Donald J. Trump is a libel
bully. Like most bullies, he’s also a loser, to borrow from Trump’s vocabulary.
Trump and his companies have
been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent
countless threatening cease-and-desist letters to journalists and critics. [1]
But the GOP presidential
nominee and his companies have never won a single speech-related case filed in
a public court.
This article examines seven
speech-related cases brought by Trump and his companies, which include four
dismissals on the merits, two voluntary withdrawals, and one lone victory in an
arbitration won by default. Media defense lawyers would do well to remind Trump
of his sorry record in speech-related cases filed in public courts when
responding to bullying libel cease-and-desist letters.
Trump’s lawsuits are worthy of
a comedy routine, as when Trump sued HBO comedian Bill Maher for suckering
Trump into sending his birth certificate to prove he was not the “spawn” of an
orangutan, and Trump hit back with a $5-million breach-of-contract lawsuit,
only to withdraw it after the Hollywood Reporter ridiculed it. Can anyone say
Hustler v. Falwell? [2]
Orangutans and joking aside,
this examination of Trump’s libel losses also provides a powerful illustration
of why more states need to enact anti-SLAPP laws to discourage libel bullies
like Trump from filing frivolous lawsuits to chill speech about matters of
public concern and run up legal tabs for journalists and critics.
A. Trump Sues Architecture
Critic
Trump filed his first and
crankiest libel lawsuit in 1984 against the Chicago Tribune and the newspaper’s
Pulitzer Prize-winning architecture critic, Paul Gapp. Trump filed his libel
lawsuit in the U.S. District Court in the Southern District of New York. [3]
Trump claimed he suffered $500 million in damages. [4]
Gapp, who won the Pulitzer
Prize for criticism in 1979, dared to publish a “Design” column in the Sunday
Tribune Magazine on August 12, 1984 ridiculing Trump’s proposal to build the
tallest building in the world: a 150-story, nearly 2,000-foot tall skyscraper
on a landfill at the southeast end of Manhattan. [5]
Gapp wrote that Trump’s planned
office tower was “one of the silliest things anyone could inflict on New York
or any other city” and a kind of “Guinness Book of World Records architecture.”
Gapp’s column said the “only remotely appealing aspect” of Trump’s planned
office tower was that it would “not be done in the Fence Post Style of the
1970s.” The architect critic slammed the already-built Trump Tower as a “skyscraper
offering condos, office space and a kitschy shopping atrium of blinding
flamboyance.” Gapp wrote that Trump’s claim that the 150-story skyscraper would
architecturally balance the two World Trade Center towers on the opposite side
of lower Manhattan was mere “eyewash.” [6]
Gapp also gave an interview to
the Wall Street Journal, telling a reporter that Trump’s plan was “aesthetically
lousy” and complaining that the central part of Chicago “has already been
loused up by giant-ism.”
Trump filed a libel lawsuit in
New York, claiming that Gapp’s criticisms in the Tribune and the Journal were
false and defamatory.
Trump added an implication
allegation, alleging that the Tribune artist’s conception of his planned
building made the proposed skyscraper look like “an atrocious, ugly monstrosity”
– injecting words that were never used by Gapp – and claimed that Gapp’s
statements and the Tribune illustration “torpedoed his plans” to build the
office tower. [7]
The Tribune and Gapp filed a
Rule 12(b)(6) motion to dismiss on the grounds that Gapp’s statements and the
artist’s rendering were protected opinions, and U.S. District Judge Edward
Weinfeld agreed, granting the motion to dismiss. [8]
Judge Weinfeld gave Trump a
lesson in the First Amendment and politics: “Men in public life ... must accept
as an incident of their service harsh criticism, ofttimes unfair and
unjustified – at times false and defamatory – and this is particularly so when
their activities or performance may ... stir deep controversy” .... “De
gustibus non est disputandum, there is no disputing about tastes.” [9]
Judge Weinfeld, then 84,
reaffirmed the First Amendment rule that “[e]xpressions of one’s opinion of
another, however unreasonable, or vituperative, since they cannot be subjected
to the test of truth or falsity, cannot be held libelous and are entitled to
absolute immunity from liability under the First Amendment.” [10]
Judge Weinfeld explained that
opinions expressed in the form of “rhetorical hyperbole,” “rigorous epithets,” and “the most pejorative
of terms” are protected from liability, so long as the opinions do not veer to
into factual accusations, such as accusing someone of a crime, unethical
conduct, or the lack of professional integrity in a manner that would be proved
true or false. [11]
Judge Weinfeld stated that “this
court has no doubt that the statements contained in the Tribune article are
expressions of opinion.” [12] The court held that the “Design” heading and
title “architecture critic” informed the reader that the article “embodies
commentary” and is “cast in subjective terms,” especially since calling a
building “one of the silliest things” and not “appealing” are “highly personal
and subjective” judgments.” While “many ... would disagree with Mr. Gapp’s view
... there is no way the Court could instruct a jury on the process of
evaluating whether [a] statement is true”
when it comes to such “aesthetic matters.” [13]
The court also rejected Trump’s
claim that the Tribune artist’s rendering of the proposed tower was “false”
because it allegedly misrepresented his architectural plan.
