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. Loved it when Trump called out CNN as “fake” news…CNN is on par with Pravda West and the National Enquirer…good ol’ fashion yellow journalism.

  2. I believe you missed it badly here, Mr. Turley. If the plaintiff made any effort to get a job from Trump, it is a matter of opinion whether those efforts rose to the level of “begging”. But whether she applied for a job, or was turned down twice, are allegations of fact. If untrue and damaging, and known to be untrue (to the applicable standard under Sullivan v. NYTimes), it was defamation.

    Further, the judge should not have let him off on the grounds (this based on your summary only, so I could be mischaracterizing her judgement) that no reasonable person could think Trump ever says another other than his own opinions.

    Finally, I think you were remiss in not mentioning that a “supreme court” in New York is not the supreme in the ordinary meaning of that word. Small point, but most of us don’t know that that is a trial court, not a “supreme” court like the Supreme Court of the United States.

  3. Saw NYTimes “The F.B.I. chief James Comey is facing an internal investigation into his pre-election actions on the Clinton email case”

    Does anyone else wonder why we never see the name Loretta Lynch tied to any of this? She was Comey’s boss – did she not have anything to say about it? They are protecting her and throwing Comey under the bus.

    • Exactly. Doesn’t matter who takes credit for what as long as people feel the positive effects/results. Trump will produce actual results where Obama has very little to show for 8 years.

        • Paul – Saw an excerpt from Steve Kroft / 60 Minutes interview with Obama that will air this Sunday.

          Obama says at one point… “I’m proud of the fact that with two weeks to go, we’re part of the first administration in modern history that hasn’t had a major scandal in the White House.”

          And of course Steve Kroft let that pass without followup.

  4. Let’s see, took credit for auto plants expanding and being built in the US-stuff that has absolutely nothing to do with DDT-has to do with union and Obama, been in the works for over a year, inflated Carrier jobs not going to Mexico by 300%, lied about not trying to do business with Russia, etc. etc. etc. It looks like that the concept of saying anything, lying through his teeth, smearing anyone who spoke the truth, etc just to get in and then becoming sane was a pipe dream. DDT is a tragedy and seems to want to continue to be one. This is all on the dupes that believed this clown.

    • That’s the other thing….why is having good relations with Russia and a good relationship with Putin a bad thing? What did Marco Rubio think it would accomplish by forcing Rex Tillerson to call Putin a “war criminal”?

  5. Simply not looking forward to news conferences…..for the next four years.!

    However, if there is an abundance of jobs, I will forget about the negatives.

    • Just saw Amazon commits to hiring and training 25,000 veterans over the next 5 years.

      Trump is going to be good for the country overall. Bad for the press, bad for big pharma, bad for politicized intel agencies — which is all okay in my book. He said his administration would be 3 words: Jobs, Jobs, Jobs and he’s delivering before he even takes office.

        • The jobs are mainly in the fulfillment centers and the pay is lousy. Those jobs are certainly not replacements for the union jobs that have been lost.

          • At least they are full-time jobs with benefits unlike the part-time jobs with no benefits that Obama has been counting under his employment/jobs numbers. So it’s a start.

          • Goldie – I was unaware that Bezos actually had unions in his plants. Mostly he hires contractors for 6 mos. at a time so he doesn’t have to pay benefits.

      • You actually think Bezos is adding jobs because of Trump. He can’t stand him. Bezos will be adding these shipping jobs for along time as brick and mortar stores close and lay off workers. Macy’s is laying off 10,000.

  6. Btw did anyone else love it when Trump told the Drug Companies that they are not going to get away with screwing the American people any longer?

  7. I loved watching Trump crush the press yesterday. I hope he renders the White House press useless and bypasses them mostly. Our media is completely corrupt.

      • But it’s so fun to watch the press get all like hey we’re CNN and you can’t treat us like that! And Trump says you’re fake news sit down and shut up. I love it. Get ready to rumble.

  8. I think that when you are President that you should not belittle other people. But, the was a bunch of trash which occurred a while back and the plaintiff’s case should have been dismissed for lack of “standing to sue”. If you are in the twit arena or if you are in the political arena then you should not have standing to sue for defamation. Now, if Trump had lied and said that she had sex with a dog then that would be another matter.

    • I’m not going to click. You ought to provide a brief summary.

      Not that I’ll pay much attention. Its Faux Neuz afterall.

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