Donald Trump Learns Why It's Important Not To 'Open Up' Libel Laws, As Suit Against Him Is Tossed
from the good-ruling dept
Donald Trump famously said during the campaign that, if elected, he would "open up" our libel laws. Of course, after he was elected, in an interview with the NY Times, he walked back some of that promise, noting that someone had pointed out such laws might be used against him too:MARK THOMPSON: Thank you, and it’s a really short one, but after all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?And now he's had some more time to think about that, and hopefully he's pretty happy with how carefully our libel laws are designed to protect free speech, because they just protected Donald Trump himself from a questionable defamation lawsuit. The lawsuit was filed by Cheryl Jacobus about some tweets from the now-President elect. As summarized by Eriq Gardner over at The Hollywood Reporter:
TRUMP: Oh, I was hoping he wasn’t going to say that. I think you’ll be happy. I think you’ll be happy. Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’ So, I, I think you’ll be O.K. I think you’re going to be fine.
Jacobus sued Trump and his former campaign manager Corey Lewandowski over comments made in the midst of a heated Republican primary. Seeking $4 million in damages, she alleged in her complaint that the Trump campaign tried to recruit her in May 2015, even attempting to entice her with the prospect of a post-campaign job at Fox News. She says Lewandowski told her that Trump was very close to Roger Ailes. She further claimed of coming to the judgment that working for Trump was untenable because Lewandowski was a "powder keg."Trump filed for a motion to dismiss, and argued that his statements were purely opinion -- and the judge in her ruling agreed to dismiss the case, pointing, in particular, to the nature of debate and rhetoric on Twitter. As the ruling properly notes, "context is key."
In January 2016, she appeared on CNN to discuss Trump's decision to skip a primary debate on Fox News and opined that Trump was "using the Megyn Kelly manufactured kerfuffle as an excuse." A few days later, she returned to Don Lemon's show and was dubious about Trump's claims of self-funding his campaign.
This may have set Trump off. In one tweet, he wrote how he "turned her down twice and she went hostile. Major loser, zero credibility."
As context is key..., defamatory statements advanced during the course of a heated public debate, during which an audience would reasonably anticipate the use of "epithets, fiery rhetoric or hyperbole," are not actionable.Later in the ruling, the judge pointed out that a bunch of angry tweets are quite different than, say, an investigative article in the NY Times.
In addition, "[t]he culture of Internet communications, as distinct from that of print media, such as newspapers and magazines, has been characterized as encouraging a 'freewheeling, anything-goes writing style.'".... ["Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns."]). Thus, "epithets, fiery rhetoric or hyperbole" advanced on social media have been held to warrant an understanding that the statements contained therein are "vigorous expressions of personal opinion" "rather than the rigorous and comprehensive presentation of factual matter." .... [reasonable reader would believe that statements made on an Internet blog during sharply contested election generally referencing "downright criminal actions" were opinion, "not factual accusation of criminal conduct"]).And what that leads to is Trump's statements simply aren't defamation -- because our defamation laws are designed to (1) protect freedom of expression and (2) take context into account:
Consequently, "New York courts have consistently protected statements made in online forums as statements of opinion rather than fact."....
Similarly, comments made on television talk shows, given the "give and take" of the show, and the "spirited" verbal exchanges between the host and guest, and the "at times heated" "interplay with audience members," are deemed nonactionable opinion.
Trump's characterization of plaintiff as having "begged" for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff's a state of mind and is therefore, not susceptible of objective verification.... To the extent that the word "begged" can be proven to be a false representation of plaintiff's interest in the position, the defensive tone of the tweet, having followed plaintiff's negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel. Lewandowski's comments, overall, are speculative and vague, and defendants' implication that plaintiff was retaliating against them for turning her down, notwithstanding the unmistakable reference to her professional integrity, is clearly a matter of speculation and opinion.Got that? The very nature of our libel laws are designed to enable and encourage public discourse and debate -- even recognizing that it sometimes gets heated and involves insults -- and Twitter, blogs and social media are some of the best representations of that. This is why Trump should be quite happy that our libel laws are as they stand today, and that there's a strong First Amendment bar that has to be cleared to bring a defamation lawsuit against someone, like Donald Trump, who engages in name calling and verbal attacks on someone he disagrees with. This is exactly what the First Amendment is about:
Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump's regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable.... His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as "loser" or "total loser" or "totally biased loser," "dummy" or "dope" or "dumb," "zero/no credibility," "crazy" or "wacko," and "disaster," all deflecting serious consideration....