Judge Weinfeld held that the sketch was not factual because it was
described as an “artist’s conception” and even if the drawing did imply that
the planned 150-story tower was “an atrocious, ugly monstrosity,” this is “precisely
the same sort of individual, subjective aesthetic opinion” that is not capable
of being subjected to “factual proof.” [14]
The court also called out Trump’s
doublespeak to which the American public is now quite familiar.
Trump argued that the artist’s
illustration in the Tribune did not accurately depict “his proposal” for the
building’s specific “tapered” design, but “at the same time” Trump was “equally
vehement in declaring that he has no plans and has not even engaged an
architect.” Judge Weinfeld said: “Plaintiff cannot have it both ways.” [15]
Of course this was not painless
victory for the Chicago Tribune; it spent $60,000 in legal fees to win the
motion to dismiss. [16]
New York’s anti-SLAPP statute
is limited to claims arising from the right to petition the government, and
does not protect speech outside of government proceedings, so the Tribune and
Gapp could not use the statute to dismiss the libel claim. If New York had a
SLAPP statute that protected speech about matters of public concern, the
Tribune and Gapp could have argued that they were being sued over speech about
a matter of public concern and brought a quick motion to dismiss based on their
absolute immunity for opinion and sought reimbursement of their $60,000 in
legal fees from Trump. [17]
B. Trump Sues Book Author
for Saying He Is Not a Billionaire
Trump’s next big libel lawsuit
was filed in New Jersey state court more than 20 years later.
This time, Trump alleged a whopping $5 billion in damages [18] in his
2006 libel lawsuit against book author Timothy O’Brien and his book publishers,
Time Warner Book Group, Inc. and Warner Books, Inc. [19]
Trump’s lawsuit claimed that O’Brien’s
2005 book, TrumpNation, The Art of Being The Donald, falsely reported that
Trump was “only” worth between $150 million to $250 million, nowhere near the
net worth claimed by Trump, which ranged from $4 billion to $5 billion to $6
billion to $9.5 billion. [20] Trump sued for libel, claiming he was really,
really worth billions of dollars.
Once again, Mr. Trump saw his
libel lawsuit tossed out of court, this time by New Jersey Superior Court Judge
Michele M. Fox, who granted the defendants’ motion for summary judgment based
on no actual malice, which was affirmed by a New Jersey appellate court. [21]
“Nothing suggests that O’Brien
was subjectively aware of the falsity of his source’s figures or that he had actual
doubts as to the information’s accuracy,” the New Jersey appellate court ruled.
[22]
The appellate court concluded
that “there is no doubt that Trump is a public figure” and that he failed to
meet his burden of proving the book’s statements about his net worth millions
was false was published with actual malice. [23] “Nothing suggests that O’Brien
was subjectively aware of the falsity of his source’s figures or that he had
actual doubts as to the information’s accuracy,” the New Jersey appellate court
ruled. [24]
The court held that O’Brien, an
experienced financial reporter and then the Sunday Business section editor at
the New York Times, relied on three confidential sources who gave “remarkably
similar” estimates of Trump’s actual net worth of between $150 million to $250
million. [25]
Earlier in the litigation, a
different trial court judge ordered O’Brien to produce the names of his
confidential sources, but the New Jersey appellate court reversed, holding that
the New Jersey’s qualified reporter’s privilege protected O’Brien’s right to
keep the identities of his confidential sources. [26] O’Brien produced his
notes from his interviews of those confidential sources in discovery, however.
The appellate court also
rejected Trump’s argument that O’Brien published with knowing falsity because O’Brien
rejected the financial information provided by Trump before the book was
published.
The court found that “it is
undisputable that Trump’s estimates of his own worth changed substantially over
time and thus [Trump] failed to provide a reliable source” to O’Brien to rebut
the confidential sources. [27]
Trump and his accountant were
their own worst enemies in their depositions. The accountant who prepared Trump’s
2004 Statement of Financial Condition admitted at his deposition that he never
verified whether Trump had been honest in listing all his debts and liabilities
for the accountant’s report, which Trump had provided to O’Brien for the book.
[28]
Trump was even more unreliable in his testimony about his net worth:
Q: Now Mr. Trump, have you
always been completely truthful in your public statements about your net worth
of properties?
A: I try.
Q: Have you ever been not
truthful?
A: My net worth fluctuates, and
it goes up and down with markets and with attitudes and feelings, even my own
feelings but I try.
Q: Let me just understand that
a little bit. Let’s talk about that for a second. You said that the net worth
goes up and down based on your own feelings?
A: Yes .... [29]
The court concluded that “Trump’s
estimates of his own worth changed substantially over time and thus failed to
provide ... reliable” evidence that proved O’Brien’s book false. [30] In other
words, Trump ran to the court complaining that the book falsely debunked Trump’s
claim of being a billionaire but utterly failed to provide any reliable
evidence to prove falsity.
Trump later complained about the dismissal of the lawsuit, displaying
his misunderstanding of the law of public figure and actual malice. “Essentially,
the judge just said, ‘Trump is too famous,’” he told the Atlantic magazine in
2013. “‘He’s so famous that you’re allowed to say anything you want about him.’”
