New York Judge Dismisses Defamation Lawsuit Against Donald Trump

495px-Donald_Trump_by_Gage_SkidmoreTwitter LogoNew York State Supreme Court Judge Barbara Jaffe has dismissed the defamation case against against President-elect Donald Trump brought by political strategist and TV pundit Cheryl Jacobus. Trump slammed Jacobus during the campaign and said that she “begged him for a job” at one time. Jaffe, however, held that such tweets are manifestly opinion and not facts for the purposes of defamation law. It is perhaps fitting that the first major ruling related to Trump would be over the character of tweets. If upheld, this could be a major new rule. As if on cue, Trump make more headlines today in the wake of the decision on Twitter with a tweet attacking the intelligence agencies saying “Intelligence agencies should never have allowed this fake news to “leak” into the public. One last shot at me.Are we living in Nazi Germany?” That is clearly opinion and hyperbole but the scope of Jaffe’s decision certainly adds a layer of protection not just for Trump but other regular tweeters.

Jacobus insists that the Trump’s campaign invited her to interview for the job of campaign communications director in May 2015. She insists that she withdrew over her disagreement with Trump’s then-campaign manager, Corey Lewandowski. She later went on television in 2016 where she criticized the decision of Trump to skip one of the debates and said that the decision was motivated by her view of Trump as a “bad debater” who “comes off like a third grader faking his way through an oral report on current affairs.” Trump fired back on Twitter and said that Jacobus “begged us for a job. We said no and she went hostile. A real dummy!” Another tweet said Jacobus “begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!”

Jacobus sued for $4 million and disparaged her professional standing. This included tweets that said “turned her down twice and she went hostile. Major loser, zero credibility.”

Jaffe however viewed the tweets as unbelievable as factual statements. While taking some implied jabs at the President-elect for his tweets, she ruled ultimately in deference to the First Amendment. She notes “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.” The key problem was the use of terms like “beg” which can be highly subjective:

“Trump’s characterization of plaintiff as having ‘begged’ for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff’s 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.”

Jaffe calls Trump’s tweets “simplistic” and basically juvenile, which she viewed as working to his advantage: “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.”

Jaffe basically rules that none of the tweets could be taken seriously and refers to “Trump’s schoolyard type squabble.” She does acknowledges that should could create a troubling defense:

“the context of a national presidential primary and a candidate’s strategic and almost exclusive use of Twitter to advance his views arguably distinguish this case from those where heated rhetoric, with or without the use of social media, was held to constitute communications that cannot be taken seriously…. These circumstances raise some concern that some may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in a more formal and presumably actionable manner….”

Jaffe also acknowledged that “some of the statements, viewed in isolation, could be found to convey facts” but had greater fear about holding such tweets subject to liability. Accordingly, she held:

“Thus, although the intemperate tweets are clearly intended to belittle and demean plaintiff, any reasonable reading of them makes it ‘impossible to conclude that [what defendants said or implied]…could subject…[plaintiff] to contempt or aversion, induce any unsavory opinion of [her] or reflect adversely upon [her] work,’ or otherwise damage her reputation as a partisan political consultant and commentator…. Indeed, to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll of the national consciousness like water off a duck’s back.”

There is a legitimate fear for the first amendment in such cases. Both of the principal parties are public figures under the actual malice standard — requiring a high showing for defamation. In cases like New York Times v. Sullivan, the Supreme Court emphasized the need to protect the first amendment from the curtailment or chilling effect of tort liability. This decision is certainly consistent with that view. There remains however some questions as to how far this ruling would go. Jacobus insists that she never sought the job but that the campaign sought her. However, Trump can claim that, regardless of who initiated the discussion, she ultimately expressed an interest in the job and later became hostile. Terms like “dummy” are manifestly opinion.

Nevertheless, as Jaffe acknowledges, the opinion does rely on the character of Twitter itself to question the factual content of such brief communications. That may make appellate judges a bit uncomfortable but it would not necessarily alter the decision on the merits.

Here is the opinion: Trump decision

85 thoughts on “New York Judge Dismisses Defamation Lawsuit Against Donald Trump

  1. I think – and hope – that the ruling rested on the multiple definitions and understandings of the word “beg,” not on the fact that what he said was in a tweet versus any other medium. It would be a very black day if tweets were confirmed to be merely “manifestly opinion.” Would that also cover slander per se claims – “I think she has AIDS” type of tweets? How awful a standard that would be.

  2. Intelligent decision. People call people names on Twitter all the time.There would have been a flood of lawsuits. OTOH, it is possible to attach documents to a tweet, and pictures, and “facts” could be promulgated in that fashion. So I think this is not the end of it all.

    Squeeky Fromm
    Girl Reporter

  3. I think that President Trump will be the most directly connected to the people via Twitter, more accessible than any other President. But I think Twitter will continue to be problematic for him, as his extemporaneous comments do not seem to go through a vetting process. There is no filter, so we get the good, the bad, and the ugly, but at least it’s authentic and not driven by polls. Sometimes, I think we are going to wish it was.

