I previously criticized some Trump lawyers like Rudy Giuliani for making unsupported claims in press conferences about electoral fraud and explored how he and others could be sued for defamation by companies like Dominion (which later did file such actions). After Trump campaign and Republican Party counsel filed an array of lawsuits challenging electoral results in 2020, a long list of legal experts called for disbarments and sanctions for filing frivolous actions. Some of those complaints are still pending. However, these same lawyers are largely silent in the face of meritless actions from the left. There was no outcry or calls for sanctions, let alone disbarments.
The lengthy complaint is long on political rhetoric and short on legal support. It recounts every use of these terms by Trump as well as violence against Asian individuals. These attacks are horrific and many reasonable view the use of these terms as fueling such anger.
However, terms like the “Chinese virus” have been widely used by various experts and commentators, including in scientific journals. Indeed, two Chinese experts referred to this as the “Wuhan virus” until they were pressured to take down their column.
While it is widely viewed as racially insensitive and inflammatory, the use is also heavily imbued with political meaning. Many, including members of Congress continue to use this term because of its origins. Moreover, many object that China has lied about the origins of the virus and arrested scientists who tried to tell the world about its dangers. It is political speech. (I have not used the term and instead to “COVID-19” OR “coronavirus” but it is chilling to see a public university encouraging students to stop others from referring to the “Chinese” or “Wuhan” virus.) This remains a point of political debate.
This is not about the merits of such labels but the legal basis to seek damages for their use. There is no legal basis in my view, though other may differ in that assessment.
The use of such labels is common in science and politics. People still refer to the “London variant” and “South Africa variant” of Covid. Other virus and diseases have been associated with areas where they originated like Zika, or Ebola. While the “Spanish flu” may not have started in Spain, it is still the common label for that epidemic. Indeed, it was the term used by many scientists in the early stages and even liberals. HBO’s “Real Time with Bill Maher noted correctly “Scientists, who are generally pretty liberal, have been naming diseases after the places they came from for a very long time.”
Chinese American Civil Rights Coalition is demanding $22.9 million, or $1 for every Asian American and Pacific Islander living in the United States. (The relief section states that “Plaintiff will donate the award (a & b) to establish a museum that will showcase the history of Asian American and Pacific Islanders communities and their contribution to the United States of America.”). The damage demand reflects the symbolic character of the complaint. However, lawyers are not supposed to use courts for political or symbolic statements.
Rule 11 states in part:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
While a claim could be raised under the first category, it is the second category that would seem relevant to this complaint. Three major problems stand out in the complaint.
Is this Defamation or Related Tortious Conduct?
First and foremost, the use of such terms is not in my view defamatory or a cognizable basis for a claim of intentional or negligent emotional distress. This is an opinion. While the complaint briefly notes that some might claim opinion, it insists:
Labeling a statement an opinion does not automatically make it an opinion or make it safe from the possibility of it being defamatory. If a reader or listener could reasonably understand that the communication as stating a fact that could be verified, the communication will not be considered an opinion, especially if it is sufficiently derogatory to hurt the subject’s reputation. Also, a communication that is presented in the form of an opinion may be considered defamatory if it implies that the opinion is based on defamatory facts that have not been disclosed.
The first outbreak of Covid was traced to Wuhan, China and there continue to be allegations that it may have escaped from a virology lab in that city. As a locational reference, there is support for the term. The best argument against the use of the term is that it is inflammatory, not that there is no connection to China or Wuhan. Trump could argue truth as a defense and fall back on opinion is needed in any litigation.
This is a classic example where opinion is protected under tort and constitutional law. It is also a statement from a public official or public figure.
Generally, parties must show (1) a defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault [or in some cases actual malice for public officials or figures]; (4) falsity of the defamatory statement; and (5) special damages or per se accountability (defamatory on its face). See e.g., Biro v. Conde Nast, 883 F. Supp. 2d 441, 446 (S.D.N.Y. 2012).
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth.
Trump has prevailed in past defamation cases. As we discussed previously, 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.”
Courts have repeatedly stressed that parties should not try to litigate such differences of opinion in courts. In Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984), Novak and Evans wrote a scathing opinion piece that labeled a professor a Marxist who used his classroom for revolutionary purposes. 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.’” Nevertheless, 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.
The association also raises collateral claims like emotional distress. However, those claims run directly counter to Supreme Court cases. One such case is Snyder v. Phelps, 562 U.S. 443 (2011). I previously wrote that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column. I was therefore gladdened by the Supreme Court ruling 8-1 in favor of the free speech in the case, even if it meant a victory for odious Westboro Church. Roberts held that the distasteful message cannot influence the message:
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts further noted that “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the first amendment:” Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment.” Ironically, the Lincoln Project could ultimately echo the position of the lone dissenter: Justice Alito. The dissent gave little credence to concerns over the constitutional rights raised in the case. He insisted that “[i]n order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”
Ironically, even the media recently has been seeking to broaden their own protections for what constitutes opinion in the characterization of actions as in the recent Veritas litigation.
This is not a close question in my view. There is no basis for this action based on the use of such common terms.
Group Libel
The complaint is filed on behalf of the organization but reads like a group libel action for every Asian American. They are seeking damages on behalf of every Asian American.
Such lawsuits are very difficult to maintain. In Neiman-Marcus v. Lait (1952), a New York federal district court addressed a defamation claim arising from the publication of the book “U.S.A. Confidential.” The author wrote that “some” models and “all” saleswomen at the Neiman-Marcus department store in Dallas were “call girls.” It also claimed that “most” of the salesmen in the men’s store were “faggots.” The store had nine models, 382 saleswomen and 25 salesmen. The court found the size of the group of women was too big to satisfy a group libel standard. However, the size of the group of salesmen was viewed as sufficiently small to go to trial. This was one of the very view successful cases and it was only partially successful (decades ago).
A claim of defamation of every Asian American (the majority of whom are not Chinese) would seem ripe for dismissal under these cases.
Injury
A third problem is the nexus of the injury from these statements to the injuries experienced by all Asian Americans. Putting aside the claim that this organization should be able to claim the right to argue for all Asian Americans, it suggests that not only were all of these millions of citizens injured in the same way but that the injury is directly tied to Trump. These terms are ubiquitous and used by an array of public figures and commentators.
There are other problems in this complaint, but it is difficult to see the complaint surviving a motion to dismiss on any of these grounds alone. The question is whether President Trump will seek Rule 11 sanctions. Much like the insurrection lawsuits by figures like Rep. Eric Swalwell and Rep. Maxine Waters, this lawsuit could afford Trump an opportunity not only to highlight allegedly frivolous legal claims made against him but to get a ruling on his use of these controversial terms. He might even seek to get a court opinion that the use of the term could be supported under a truth defense as the presumed origin of the virus. For Asian Americans, such a ruling would undermine their continuing campaign against the use of these terms.
In my view, this lawsuit was not just politically ill-advised but legally unfounded. Some would likely differ in that assessment based on different readings of this precedent. The issue is whether the cases are so clear that no reasonable lawyer would file such an action. That is a high standard and itself can be fraught with subjectivity. The Chinese American Civil Rights Coalition could claim that these standards are not cut and dry on what constitutes opinion so it had a good-faith basis for the filing. While I do not see any chance of prevailing in the lawsuit, some judges could conclude that, while weak, these claims satisfy the minimum showing necessary under Rule 11. A court could also avoid the sensitive political elements by dismissing the case while rejecting sanctions. Nevertheless, Trump was given the advantage and can file a good-faith motion under Rule 11.