[31] No wonder Trump wants to change libel law; he doesn’t understand it.
Trump later boasted to the
Washington Post that he didn’t mind losing after five years of litigation. “I
spent a couple of bucks on legal fees but they spent a whole lot more. I did it
to make [O’Brien’s] life miserable,
which I’m happy about.” [32]
That, ladies and gentlemen, is
a paradigm SLAPP lawsuit: good at harassing and draining the bank accounts of
critics, but ultimately a loser in court. New Jersey does not have an
anti-SLAPP statute.
C. Trump University Sues
Former Student
In 2010, Trump switched gears
and filed a libel suit on behalf of Trump University, his for-profit real
estate “school.” Trump U filed a $1-million libel lawsuit in 2010 in the U.S.
District Court for the Southern District in San Diego against Tarla Makaeff, a
former Trump U student, yoga instructor, and whistleblower. [33]
Trump U filed its libel lawsuit
against Makaeff after she filed a class-action lawsuit as the lead plaintiff
against Trump U and Trump for alleged deceptive business practices. In her
class-action lawsuit, she claimed she was tricked into raising her credit card
limit, ostensibly to buy real estate, but then Trump U persuaded her to use her
credit card to pay nearly $35,000 to enroll in an “elite” Trump U class. [34]
Trump U sued Makaeff for her
pre-litigation statements about Trump U when she posted on internet message
boards and wrote a letter to the Better Business Bureau and her bank requesting
a $5,100 refund for services charged by Trump U. Trump U claimed that she
defamed the school by claiming in her letters that that Trump U and its
affiliates engaged in “fraudulent business practices,” “deceptive business
practices,” “grand larceny,” “predatory behavior,” “criminal” business
practices, and used “trickery” and “fraud” to persuade her to open a new credit
card, which she called “grand larceny” and “identity theft.” [35]
Makaeff took advantage of
California’s anti-SLAPP statute to file a special motion to strike Trump U’s
libel counterclaim. The California statute allows defendants to bring quick
motions to strike speech-related claims that target speech about a matter of
public concern and are meritless because the plaintiff cannot show a
probability of prevailing. [36]
Makaeff argued that Trump U’s
claim was subject to dismissal under the two-part test of the anti-SLAPP
statute because: (1) the claim arose from her exercise of speech about a matter
of public concern – Trump U’s deceptive business practices and her statements
about consumer protection; and (2) Trump U could not show a “probability of
prevailing” on the merits of the defamation claim because Trump U was a public figure
lacking evidence that Makaeff published with actual malice. [37]
U.S. District Judge Irma
Gonzalez, who was initially assigned to the case, held that Trump U’s libel
claim came under the protection of the anti-SLAPP statute because the claim
arose from Makaeff’s statements about “consumer protection information,” which
was a matter of public concern. But Judge Gonzalez denied Makaeff’s anti-SLAPP
motion on the grounds that Trump U was not a public figure and had established
a probability of prevailing on its libel claim under the negligence standard
for private figures. [38]
The Ninth Circuit Court of
Appeals affirmed the lower court’s holding that Trump U’s libel claim came
under the protection of the anti-SLAPP statute, but reversed the lower court’s
holding that Trump U was a private figure, and held that the for-profit school
is a limited purpose public figure due to its use of “aggressive advertising
campaign” on the internet, newspapers, and radio, and sent the case back to the
district court to decide if Trump U could prove actual malice. [39]
On remand, the case was
assigned to U.S. District Judge Gonzalo P. Curiel, who granted Makaeff’s
anti-SLAPP motion and dismissed Trump’s $1-million libel claim in 2014. The
court held that Trump U could not meet his burden of showing a probability of
prevailing because Makaeff believed the truth of her statements and Trump
lacked evidence that Makaeff’s statements were made with actual malice. [40]
The court also ordered Trump U
to pay nearly $800,000 for Makaeff’s attorney’s fees and costs. [41] The legal
fees order is on hold pending the outcome of the class action lawsuit.
Six years into her class-action
lawsuit, which has still not gone to trial, Makaeff was shell-shocked how she
had been “put through the wringer,” developed health problems, and was having a
hard time finding work due to the high-profile nature of the case, and she was
permitted by Judge Curiel to withdraw as lead plaintiff in 2016. [42]
As for Judge Curiel, he has
been subjected to repeated verbal attacks by Trump, who called the judge “a
hater of Donald Trump” with “hostility toward me.” Trump incorrectly claimed
that the Indiana-born Latino judge was “Spanish” and “Mexican” and contends
that the judge is biased against Trump due to his campaign pledge to build a
wall between the United States and Mexico. Trump never filed a recusal motion,
and has hinted that he might bring a “civil” lawsuit against Curiel after the
election. [43]
D. Trump Sues Miss
Pennsylvania
Trump’s corporate lawyer
Michael Cohen recently cited the sole Trump & Co. defamation victory – a
default judgment – to bully another reporter.
