Anthony Scaramucci Threatens Tufts With Defamation Lawsuit

scaramucci
A speech by Anthony Scaramucci at his alma mater, Tufts University, has been delayed after the former Trump White House spokesman threatened the student newspaper with a defamation lawsuit.  I previously wrote a column on Scaramucci and his controversial outbursts. This threat against the students at Tufts is legally meritless and undermines whatever credibility Scaramucci retained following his disastrously sort stint at the White House.

imagesScaramucci earned an undergraduate degree in economics at Tufts University. He was scheduled to speak Monday at the school’s Fletcher School of Law and Diplomacy.

Graduate student Camilo Caballero, 26, wrote a piece in the Tufts Daily criticizing Scaramucci’s position on a board for the school. He referred to Scaramucci as a “man who makes his Twitter accessible to friends interested in giving comfort to Holocaust deniers” and stating that Scaramucci “sold his soul in contradiction to his own purported beliefs for a seat in the White House.”  He also described Scaramucci as an “unethical opportunist” who “exuded the highest degree of disreputability” and “cares about gaining attention and nothing more.”

Scaramucci publicly declared that “Nobody is going to call my ethics into question without a fight. An apology will suffice.”  However, anyone can call your ethics into question as a public figure.  It is part of the public discourse and debate.  Moreover, before expecting the apology, he might want to come up with a plausible defamation claim.  Ironically, he could have benefitted from a call to his former boss.

160px-Official_Portrait_of_President_Donald_Trump_(cropped)As we discussed in January,  Trump was sued by political strategist and TV pundit Cheryl Jacobus after Trump slammed her during the campaign.  She triggered the ire of Trump by going on television to criticize 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 insisted that she was asked to apply and withdrew over her disagreement with Trump’s then-campaign manager, Corey Lewandowski. The court ruled that such tweets are manifestly opinion and not facts for the purposes of defamation law.

 

“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.”

Trump’s lawyers cited Jacobus decision in another lawsuit brought against him by Summer Zervos, a former contestant on Trump’s reality television show “The Apprentice.” She has accused Trump of sexual assault and harassment as well as calling all of the women accusing him “liars.”  Trump denied the allegations, calling them “pure fiction” and labeling the women “horrible, horrible liars.”

As in Jacobus, Trump’s lawyers insist that “All of the Statements occurred on political forums — a campaign website, on Mr. Trump’s Twitter account, in a presidential debate, and at campaign rallies — where the listeners expect to hear public debate, taken as political opinion rather than a defamatory statement.”

The team is also arguing that a defamation finding would curtail Trump’s free speech rights under the First Amendment.  The arguments are meant to give the court pause about intervening in the super-charged forum of politics: “This is a politically-driven action, brought against a sitting President for exercising his First Amendment right to speak on political and public matters concerning, among other things, his own qualifications for President, the media’s role in the election process, and the tactics of his opponent, Hillary Clinton.”

Now back to Scaramucci. His lawyer is Samuel Lieberman of Sadis & Goldberg, who wrote a letter threatening the students with litigation over their comments.  Strangely, Lieberman appears to be a securities lawyer.  The letter (PDF) by Lieberman warns the students that they are “ready to take legal action” if the newspaper did not comply with their demands. However, the listed statements are clearly protected statements of opinion rather than facts.

If anything, the statements about him are less specific than those made against Trump.  Ironically, if the comments in the Tufts Daily were treated as defamation, Trump would be toast in the pending litigation over his own comments. Eleven women have alleged such misconduct by Trump. Trump called the women “horrible, horrible liars.”

Nevertheless, courts routinely give ample room at the elbows for political speech and opinion pieces.  This does not even raise the higher standard that a public figure like Scaramucci must meet under New York Times v. Sullivan. Public officials and public figures are placed under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. This constitutional-based standard is designed to protect free speech when directed against powerful politicians and celebrities.

The public figure standard was established in Curtis Publishing v. Butts (1967), another case that casts considerable doubt over Scaramucci’s claims. The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:

[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

Finally, the fact that the Tufts Daily publication was an obvious opinion piece undermines Scaramucci’s claim.  The case is analogous to the challenge in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing opinion piece that stated in part:

[t]he proposal to name Bertell Ollman, Professor at New York University, as department head has generated wrong-headed debate. Politicians who jumped in to oppose Ollman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prince Valiants seem arrayed against McCarythite [sic] know-nothings . . . But neither side approaches the crucial question: not Ollman’s beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls ‘the revolution.’ Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing.”

The column goes on to take apart Ollman’s past writings, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’”

Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

For all of these reasons, Scaramucci would be hard pressed to maintain an action against the Tufts student or newspaper.  The student was “ventilating” his view of one of the most controversial figures associated with the Trump Administration.  A ruling of defamation would undermine not simply common law torts governing defamation but constitutional law governing free speech.

Ironically, it was Scaramucci who claims a type of Italian cultural norm in berating others (a claim I disputed at the time).  He shows none of that thick skin in threatening students of his alma mater.

Of course, if none of that works as a defense in this case, there is always the question of Scaramucci’s status as a living being.  While many argued that he was politically dead as Delinger, his other alma mater, Harvard, actually listed him as deceased in the alumni magazine.  It is well established that you cannot defame the dead.

 

47 thoughts on “Anthony Scaramucci Threatens Tufts With Defamation Lawsuit

  1. Muccis do not scare easily. I lived there for a time. They are tough. Those a holes from another island near by who think they can scare them are useless and cannot fish or tye knots.

  2. Speaking of lawsuits…ShareBlue posted a report on an upcoming trial for money laundering and conspiracy.
    The site speculates on who the defendant’s lawyers are talking to and the implications for the Mueller investigation.