    • Explosive technological developments practically guarantee every new President will almost automatically become the most “directly connected to the people” President. This will continue for the foreseeable future, maybe forever.

      • I have my doubts. Constant Connectivity was booming when Obama took office, and yet the AP has dubbed him the least transparent President in history. He didn’t seem to reach out to the public the way Trump can’t seem to stop himself from doing.

        Of course, transparency and connectedness are two very different things.

        I wonder if the Establishment will fight back like The Empire Strikes Back.

    • Well said. I think I could stand the good, bad and ugly, though I agree we might think twice about that down the road. What has me concerned, however, is the amazingly tight net the powers that be seem to be casting over Trump so that he may end up with little more than his tweets being his own decisions in this administration.

  4. I’m sorry, the judge is talking out of both sides of her mouth. “Thus, although the intemperate tweets are clearly intended to belittle and demean plaintiff…” So if the tweets were clearly intended to belittle, how can you then say oh it was just opinion.

    Sorry, IMHO, judge had it wrong on this one.

  5. Jim Sciutto ‏@jimsciutto 2h2 hours ago

    CNN’s @Acosta reports Trump spokesman @seanspicer told him he’ll be kicked out of future press confs if he presses hard for ques again
    397 replies 2,120 retweets 1,323 likes

            • Goldie,
              I can understand this could be a legitimate concern for that segment of society used to a utilitarian democracy rather than a constitutional republic form of government.

              Our current President stated, “Elections have consequences and I won.” If the rule of law and separation of powers were respected by the political class AND expected by the people, then that statement should be of little concern. The legislative branch would create the laws expected by the people and the Executive branch would faithfully execute those laws. All of this working in harmony to continue moving towards becoming “a more perfect Union”. That’s the design of our form of government but that’s not how our progressive political class sees its purpose and that’s not what their constituents have learned to respect.

              The real problem for progressives is they’ve gutted a system specifically designed to defend the citizens from an abusive government and they rightly fear losing control of the beast they created. It’s like the Alfa Class submarine in “The Hunt for Red October” removing all the safeties on their last torpedo and it comes back to blow them up.

              So I just shake my head when I’m asked if these folks should be rounded up and put into camps, I would ask them why they’ve transformed a government into something where they should even need to ask the question?

  6. Yay! It’s a start of eradicating corporate-sanctioned fake newz. first CNN, next maybe MSDNC, NBC, ABC, Fox and the rest of those mindless partisans.

      • Please. Rachel Maddow’s question was asinine as has been her “coverage” during the primaries where she consistently demeaned Bernie folk and those who questioned the TPP. Woman is hyper bright – I have her book but somewhere along the way she chose $$ and power.

        No camps for journalists – if they wanna go to camp they have to pay for it on their own. And that might a concern given their increasing irrelevancy to anyone whose been paying attention: Repubs Indies, Progressives.

        Like that old saying if a tree falls in a forest and no one is there does it still make a sound?

        NO sane person cares what the MSM sez.

  7. WIRED Verified account
    ‏@WIRED

    “Trump appears to have a new goal: to prime the public to believe he is the only reliable source.” Dangerous…….

  8. Read Glenn Greewald if you want to see what is really going on w/ this intelligence community coup d’etat. Sharyll Atkisson is also another legit journalist. The MSM has formed a circular firing squad in trying to slay their great white whale. When there’s a REAL scandal all the MSM’s credibility, what little they have, will be gone. That’s scary.

    • Speaking of Greenwald, here is an excellent article:

      https://theintercept.com/2017/01/11/the-deep-state-goes-to-war-with-president-elect-using-unverified-claims-as-dems-cheer/

      ” The serious dangers posed by a Trump presidency are numerous and manifest. There are a wide array of legitimate and effective tactics for combatting those threats: from bipartisan congressional coalitions and constitutional legal challenges to citizen uprisings and sustained and aggressive civil disobedience. All of those strategies have periodically proven themselves effective in times of political crisis or authoritarian overreach.

      But cheering for the CIA and its shadowy allies to unilaterally subvert the U.S. election and impose its own policy dictates on the elected president is both warped and self-destructive. Empowering the very entities that have produced the most shameful atrocities and systemic deceit over the last six decades is desperation of the worst kind. Demanding that evidence-free, anonymous assertions be instantly venerated as Truth — despite emanating from the very precincts designed to propagandize and lie — is an assault on journalism, democracy, and basic human rationality.”

    • Good post.

      Nick is right. Atkisson and Greenwald are 2 of the last great journalists. They dont care about political parties.

      Greenwald when he stays away from SJW stuff at least.

      Something has gone very wrong with our press the last 50 years.

  9. Charles P. Pierce ‏@CharlesPPierce 2h2 hours ago

    “Nothing he said at that PC today speaks as loudly as the fact that he brought his own cheering section. That’s scary and weird.”

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