“Do you want to destroy your
life?” Cohen asked a Daily Beast reporter last year. “It’s going to be my
privilege to serve it to you on a silver platter like I did that idiot from
Pennsylvania in Miss USA, because I think you are dumber than she is.” Cohen
said. “Sheena Monnin, another one that wanted to defame Mr. Trump and ended up
with a $5 million judgment. That’s going to be nothing compared to what I do to
you.... So I’m warning you, tread very fucking lightly, because what I’m going
to do to you is going to be fucking disgusting. You understand me?” [44]
Monnin, a former Miss
Pennsylvania, tangled with Trump when she entered the 2012 Miss USA Pageant
along with 50 other contestants, and was soon eliminated. [45]
While waiting in the wings
during the telecast, Monnin claims that another contestant confided that she
had seen a list of the five finalists and the ultimate winner – Miss Rhode
Island – and the outcome had been predetermined by pageant officials. [46]
The next day, Monnin told her
agent she was resigning from her post as 2012 Miss Pennsylvania and from the
Miss Universe pageant because she believed the Miss USA pageant was “rigged”
and because she did not agree with the pageant’s decision to allow
transgendered contestants.
Monnin posted on her Facebook
page about her resignation, saying she was quitting “an organization I consider
to be fraudulent, lacking in morals, inconsistent and in many ways trashy.” [47]
The next day, Monnin posted on her Facebook page the details about the reputed
list, saying the “show must be rigged” and was “dishonest.” [48]
Trump, who helps run the Miss
USA pageant as an equity partner with the Miss Universe L.P. company, quickly
escalated the dispute by appearing on Good Morning America to refute Monnin’s
Facebook claims, saying she had “loser’s remorse” and that her allegations were
“disgraceful.” Monnin responded by appearing on The Today Show to explain and
repeat her allegations from her Facebook page.
Trump’s Miss Universe pageant
filed a $10-million claim against Monnin with JAMS, the private arbitration
service mandated by Monnin’s Miss USA contract, asserting claims against Monnin
for defamation, tortious interference with prospective economic advantage, and
breach of contract. [49]
Monnin said she got bad advice
from her lawyer, who repeatedly told her that she was not required to attend
the arbitration, only to tell Monnin later that he could not represent her
because he was not admitted to practice law in New York. [50]
With Monnin and her attorney
absent from the arbitration proceeding, no one provided any evidence to rebut
testimony that Miss USA supposedly suffered $5 million in damages because the
oil company BP, formerly known as British Petroleum, allegedly backed out of
its reputed plan to provide a $5-million sponsorship fee due to BP’s alleged
concern about Monnin’s allegations. [51]
The JAMS arbitrator, retired
U.S. Magistrate Judge Theodore H. Katz, held that Monnin’s statements were
false, defamatory, and published “with actual malice,” and awarded the Miss
Universe company its full $5 million defamation damages claim. [52] The
arbitrator dismissed the tortious interference and contract claims.
Monnin filed a motion in the
U.S. District Court for the Southern District of New York to vacate the
$5-million defamation award, arguing that Monnin failed to receive proper
notice of the arbitration, received ineffective counsel from her lawyer, the
arbitrator exceeded his authority and exhibited “manifest disregard for the law”
by finding liability without any evidence that BP cited Monnin’s comments as
the reason for withdrawing its planned pageant sponsorship. [53]
As Monnin pointed out, the
arbitrator awarded the full $5-million sponsorship fee award to Trump’s pageant
company even though no one from BP testified at the arbitration. The arbitrator
relied solely on hearsay testimony from a Miss USA pageant employee who
testified that BP withdrew its $5 million sponsorship fee. [54]
Although this was not raised by
Monnin, the arbitrator appeared to apply the negligence standard instead of the
required actual malice standard when he cited the following evidence of Monnin’s
actual malice: she made “malicious” statements as a “disgruntled contestant,”
her “rigged” allegation was “highly improbable,” she “made no attempt to seek
verification” of her claim with other sources, she failed to respond to
discovery demands, failed to appear to argue the truth of her statements, and
lost by default. [55]
On July 2, 2013, U.S. District
Judge J. Paul Oetken rejected all of Monnin’s challenges and affirmed the arbitrator’s
$5 million default judgment. While Judge Oetken expressed “ [s]ympathy” that
Monnin “is suffering from her poor choice of counsel” and agreed that her
lawyer acted “unconscionably,” he declined to vacate the judgment because the
arbitrator relied on evidence to support his decision and the “apparent
inequity” of the default judgment was not enough for the federal court vacate
the judgment under the very protective rules for arbitration awards. [56]
Monnin later sued her former
New Jersey lawyer for malpractice in Camden County (New Jersey) Superior Court
in 2013, [57] and her father, Phillip Monnin, contends his daughter did not pay
“a penny” of the $5 million judgment when Trump’s attorney filed a notice of
satisfaction of the full $5 million Miss Universe L.P. v. Monnin arbitration
award. [58]
For Trump to boast about winning this arbitration claim is misleading.
The arbitrator never heard any rebuttal to the factual allegations and legal
theories made by Trump’s pageant company, the judgment was not subject to the
full appellate review available to litigants in public courts, and Monnin’s
attorney acted “unconscionably.”
E. Trump Sues Maher About
Orangutan Joke
Trump has zero sense of humor.