... with the spirit of the First Amendment, and considering the statements as a whole (imprecise and hperbolic political dispute cum schoolyard squabble), I find that it is fairly concluded that a reasonable reader would recognize defendants' statements as opinion, even if some of the statements, viewed in isolation could be found to convey facts. Moreover, that others may infer a defamatory meaning from the statements does not render the inference reasonable under these circumstances.And that, right there, is why we have strong defamation laws. Even if you dislike Trump and what he stands for (and if you dislike his petty squabbles on Twitter), you should celebrate this ruling for a variety of reasons: it upholds the First Amendment and supports free expression online and it helps demonstrate to Trump himself how important the protections built into our defamation laws today can be.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cheryl jacobus, defamation, donald trump, first amendment, free speech, hyperbole, open up libel laws, opinion
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re: delivered via a monitor
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I know you're being facetious, but, no, I'm not surprised. Trump only cares about Trump. He's all for redefining libel when it enables him to sue news outlets, but he once he realized that he can be sued for some of his behavior under the new libel definition, he put the brakes on immediately.
[ link to this | view in chronology ]
I somehow doubt it, and he definitely wouldn't admit it if he did.
[ link to this | view in chronology ]
Re:
If this were to happen to a child who held the office of POTUS, could the lawsuit also ask to be made whole for damages ensuing from such learning?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Cat got your tongue, Mike? You haven't recently told us how much smarter you are than Shiva.
Where did Mike say anything like that at all? All I saw was Ayyadurai's claims being rebutted with the truth.
You do realize that the truth is an absolute defense against defamation, don't you?
[ link to this | view in chronology ]
Re: Re:
So is it true that Shiva actually lied, as Mike claims? I don't see how. He just did what Mike loves to do: Narrowly define something and then make claims that others don't find reasonable or persuasive. Those two are meant for each other!
[ link to this | view in chronology ]
Re: Re: Re:
Example?
Well, other than the milestones in the invention and use of email - before Ayyadurai came along - being exceptionally well documented, with Mike providing plenty of citations.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Mike's silence tells me that he (a) has a good lawyer, and (b) is mature enough to have impulse control, which you appear to lack.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
If it were *synchronous* it would be "instant messaging." Synchronous means real-time communication, like instant messaging, IP telephony or streaming video.
Nice try though.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
If Tomlinson's transmission was synchronous - and I wouldn't count on that - your claim is still wrong. Asynchronous email still long predates Ayyadurai's system.
Read RFC 524, RFC 561, RFC680, RFC 724, and RFC 733. All standardizing email sent via email servers, that is, asynchronously. All pre-dating Ayyadurai's system.
Saying "It's just one example" is telling, when it's the only example you can come up with and it's a totally invalid example.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Whether that's the true first email or not is a matter of opinion, not fact.
I'm aware of the RFCs, as is Shiva. An RFC is a request for comments, and it doesn't necessarily represent a system that was actually built and used. Again, though, the point is that the first email system depends on one's definition. Did it have to be reduced to practice? Did it have to have features a, b, or c? There are no correct answers here. It's a matter of opinion, not fact.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The article states that SNDMSG and CPYNET protocols predated the demonstration and used a mailbox. In other words it was asynchronous communication. (As opposed to instant messaging, synchronous communication.)
The demonstration added networking. Instead of the users being on one computer, they were on multiple computers connected through ARPANET. But still communicating asynchronously through a mailbox.
Your example disproves your claim. But even if it didn't you'd still be wrong. The RFC's I listed show that. Your example then be the equivalent of claiming "The car I invented in 1940 was the first, because the Model T doesn't meet my personal definition mandating modern gas and brake pedals." Ignoring all the models between the Model T and 1940 that *DID* have gas and brake pedals.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's a matter of opinion, not fact.
Don't know about anyone else, but I'm going to side with the opinions and definitions of actual internet pioneers and respected computer historians, as opposed to someone with delusions of grandeur who is just looking for a bit of fame or some anonymous commentator on a website.
It's the same with word definitions, I tend to go with the definitions that are universally accepted so everyone else understands what I am saying, as opposed making up my own definitions in order to win an argument.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
enjoy!
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
LOL! K Brah. Move along.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Who cares how he personally chooses to define the term? He's not telling the truth the way it's actually defined, and that's what Mike was addressing - and all that really matters.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
The dozen-plus posts where Mike attacks Shiva personally
Once again, can you point to an example of Mike attacking Ayyadurai personally? Mike has countered Ayyadurai's claims, but I didn't see any personal attacks in what I read.
So is it true that Shiva actually lied, as Mike claims?
I don't recall Mike actually claiming Ayyadurai lied, per se, but that he has exaggerated his claims that a copyright on a particular piece of software equates to inventing a entire concept like email. Especially when it's pointed out that most of email's features were implemented and standardized prior to Ayyadurai's copyright.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Ayyadurai personally claims to have personally invented email. How do you counter such a lie without mentioning a) that it's a lie, and b) the person telling it, and c) the person it's about?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
If you don't remember Mike saying Shiva lied, you should read the complaint and go back over Mike's posts.
