In a highly disturbing moment last night, President Donald Trump launched into an attack on former FBI lawyer Lisa Page and former FBI Counterespionage Chief Peter Strozk with a shocking reference to a restraining order that Page allegedly had to take out on Strozk after their affair. President Trump has previously attacked the couple, even mocking them in a made-up, seemingly orgasmic conversation in bed. Those were highly inappropriate and unpresidential moments but this could be defamation, if untrue. [Some media sites like the Daily Beast are saying that the allegation is being denied as untrue] Even if it is not actionable, occupying the space somewhere between defamation and demagoguery is no place for a president. (Note Lisa Page just filed a lawsuit under the Privacy Act on the disclosure of her emails with Strozk).
Page recently went public to denounce these attacks which would be horrific for anyone. Yet, from a legal standpoint, this is different. The President said:
“So FBI lawyer Lisa Page was so in love she didn’t know what the hell was happening. Texted the head of counterintelligence Peter Strzok, likewise so in love he couldn’t see straight! This poor guy, did I hear he needed a restraining order after this whole thing to keep him away from Lisa? That’s what I heard. I don’t know if it’s true, the fake news will never report it, but it could be true . . .
“Now that’s what I heard, I don’t know,” he added. “I mean, who could believe a thing like that? No, I heard Peter Strzok needed a restraining order to keep him away from his once lover. Lisa, I hope you miss him. Lisa, he will never be the same.”
Falsely stating that someone required a restraining order against you would be considered defamation. Strzok is a public figure (or a limited public figure) at this time. Under the New York Times v. Sullivan (or actual malice) standard, public officials and public figures must shown a knowingly falsehood or reckless disregard for the truth. Truth remains the main defense to defamation.
Obviously, political speech is afforded greater leeway and there is an effort not to intrude on the first amendment. “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expressions[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” Ferlautov. Hamsher (1999) 74 Cal.App.4th 1394, 1401. Moreover, “[S]ome statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. ‘In these circumstances, it is for the jury to determine whether an ordinary reader would have understood the article as a factual assertion …’” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608
However, political speech is not a license for defamation and there is no ambiguity here.
If this accusation is true, it is not actionable though it would still be in my view deeply and chillingly inappropriate.
If it is false, the question is whether saying that he does not know if it is true is a real defense. This issue came up in the Seventh Circuit case of Wilkow v. Forbes where Judge Frank Easterbrook wrote:
“In Illinois, a ‘statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.’”
Here President Trump is saying that he “heard” that there was a restaining order but did not know whether it is true. That puts the statement (like so many) right on the line.
If there was a restraining order, there is no liable legal course of action for Strzok on the speech. Once again, however, that attack should never have occurred. I cannot imagine the relevancy of this information even if true, but to make such a statement without knowing the truth only magnifies the deep concerns over such attacks by a president.