But, boy, can he file a hilarious lawsuit! He proved that much when he sued HBO
Real Time cable television show host Maher for not making good on Maher’s joke
that Maher would donate $5 million to charity if the orange-haired and
orange-tinged Trump could provide a birth certificate showing that Trump was
not the “spawn of his mother having sex with an orangutan.” [59]
At the time, Trump was
exploring a run for the GOP presidential nomination and Maher made his donation
joke as part of his political comedy shtick ridiculing Trump’s “racist” and
false “birther” claim that President Obama, our first African American
president, was born in Kenya, not the United States, and Trump’s offer to pay
$5 million to charity if Obama produced his birth certificate. [60]
Trump’s lawyer responded by
sending Maher a copy of Trump’s birth certificate, “demonstrating he is the son
of Fred Trump, not an orangutan,” and a “formal acceptance” letter directing
Maher to divvy up his $5 million donation among five charities. [61]
When Maher did not cut a donation check, Trump filed a $5-million “breach
of contract” lawsuit in Los Angeles Superior Court against Maher. [62] Exhibit A of his lack of a sense of humor
(literally it was Exhibit A): Trump attached a transcript of Maher’s appearance
on the Tonight Show with Jay Leno to prove Trump thought Maher’s offer was
serious, including Maher’s offer to “donate to a charity of his choice ....
Hair Club for Men, The Institute for Incorrigible Douche-bag-ery. Whatever
charity!” [63]
Trump thought it was important
to state in his lawsuit that a 2011 Newsweek poll showed he would “enjoy the
support of 41% of voters in a hypothetical race against President Obama.” [64]
Trump was roundly ridiculed by
the Hollywood Reporter for filing such a frivolous lawsuit. [65]
It was obvious to media lawyers
that Maher could seek a quick dismissal under the U.S. Supreme Court decision
Hustler, which held that statements about a public figure reasonably understood
to be a caricature, parody, or satire – a joke – are not actionable under any
theory of liability claiming a falsehood. [66]
Maher also had a very good
chance of winning an anti-SLAPP motion under California’s anti-SLAPP statute.
Although Trump’s lawsuit against Maher was labeled a “breach of contract”
lawsuit, Trump’s lawsuit targeted Maher’s speech about a matter of public
concern – Maher’s critique of Trump’s “racist,” anti-Obama birther campaign
while Trump explored a presidential bid [67] As it turns out, Trump’s birther campaign
likely helped catapult Trump to the GOP presidential nomination three years
later.
Shortly after filing his
frivolous lawsuit against Maher, Trump quickly withdrew it, and his lawyer said
he would refile an amended complaint. [68] He never did.
F. Trump Hotel Sues
Bartender and Culinary Unions
By 2015, Trump was an actual
GOP candidate for the presidential nomination and more aggressive in using
lawsuits to chill negative speech about him. He was probably fed up with losing
libel claims and being blocked by the First Amendment and became more creative
trying to avoid the defamation label and his old foe, the First Amendment.
On October 5, 2015, Trump gave
a campaign speech at the Treasure Island Hotel & Casino, a rival hotel.
Outside the hotel, culinary workers and bartenders trying to organize a union
at the Trump Hotel Las Vegas handed out flyers saying that Treasure Island
Hotel & Casino employed unionized workers while Trump “refused to agree to
a fair process for workers at his hotel to form a union.” The workers’ flyers
asked “If Trump choses to stay at a union hotel, why can’t Trump Hotel workers
choose to form a union.”
Trump sued the culinary and
bartender labor unions that organized the protest in U.S. District Court in the
District of Nevada, claiming the flyers hurt his hotel’s reputation by falsely
implying that he had not stayed at his own hotel due to lesser quality. Instead
of suing for libel, the companies sued the unions for violating Section 43(a)
of the federal Lanham Act for alleged false advertising and for violating
Nevada’s deceptive trade practices law. Trump sued in the name of his hotel
companies, Trump Ruffin Commercial LLC and Trump Ruffin Tower I LLC. [69]
There was just one problem with
the Trump hotel lawsuit, according to Chief U.S. District Court Judge Gloria M.
Navarro. To make out a case for false advertising, Trump’s hotel needed to
allege that the workers’ allegedly false statements were “commercial speech,”
that is, to propose a commercial transaction.
The court found that even if
the workers’ statements were “intended to, and would have the tendency to cause
harm to the reputation of Trump Hotel Las Vegas,” the workers’ statements did
not qualify as commercial speech under the Lanham Act because they were not proposing
a commercial transaction.
Judge Navarro dismissed the
Lanham Act claim without prejudice on August 8, 2016, holding that Trump’s
hotel companies failed to allege that the labor unions were engaged in
commercial speech, and dismissed the state law claim due to lack of
jurisdiction. [70] The Trump hotel companies chose not to file an amended
complaint and voluntarily dismissed the lawsuit, [71] and the court closed the
case.
Once again, Trump’s attempt to
escape the burdens of libel law and the First Amendment by pleading a non-libel
claim failed.
G. Trump Sues to Make Clear
He Is Not a Racist Mass Murderer
Not only does Trump lack a
sense of humor, he doesn’t know from rhetorical hyperbole. We got the message
loud and clear from Trump’s $2.5 billion lawsuit against television network
Univision Networks & Studios, Inc. and its programming chief Albert
Ciurana.
