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.

Scaramucci 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.

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.