" — an assertion of interest or ambition or anger, but not a statement meant factually. If Trump says it, it's probably opinion, insult, and hyperbole, whether or not it comes clothed in nominal fact.
That's the defense I suggested Trump ought to invoke in Cheryl Jacobus' defamation case against him:
In defamation law, there's a popular philosophical question: can someone be "defamation-proof"? That is, can someone's reputation be so awful that no falsehood can make it any worse? There's a flip-side of this as well: can someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact? This is what I call the batshit crazy rule and the Ninth Circuit more decorously refers to as "general tenor of the entire work." I think Trump — or at least Trump on Twitter — presents a good test case of the batshit crazy rule. Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact. Sad!
The trial court in Jacobus' case actually relied upon something like that argument in dismissing her case, though in considerably more genteel terms. Any putative factual statement by or on behalf of Trump, the court said, has to be taken in the context of the way Trump habitually acts, which cuts against a literal interpretation:
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. (See eg Jasmine C. Lee & Kevin Quealy, The 289 People Places and Things Donald Trump Has Insulted on Twitter: A Complete List, The Upshot, NY Times [digital ed], Dec. 6, 2016, http://www.nytimes.com/interactive/2016/01/28/upshot/donald-trump-twitter-insults.html [accessed Jan. 8, 2017]). 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. (Id.; see Technovate LLCv Fanelli, 49 Misc 3d 1201[A], 2015 NY Slip Op 51349[U], *4 [Civ Ct, Richmond County 2015] ["On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence."]; Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 13 J High Tech L 430, 433 [2013] ["The informal nature of conversation on Twitter tends to encourage people to talk more freely about others, including the spreading of rumors and potential falsehoods."]).
Put another way, it is a matter of judicial record that the new President of the United States is habitually full of shit. This is optimal for a defamation defense, if perhaps not for America.
Zervos has an excellent chance of surviving a motion to dismiss and even a motion for summary judgment. But even leaving aside a rehash of Clinton-era squabbles over executive privilege, she has an uphill battle at any trial.
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Assuming that this defense is used successfully so a hypothetical: what repercussions would there be for someone who has had a court accept that they should not be taken at their word? Could this be used as evidence (either by him or others) elsewhere eg written contracts or is it specific?
I'm curious!
EDIT: I am most certainly not a lawyer which, I hope, explains my confusion.
"I suspect Zervos will survive a motion to dismiss here. "
"Trump is going to have a very hard time getting rid of this case in a motion to dismiss, and perhaps can't even get rid of it on a motion for summary judgment."
"Zervos has an excellent chance of surviving a motion to dismiss and even a motion for summary judgment."
What's your point, Riccardo, other than to repeat what Ken said?
" it is a matter of judicial record that the new President of the United States is habitually full of shit. This is optimal for a defamation defense, if perhaps not for America. "
When was the last time the US had a president who wasn't habitually full of shit.
The only names I can think of that you could plausibly argue that they weren't habitually full of shit would be Eisenhower and maybe Ford and Carter. Possibly Bush 1 but probably not.
Point is, it's been awhile.
Carter maybe – well, not *full* of shit, but there was still a lot in the bag.
Eisenhower and Ford – both definitely full of it.
Yeah it's possible I'm confusing "not slick" with "not full of shit".
Many years ago, Gloria Allred sued John Schmitz for defamation after he called her a "slick, butch lawyeress". I would have guessed that this was non-defamatory, because "slick" is an opinion relating to style, "butch" is an opinion relating to appearance, and "lawyeress" is a female lawyer (slightly more dignified that "lawyerette"), but perhaps I was insufficiently imaginative, because he ended up settling.
The Supremes wrongly decided the Paula Jones case, which permitted a private plaintiff to embroil a sitting President in litigation (the President works for all of us, and any distraction during his/her term works to the detriment of the American people). There may be a second chance here for them to get it right.
@OrderoftheQuaff —
The word "butch" used to more clearly connote roughly the same thing as "bulldyke," back in the day.
Not that there's anything wrong with it, of course. But my guess is that it would have been a reputational-damage type of thing in the '80s (and might easily be now, for all I know).
I find the claim that defamation is implicit in any contradiction of what a person says to be very troubling. It is a legalized – no, that's not the right word – lawyerized form of "Are you calling me a liar?" bullying.
French TV "journalist" Charles Enderlin reported the alleged shooting of 8-year-old Mohammed al-Durah by Israeli security forces. This incident was a major incitement for anti-Israel and anti-semitic violence in Europe and for the Second Intifada.
Later, another French journalist, Nicholas Karsenty, exposed the dubious nature of the evidence for Enderlin's report. Enderlin responded by suing Karsenty for defamation – successfully, effectively silencing debate.