In his 2015 lawsuit, Trump
filed claims for breach of contract, intentional interference with contractual
relationships, and defamation arising from the Spanish-language network’s
decision to stop airing Trump’s beauty pageants after Trump stated during his
presidential campaign announcement that Mexican immigrants were “rapists” and
criminals.
Trump alleged that he was
defamed to the tune of $1 billion by Ciurana’s Instagram post of Trump’s photo
side-by-side with a photo of accused Southern white supremacist mass murderer
Dylann Roof with the caption “Sin commentaries,” or “No comments.” [72] Ciurana
posted the Instagram photos shortly after Trump’s “rapists” and criminals
statement, and later apologized.
Trump claimed that given the “target
audience” of Ciurana’s post, “a reasonable person could understand Mr. Ciurana
to be stating that Mr. Trump had committed heinous acts similar to Roof, and/or
that Mr. Trump had incited others to commit similar heinous acts.” [73]
Without an ounce of irony,
Trump wanted to make it clear in his lawsuit that he is not a racist mass
murderer: “This statement [the alleged
implication of the Instagram post] is patently false,” Trump alleged, “because
as Defendants well knew (or should have known) at the time (and still) Mr.
Trump has never committed heinous acts similar to Roof’s and never incited Roof
or anyone else to commit such heinous acts.” [74]
Univision and Ciurana filed a
motion to dismiss, arguing that the Instagram post was not a statement of fact,
but a “visual satire” and an expression of a personal opinion by Ciurana, a
Mexican immigrant himself, about Trump’s qualifications as a candidate for
president, which is quintessential political speech protected by the First
Amendment. The defendants chided Trump for not remembering that he lost his
first defamation case against the Chicago Tribune for failing to understand the
protection of opinion.
Univision and Ciurana also
argued that the satirical post simply compared the two men’s similar frowns and
hair, and that it would be a “stretch” and “far from plausible” that the post
conveyed that both Roof and Trump “hold comparably racist views,” but even if
that was the message, this message still would be protected opinion. [75] The
breach of contract claim was frivolous, Univision argued, because Trump had
already breached the contract by pushing away all the advertisers and viewers
of the planned first-ever Spanish-language version of Trump’s beauty pageants
with his offensive comments about Mexican immigrants who formed a large part of
the Univision audience.
Shortly before oral argument on
the motion to dismiss, Trump and co-plaintiff Miss Universe L.P., LLLP filed a
notice of voluntary dismissal of their lawsuit with prejudice on Feb. 11, 2016,
depriving us of what promised to be a very interesting oral argument. The
parties announced a confidential settlement of the lawsuit but only mentioned
the settlement of the contract claim, [76] so I count the dismissal of the
defamation claim as another loss to Trump.
More Anti-SLAPP Statutes Are
Needed
Trump has pledged to get
revenge on the First Amendment. Trump has promised “to open up our libel laws
so when they write purposely negative and horrible and false articles, we can
sue them and win lots of money.” [77]
Trump’s campaign pledge
misrepresents and misunderstands libel law. The First Amendment already
punishes “purposely ... false articles” about powerful public figures like
Trump and his companies. It’s called publishing with actual malice. [78] Trump
has never been able to prove actual malice in a public trial court.
Trump’s speech-targeting
lawsuits filed in public courts were doomed to failure because the First
Amendment protects good-faith reporting about public figures (that is,
published without actual malice) and immunizes subjective opinions and jokes,
even if they are “negative” and “horrible,” as Trump complains.
Journalists and whistleblowers may have won
dismissal of Trump’s libel lawsuits, but at significant cost of time, energy,
and money.
State legislatures should enact
more anti-SLAPP statutes allowing defendants to quickly dismiss meritless
lawsuits targeting speech about matters of public concern. [79] Over two dozen
states have enacted these statutes. [80] A federal anti-SLAPP law has been
proposed. Many state statutes require plaintiffs like Trump to pay the
prevailing defendant’s legal fees, as Trump University discovered in California
when the court granted a former student’s anti-SLAPP motion dismissing the
school’s flawed libel claim and ordered Trump University to pay nearly $800,000
in attorney’s fees. [81] A federal anti-SLAPP law has been proposed.
These anti-SLAPP laws, while not perfect, would help discourage
frivolous libel lawsuits favored by Trump & Co. Instead of labeling
frivolous, speech-targeting lawsuits “SLAPP suits,” perhaps we should call them
“Trump Suits.”
Susan
Seager is a First Amendment attorney who teaches media law to journalism
students at the University of Southern California. [It means what it means.]
Notes
[1] A 2016 study by USA TODAY
located over 4,000 lawsuits filed by or against Trump and his companies over
three decades, an unprecedented number for a presidential nominee. USA TODAY
located seven speech-related lawsuits or arbitrations filed by Trump and his
companies. USA TODAY Network: Dive into Donald Trump’s thousands of lawsuits,
USA TODAY, http://usatoday.com/pages/interactives/trump-lawsuits/, Nick
Penzenstadler, New USA TODAY interactive database shows Trump lawsuits surpass
4,000, USA TODAY (July 7, 2016),
http://www.usatoday.com/story/news/politics/onpolitics/2016/07/07new-usa-today-interactive
-database-shows-trump-lawsuits-surpass-4000/86809010/. This article examines
the seven speech-related lawsuits or arbitration proceedings brought by Trump
and his companies discussed by USA TODAY and located in an independent search
by the author.