  3. Anthony Scaramucci Threatens Tufts With Defamation Lawsuit

    How can Anthony Scaramucci give a speech with his foot stuck in his mouth?

  4. Using a rhetorical device, Scaramucci tried to make it seem that Stephen Colbert agreed that he was a straight shooter. Colbert told his audience, I just met Scaramucci. Then, he said to Scaramucci, “Don’t use me as a character witness”. The nation deserves more Colbert’s.

    • Linda – Colbert — as well as Oliver & Maher — are owned by HBO which is owned by TimeWarner. Noah, Meyers, Fallon owned by NBC which is owned by Comcast. As corporate tools they do not have free speech and must push the Liberal agenda – remember how Fallon was beaten up for “humanizing” Trump.

      The best comedian journalists / commentators are independents Jimmy Dore and Lee Camp IMO

        • I give credit where it’s due. Luke Rosiak, Daily Caller reporter has done excellent stories on DWS and Dim corruption related to Awan bros. Lame stream media has not.

          I suppose you get your newz from Corrupt New Network and or MSDNC

          • It is da CNBC today. Watchin da biggest corporate tax give away in history courtesy T rump. DWS is a scamp but small potatoes for sure.

            • DWS is more than a “scamp” – abusing 5 mil tax payer $ AND even worse — giving Pakistani nationals access to House computer data

              re: tax plan — we need independents – srew the R & D paradigm

      • Reed Hastings of Netflix is partnered in a school chain. Let me guess where that is headed….

        The program, Wisdom of the Crowd, had an awkward reference to Melinda Gates on Sunday. IMO, the actors stumbled over the dialog describing Melinda as “accomplished” and, the saver of “thousands of lives”.
        Odd thing is the preceding Sunday, the local city newspaper had a column by an independent writer calling Melinda “accomplished”, “brilliant”, and the saver of “millions of lives”.

        Unrelated, PR has greater credibility when its vocabulary is expanded.

      • Ah, you seem to have your finger on the pulse of this wide-ranging and nefarious collection of ne’er-do-wells who seek to dismantle the progress that our yokel-elected president seeks on the behalf of his and those like him. It smacks of conspiracy; an attempt to make ‘Merica smart again.

        This is to autumn know better

  5. Nobody looks on the bright side anymore. Camilo Caballero did not organize nor stage an Antifa nor Black Bloc protest against Scaramucci’s speech. Instead, his speech was delayed because of Scaramucci’s threat to sue the student newspaper for defamation. Believe it or not, but that is progress. Don’t look a gift horse in the mouth.

  6. I believe a Tufts representative referenced the Curtis Publishing decision in a brief interview on one of the Boston nightly news shows yesterday evening. The news showed Caballero’s photogenic head shot, because that’s uber-relevant, but sadly, neglected to mention the Holocaust deniers reportedly infesting Mucci’s Twitter feed. Quelle horreur! It was hard to determine how important this story was, as it was squeezed in between 10 minutes of discussion of Prince Harry’s engagement and 5 minutes on Trump’s Pocahontas faux pas.

  7. Just because Harvard declares you dead doesn’t mean diddly squat. You have to be pronounced by a doctor at the scene or in a hospital. I am sure Harvard is no longer on his donor list.

    I think he was a public figure, but he no longer is a public figure, therefore the public figure rules don’t count. He should go for it and scare the hell out of them anyway. The writer is 26, and adult, and was trying to damage his reputation. Summons, complaint and 400 pages of discovery served all at the same time? That will keep them busy.

  8. When the Golfer is out of office I’m sure his lawsuit-machine will kick back into gear; and Baby Trump here is simply following the model of his adopted dad.

    • If “unethical” and “criminal” were synonyms, the U.S. prison population would possibly expand exponentially from its current stratospheric record among westernized nations.

    • The fact that the “unethical opportunist” appeared right after a link to an article citing specific examples of Scaramucci’s conduct which could reasonably be characterized as the conduct of an unethical opportunist significantly weakens that argument as it reflects an opinion based on disclosed facts. The reader is free to determine whether he or she agrees that the cited conduct is that of an unethical opportunist. In the Tronfeld case there was no such disclosure.

      • I don’t disagree that there were factual differences that made the Tronfeld case more appealing to a conservative Supreme Court. However as I explained above, I wouldn’t dismiss any potential defamation claim out-of-hand merely because of the language of the four corners of the editorial when it could be read as to impute some level of criminality or more likely, relating to impugnment of the business of the subject. There does appear to be some measure of malice behind the fiery language of the piece. I’d like to actually see what Mucci has in mind for the pleadings before making judgments as to their efficacy. That was my point.

    • Curious. Wikipedia defines barratry as the action of someone who is “overly officious in instigating or encouraging prosecution of groundless litigation, or who brings repeated or persistent acts of litigation for the purposes of profit or harassment.”

      The charge would seem to require a pattern of groundless litigation. Are there any previous instances of Scaramucci’s barratry? There are prior examples of Trump’s SLAPP use. One presumes that evidence of Trump’s barratry would be inadmissible against Scaramucci. Nonetheless, is barratry contagious?

      • I need more information please. I searched both Lexis and Westlaw for a licensed attorney named “Wikipedia.” It appears that this “Wikipedia” character either never had a bar card or has been disbarred. I would hesitate to accept legal advice from this scoundrel in the future.

        This is to “late but curious”

        • Marky Mark Mark – there are many of us on here who would hesitate to take legal advice of any type from you even if you did have a current bar card. Why didn’t you use Black’s Law Dictionary for a definition of barratry?

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