Serious question, if it is possible to sue for the denial of an accusation, is there any limit to this? Can someone simply make impossible-to-prove-or-disprove accusations, wait for a denial and then sue? Is the only way to avoid this as a defendant to never deny accusations?
"When was the last time the US had a president who wasn't habitually full of shit."
To this extent, in this way? I don't know that there's ever been an American president with this kind of relationship to fact.
Most of the stuff that Trump lies about isn't even difficult to disprove. There aren't any weasel words or other rhetorical outs that politicians give themselves. It's just pure stream-of-consciousness, and that makes it both fascinating and horrifying to me.
I am also fascinated and horrified thinking about how such a person is going to work in diplomatic negotiations. If you're publicly and proudly known for spouting an almost constant stream of bullshit, how can anyone trust that you're going to do what you say you're going to do?
Zervos' lawsuit is way funnier than your blog, it reads like a script. I hope that's not a trend. I really did like your pony blog, though.
So the basic argument here is that, as in the "defamation-proof" post, someone lies so habitually that their statements of fact are "reasonably assumed" to not be taken literally. But what is this test of "reasonable assumption"? I'd say that, while the majority of lawyers and judges now understand that the statements are either coming from someone who is completely delusional or someone who thinks that these statements have net positive effect because there are not going to be any repercussions meaningful enough to outweigh their benefits, but is that understanding necessary for someone to be a "reasonable" observer?
Consider for a moment the person who is not a regular follower of politics, which I don't think excludes one from being "reasonable". This person has heard some of what Trump has said, but what if they only watch Fox when they do watch the news, and haven't heard any of his outlandish statements? I'd say that this person could reasonably see the statements in question, say a trending topic on Facebook, and subsequently think that his statements aren't hyperbolic, but actual statements about a fact. Is this not how the "reasonable person" test works?
Since the facts of this case make it appear to be political opportunism, what about the possibility that the case would be stayed until the end of his term(s)?
Such stays have been discussed for other presidents, but I thought that normally applied only to cases regarding the presidents time in office, not before.
I'd say someone who speaks unfiltered what comes to his mind / what he guesses to be true, is (while not ideal) more honest than someone who cynically hides well-crafted lies behind slick rhetoric.
It's also pretty harmless: Once you realize that you need to insert an "approximately" before every number Trump quotes, and an "My guess/feeling/opinion is" before every claim he makes (especially on Twitter), you know exactly what you're getting.
I think the following adage (not sure who came up with it) hits the nail on the head:
Hillary is a liar, Trump is just a bullshitter.
I genuinely, genuinely hope that you are right. I hope that his bullshit is harmless.
I don't think it will be, though. I think that this variety of bullshit will be positively harmful when spouted by the world's most powerful person.
Bullshittery works only as long as the opposing entity can account for it reasonably accurately and be willing to accept the uncertainty of said bullshit.
The problem is that the stakes are much higher now. Every utterance of a president is taken seriously as possible new policy. What bullshittery does is inject a severe lack of confidence in the position of diplomatic negotiators. This causes an increased risk of failed negotiations and treaties when something, such as an idiot who can't keep his mouth shut at precisely the wrong moment causing negotiations to collapse.
For instance, China is making strong signals through its media channels that it regards Trump's rhetoric as an opening bid and not as intention on its face. But they're also quietly positioning for an all out trade war because you can't gamble with a country's assets, lives, and interests.
There's a few ways this could go. One is that the president elect is able to keep his mouth shut and let Tillerson *and the State Department* do their jobs. Or he undermines them by bloviating about whatever is on his mind, causing multiple diplomatic efforts to collapse. Or a country sees a model in Hillary's and our successful goading of him, inducing him to toss ill considered statements and insults out, allowing said country to express official grievance because the president "announced" a new counter policy. Or some other combination of scenarios, some good, mostly bad.
Frankly, I see high odds of us coming out on the short end more often than not because bullshit is by definition unserious. things could turn out well but I'm not confident.
Basically I don't remotely share your confidence in bullshittery when it comes to international relations.
@Tarrou This is my precise concern, and allegations of sexual misconduct are the perfect class of crime for this tactic. There are frequently no witnesses, no evidence and numerous shield laws protecting the accuser. Not to mention a complicit media willing to believe any story, no matter how outlandish. Just look at the UVA rape hoax.
Dredging something up from 10 years ago, where the evidence has been lost, and witnesses no longer remember, is just icing on the cake.
Pretty much the only way you can prove you didn't do it is for you to be able to prove it was physically impossible. A paper trail showing you were in another state. You recorded the encounter yourself showing it was completely consensual. Those are pretty much the only two ways I've heard.
I suspect the lower burden of proof in civil matters will also go a long ways towards making sure this sort of behavior proliferates. Not sure it will approach the scale of patent trolls, but it's clearly a legal sector ripe for exploitation the moment one of these lawsuits succeeds.