[2] 485 U.S. 46, 56-57 (1988) (statements not
reasonably understood as stating facts – in this instance a parody
liquor-and-sex advertisement in Hustler magazine poking fun at the Rev. Jerry
Falwell – are not actionable under any theory of liability based on an alleged “false”
publication, even if the statements are “offensive” and “vulgar”).
[3] Trump v. Chicago Tribune Co., 616 F. Supp.
1434 (S.D.N.Y. 1985) (Trump I).
[4] Nat Hentoff, Citizen Trump, Wash. Post
(Oct. 19, 1985), http://www.washingtonpost.com/archive/politics/1985/10/19/citizen-trump/88efc4ba-6c1e-4226-8924-4101-=a60f5478/
[5] Trump I, 616 F. Supp. at 1434.
[6] Id. at 1435.
[7] Id.
[8] Id. at 1436.
[9] Id.
[10] Id. at 1435 (citations and quotations
omitted).
[11] Id., citing Letter Carriers v. Austin,
418 U.S. 264, 284 (1974) and Greenbelt Pub. Assn v. Bresler, 398 U.S. 6, 14
(1970). Although Judge Weinfeld’s decision in Trump v. Chicago Tribune Co. was
issued in 1985, before the U.S. Supreme Court narrowed its protection for
opinions in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), Judge Weinfeld’s
decision was based on the protection for non-factual, hyperbolic opinions and
remains good law.
[12] Trump I, 616 F. Supp. at 1436.
[13] Id.
[14] Id. at 1438.
[15] Id.
[16] Hentoff, supra note 4.
[17] SLAPP suits are meritless lawsuits that
target speech about a matter of public concern. SLAPP is an acronym for
Strategic Litigation Against Public Participation. See generally Cal. Civ.
Proc. Code § 425.16.
[18] Paul Farhi, What really gets under Trump’s
skin? A reporter questioning his net worth, Wash. Post (March 8, 2016),
https://www.washingtonpost.com/lifestyle/style/that-time-trump-sued-over-the-size-of-hiswallet/2016/03/08/785dee3ee-e4c2-11e5-bofd-073d5930a7b7_story.html
[19] Trump v. O’Brien, 29 A.3d 1090, 1092
(N.J. Super. Ct. App. Div. 2011) (Trump II).
[20] Id. at 1092-1093.
[21] Id. at 1094-1095.
[22] Id. at 1101.
[23] Id.
[24] Id. at 1101.
[25] Id. at 1092,1097.
[26] Id. at 1094, citing Trump v. O’Brien, 958
A.2d 85 (N.J. Super. Ct. App. Div. 2008) (Trump III) (defendants did not have
to disclose confidential source identities).
[27] Id. at 1099-1100.
[28] Id. at 1099.
[29] Id.
[30] Id. (emphasis added).
[31] Farhi, supra note 18.
[32] Id.
[33] Makaeff v. Trump University, LLC, 715
F.3d 254, 260 (9th Cir. 2013) (Makaeff I).
[34] Id.
[35] Id.
[36] Cal. Civ. Proc. Code § 425.16.
[37] Id. at 260-261, citing Cal. Civ. Proc.
Code § 425.16.
[38] Id.
[39] Id. at 268, 271-272.
[40] Makaeff v. Trump University, LLC, No.
10-cv-00940, ECF No. 328 (S.D. Cal. June 17, 2014) (Makaeff II).
[41] Makaeff v. Trump University, LLC, No.
10-cv-00940, ECF No. 331 (S.D. Cal. April 9, 2015) (Makaeff III) (awarding
$790,083.40 in fees and $8,695.81 in costs).
[42] Makaeff v. Trump University, LLC, No.
10-cv-00940 , ECF No. 472 (S.D. Cal. March 21, 2016) (Makaeff IV).
[43] Maureen Groppe, What Trump has said about
Judge Curiel, IndyStar (June 11, 2016),
http://www.indystar.com/story/news/2016/06/11/what-trump-has-said-judge-curiel/85641242/
[44] Trump Lawyer Bragged: I ‘Destroyed’ a
Beauty Queen’s Life, Daily Beast (July 31, 2015),
http://thedailybeast.com/articles/2015/07/31d/trump-lawyer-bragged-i-destroyed-a-beauty-queen-s-life.html.
[45] Miss Universe L.P., LLLP v. Monnin, 952
F.Supp.2d 591, 594 (S.D.N.Y. 2013) (Monnin I).
[46] Id. at 594-95.
[47] Id. at 595.
[48] Id. at 596.
[49] Id. at 597.
[50] Id. at 603-606.
[51] Id. at 598.
[52] Id. at 598.
[53] Id. at 600-610. See also Miss Universe
L.P., LLLP v. Monnin, No. 12-cv-09174, ECF No. 17 (S.D.N.Y Feb. 5, 2013).