I just did, and you are correct, Mike did point out some of Ayyadurai's falsehoods directly. I'm still not sure how you equate that to a personal attack though. It's attacking the falsehoods, not the person.
If you want see a real good dismantling of Ayyadurai's claims, you should read this: Did V.A. Shiva Ayyadurai Invent Email?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
https://www.techdirt.com/articles/20140901/07280928386/huffpo-publishes-bizarre-misleading-f actually-incorrect-multi-part-series-pretending-guy-invented-email-even-though-he-didnt.shtml
"(it is entirely believable that Ayyadurai, as a bright kid, independently came up with the same ideas, but he was hardly the first)"
I don't see how someone would call the man bright if he took it personally. I believe YOU are taking it personally. At least you are providing good entertainment ;-)
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Unless he was telling the truth about Shiva knowingly misrepresenting information to get credit for something he didn't do. In which case, that's the textbook definition of a lie, and while it may sting for the liar to be called out for lying, it's not wrong.
I've noticed nobody's trying to prove he didn't lie, you're all just whining about Mike being mean because he called a liar a liar. No defence has come where you're saying "well, we can see here that according to these facts they guy did invent email". You're all just saying "he's mean because he addressed Shiva's lies!".
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
>
> it seems clear that the email we know today didn't
> come from Shiva's work
>
> I don't see how he's lied.
An initial misstatement may not be a lie. Continued repeating of untrue information, in the face of facts to the contrary, with a purpose to gain fame and/or fortune, becomes a willful lie.
Example
When I first said the earth is flat, it was not a lie, because I was misinformed.
Now that I have all the facts, I will continue to assert that the earth is flat. Am I telling a lie? Oh, and I can be hired to assist anyone promoting the flat earth view.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Do you provide pictures like these guys? If so, I may consider switching vendors.
https://flatearthscienceandbible.wordpress.com/2016/02/08/top-ten-undeniable-flat-earth-proo fs/
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Tomlinson himself claims to be one of the firsts: "Did you send the first network email? As far as I know, yes." https://openmap.bbn.com/~tomlinso/ray/firstemailframe.html
Maybe I think Samuel Morse sent the first network email. Am I lying? No. Is Tomlinson lying? No. We just have a different definition.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
If you know of an earlier example, let us know. Just like everyone is pointing out earlier examples of what Ayyadurai falsely claims to have invented. Unlike Ayyadurai, we won't sue.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Nah, I read the whole thing and the Does are people related to Techdirt and Floor64. There aren't any readers mentioned. Still, I wouldn't be worried even if I was one of de Does. Easy win for Mike. And there's the jurisdiction issue. They'd have to bring it many thousand miles away and it would be even easier to toss the lawsuit here AND counter sue for damages.
"Maybe I think Samuel Morse sent the first network email. Am I lying? No. Is Tomlinson lying? No. We just have a different definition."
E-mail as it is today? If you think it was Morse you were entitled to do so and you would be wrong but to affirm you are right and then sue others who prove you wrong for defamation? Well, lies. And while Tomlinson may have sent the first e-mail with the configurations we use nowadays he is considered the inventor mainly because he gave the final contributions and kickstarted them. And newsflash: there's consensus over the tech community he was a key player in the whole process of inventing e-mail. Mr Shiva? Not so much. I have yet to see people using his invention.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Then just call it beint intellectually dishonest if it makes ya feel better little fellah.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
Taking shots are someone - who has undoubtedly been advised by his lawyer to not comment on the matter and thus can't shoot back - certainly indicates that your name is well-earned.
[ link to this | view in chronology ]
Re: Re:
I don't believe Mike ever been too scared to argue that someone is wrong. Funny that he's starting now.
[ link to this | view in chronology ]
Re: Re: Re:
Barratry (common law), litigation for the purpose of harassment or profit. Legal action which is brought, regardless of its merits, solely to harass or subdue an adversary.
That sounds spot on. Or are you thinking of "misconduct by crew of a ship resulting in its damage?"
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Mike DOCUMENTED that Ayyadurai's claim was a lie over and over. With impeccable citations.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
So he "narrows" the definition until it fits his narrative?
That's a very unique way of calling something a lie.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
I'm guessing that you are not a lawyer.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
https://www.techdirt.com/articles/20170103/16424336399/confirmed-horrible-person-james-woods -continues-being-horrible-winning-awful-lawsuit-to-unmask-deceased-online-critic.shtml
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
i never thought about that
jesus christ. ojt president.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
T Minus 9 Days ...
[ link to this | view in chronology ]
incorrect analysis
[ link to this | view in chronology ]
Is this sorta like "legitimate rape"?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]