@Horkthane
I'll agree on principle that it's deeply disturbing. The idea that the act of denying an accusation can effectively be twisted into "you defamed them because you claimed they lied" is terrifyingly chilling.
That said, as a non-lawyer I suspect it's not quite as problematic in practice as it seems at first glance. The burden of proof in defamation cases is still on the person suing. If you accuse me of stealing from you, and I say you didn't, so you sue me for libel, it feels like you'd have to prove to the civil standard that I did indeed steal from you (thus proving the statement you made as true). I think I'm less concerned about the ease of proving it as I am about the pile-on effect. I may be very well less inclined to defend myself in public because I run the risk of adding another expensive and time consuming piece of litigation on top of what I'm already having to defend.
Would the fact that Trump won the election, thereby proving there are a lot of people that believed the things that he said, mitigate the batshit crazy rule? Yes, a bunch of over-educated, elitist snobs know Trump is full of shit, but it's pretty clear that a lot of people don't know that.
The problem I see with the "general tenor" defense is that it basically says that if you're only a little bit of an a–hole, you're in trouble, but if you're enough of an a–hole, we give you a pass.
Why should someone get a pass just because they're a truly outrageous a–hole?
Taking the case of Trump, and placing his conduct in the light–perhaps(?)–most favorable to him, his behavior is regularly what we "normal" folk would call rude, infantile, disturbing, and outrageous: but nothing in evidence to date suggests that he is actually mentally incompetent, that he doesn't understand the nature of his statements, or that he's otherwise incapable of determining wrong from right. Indeed, for all appearances' sake, he knows exactly what he's doing and does so for various reasons, some highly calculated: i.e., it drives media attention, gets his message out, discourages others from challenging him; but also sometimes, it appears, just because he's also actually a really big a–hole with a super thin skin. (And tiny fingers.)
I can see giving a pass to someone who can't cognitively understand that their conduct is defamatory; I can't see giving a pass to someone just because "total a–hole" is their permanent, but willful, state of existence.
Is merely making a claim, which logical entails defamatory conclusions, sufficient for a claim of defamation? Can a Holocaust denier sue people who assert that the Holocaust occurred?
I do find it interesting how, in this case, best practices in drafting a good complaint or answer in a suit (i.e., making denials or allegations with particularity, based on concrete fact) is actually a bad idea when it comes to avoiding a defamation suit. In other words, making vague accusations by calling someone "Lyin' Marco" is probably opinion, and thus outside the scope of defamation, but actually citing factual information to make specific assertions or denials, and standing by your statements, means that you can be liable if you're careless with those facts.
I understand from a legal standpoint why things have to be this way, but it's a bit sad that defamation law essentially disincentivizes the sorts of factual debates we should be having, and encourages the kinds of pointless arguments we have been having.
@Horkthane:
Do shield laws apply to civil suits? I understand the public policy reasons why they exist in criminal prosecutions, although rather than the blanket protections many states have in place, I would prefer to see whether if the same goals could be accomplished by having rules imposing severe sanctions against the defendant and his attorneys if they engage in the sort of intimidation tactics that rape shield laws are meant to guard against. However, I don't know if these same public policy goals also apply to civil suits that may tangentially involve sexual assault.
I'd love to see a post like this some time about Trump's ability to sue media outlets. I realize the media enjoy tremendous protection in their coverage of public figures. Still, a significant amount of what they have reported about Trump has been false, and a huge percentage of what they have reported has been technically true but written in a way designed to make readers believe untrue things. What would the emails from writer to editor need to say to prove libel? What it be possible to sue for fraud if outlets that claim to be trying to provide straight news can in fact be proven to be intentionally campaigning against the president?
So let me get this straight.
Man burns down one house, is guilty of arson.
Man burns down entire city, "oh well, that's just how he is!"
Is that an accurate analogy to the "full of shit" defense?
It just doesn't seem right that the way to be not liable for something is to do it MORE.
One more thought, if someone is on record as habitually full of shit, isn't that also evidence of actual malice, a la "reckless disregard for the truth"
@Mike B:
@Horkthane
But it still takes time and money to defend against such a suit, even if you end up winning. That's the problem.
____________________________________________________________________
@nhrpolitic13:
The thing is that defamation law is concerned with the plaintiff's reputation being damaged, and for the plaintiff's reputation to be damaged people have to believe that defendant's accusations. If the defendant is such a giant asshole that no one believes anything he says, there's no damage to reputation.
Of course, no matter how big the asshole, some people are going to believe his accusations, so the question is how many people need to believe?
Can this kind of "defense" be used against him next?
Basically, he'd be admitting being a compulsive liar in court.
This way, Trump himself cannot be used as a reliable witness, "amicus" or anything similar.
And so, the justice would be way better with him locking himself out of it.
:D