[54] Miss Universe L.P., LLLP v. Monnin, No.
12-cv-09174, ECF No. 17 (S.D.N.Y Feb. 5, 2013).
[55] Miss Universe L.P., LLLP v. Monnin, No.
12-cv-09174, ECF No. 1 (S.D.N.Y Dec. 17, 2012).
[56] Monnin I, 952 F.Supp.2d at 610.
[57] Monnin v. Klineburger & Nussy, No.
L-4505-13 (Nov. 4, 2013 N.J. Super. Ct., Camden Cty); see also Joshua Alston,
Pageant Queen Blames NJ Firm For $5M Miss Universe Win, Law360 (Nov. 8, 2013),
http://www.law360.com/articles/487678/pageant-queen-blames-nj-firm-for-5m-miss-universe-win
[58] Nick Penzenstadler, Trump, Bill Maher and
Miss Pennsylvania: The ‘I’ll sue you’ effect, USA Today (July 11, 2016),
http://www.usatoday.com/story/news/politics/elections/2016/2016/07/11/trump-bill-maher-and-miss-pennsylvania-Il-sue-you-effect/85877342/;
see also Miss Universe L.P., LLLP v. Monnin, No. 1:12-cv-09174, ECF No. 27
(S.D.N.Y Aug. 15, 2014).
[59] Trump v. Maher, No. BC 499537 (Los
Angeles Super. Ct. Feb. 4, 2013),
http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/Trump_Maher.pdf.
[60] Id.
[61] Id.
[62] Id.
[63] Id. at Exhibit A.
[64] Id.
[65] Eriq Gardner, Why Donald Trump is Likely
to Lose a Lawsuit Against Bill Maher (Analysis), Hollywood Reporter (Feb. 3,
2013), http://hollywoodreporter.com/thr-esq-why-donald-trump-is-lose-417806.
[66] Hustler, 485 U.S. at 56-57.
[67] See Cal. Civ. Code § 425.16(e)(4)
(allowing defendant to bring anti-SLAPP motion to dismiss “a claim” arising
from speech “in connection with a public issue or an issue of public interest”).
[68] Eriq Gardner, Donald Trump Withdraws Bill
Maher Lawsuit, Hollywood Reporter (April 3, 2013),
http://hollywoodreporter.com/thr-esq-donald-trump-withdraws-bill-maher-432675.
[69] Trump Ruffin Commercial, LLC v. Local
Joint Executive Board Las Vegas, Culinary Workers Union Local 226, No.
15-cv-01984, ECF No. 1 (D. Nev. ).
[70] Trump Ruffin Commercial, LLC v. Local
Joint Executive Board Las Vegas, Culinary Workers Union Local 226, No.
15-cv-01984, 2016 WL 4208437 (D. Nev. Aug. 8, 2016).
[71] Trump Ruffin Commercial, LLC v. Local
Joint Executive Board Las Vegas, Culinary Workers Union Local 226, No.
15-cv-01984, ECF No. 21. (D. Nev. Aug. 17, 2016).
[72] Miss Universe L.P., LLLP v. Univision
Networks & Studios, Inc., No. 15-cv-05377, ECF No. 22 (S.D.N.Y. Nov. 6,
2015).
[73] Id.
[74] Id. (emphasis added).
[75] Miss Universe L.P., LLLP v. Univision
Networks & Studios, Inc., No. 15-cv-05377, ECF No. 25 (S.D.N.Y. Dec. 4,
2015).
[76] Nick Niedzwiadek, Donald Trump, Univision
Settle Lawsuit over Miss Universe Pageant, Wall Street Journal (Feb. 11, 2016),
http://www.wsj.com/articles/donald-trump-univision-settle-lawsuit-over-miss-universe-pagaent-1455220440;
see also joint statement,
http://corporate.univision.com/2016/02/donald-j-trump-and-univision-reach-settlement/
[77] Trump declared the following at his Feb.
26, 2016 campaign rally in Fort Worth, Texas: “I’m going to open up our libel
laws so when they write purposely negative and horrible and false articles, we
can sue them and win lots of money. We’re going to open up those libel laws. So
when the New York Times writes a hit piece which is a total disgrace or when
the Washington Post, which is there for other reasons, writes a hit piece, we
can sue them and win money instead of having no chance of winning because they’re
totally protected.” Hadas Gold, Donald Trump: We’re going to ‘open up’ libel
laws, Politico (Feb. 26, 2016),
http://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866
[78] New York Times Co. v. Sullivan, 376 U.S.
254, 279-80 (1964) (public official must prove actual malice to win libel case);
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 346 (1974) (same for public
figure).
[79] E.g., Cal. Civ. Code § 425.16.
[80] State-by-state guide, Reporters Committee
for Freedom of the Press,
https://www.rcfp.org/slapp-stick-fighting-frivolous-lawsuits-against-journalists/state-state-guide
[81] Makaeff III, relying on Cal. Civ. Proc.
Code § 425.16(c)(1) (“a prevailing defendant on a special motion to strike
shall be entitled to recover his or her attorney’s fees and costs”) (emphasis
added).
