Below is my column in the Hill on the defamation lawsuit facing actor Alec Baldwin. Where Baldwin famously adopted the persona of Trump for Saturday Night Live, he will now likely adopt his actual legal defense to fend off the family of a Marine killed in Afghanistan. If you found it hard to tell the difference between the two personalities, it is going to get a lot worse in McCollum v. Baldwin.
Here is the column:
Alec Baldwin has never been known for restraint — just ask his lawyers. After the lethal shooting on the set of the movie “Rust,” Baldwin, 63, explained to reporters that his counsel strongly instructed him not to comment on the case, but then launched into a detailed discussion of it. Baldwin is known for his outbursts involving everyone from photographers to drivers to family members.
The latest Baldwin litigation involves the family of a U.S. Marine killed in a suicide bombing in Afghanistan. It combines Baldwin’s reputation for liberal politics and his impulsive temperament — and a demand for $25 million.
Here is the ultimate irony: In defense of this lawsuit, Baldwin is likely to make an argument strikingly similar to — wait for it — Donald Trump’s. Although Baldwin won an Emmy for playing Trump, his toughest performance may be yet to come in defending his own inflammatory rhetoric.
All of this began over a modest but kind gesture to the family of a slain soldier.
Baldwin gave $5,000 to Jiennah Crayton, the widow of Marine Lance Cpl. Rylee J. McCollum, to help her with their newborn daughter. McCollum was killed in the Aug. 26 suicide attack in Kabul at a processing point for refugees during the U.S. withdrawal from Afghanistan. Baldwin made the contribution through McCollum’s sister, Roice, and called the check a “tribute to a fallen soldier.”
That should have been the end of a nice story.
However, Roice later shared a photo on Instagram of herself at the Washington Monument, participating in the Jan. 6 protest over the 2020 presidential election. The photo did not show her rioting on Capitol Hill, and she insists she did not join in any wrongdoing. She says she merely exercised her right to protest the election, and that did not make her an Oath Keeper.
Indeed, a complaint she filed against Baldwin states: “During the rioting, she was stuck in place outside the Capitol Building next to multiple police officers for hours after the rioting began due to the fact that so many people were around her and the area had been locked down. … Later, a neighbor who was unhappy that Roice attended the demonstration turned her into the authorities.”
Roice was interviewed by the FBI and reportedly cleared of wrongdoing.
Baldwin, in signature style, was enraged; he seemed to believe that sending a modest contribution to the wife of a dead Marine gave him some say over the sister’s political speech. He wrote: “When I sent the $ for your late brother, out of real respect for his service to this country, I didn’t know you were a January 6th rioter.”
Roice responded correctly that “protesting is perfectly legal in the country and I’ve already had my sit down with the FBI. Thanks, have a nice day!”
Baldwin, however, took the issue public and seemed to taunt Roice that he would make her infamous: “I don’t think so. Your activities resulted in the unlawful destruction of government property, the death of a law enforcement officer, an assault on the certification of the presidential election. I reposted your photo. Good luck.”
Baldwin then reposted the photo and labeled Roice an “insurrectionist” with his 2.4 million Instagram followers.
Baldwin must have known what could happen next. He maintains a feverish political following on the left, due to his portrayal of Trump and his regular statements on politics. The posting unleashed some of his followers, who hounded the family and denounced them in the same fashion. That included, according to the complaint, statements like “Get raped and die … . Your brother got what he deserved.”
The complaint declares that “Baldwin’s comments were false, outrageous, defamatory, irresponsible, vindictive and caused – and continue to cause — plaintiffs severe emotional distress. Instead of being able to focus on grieving LCPL McCollum’s death and raising his newborn daughter, plaintiffs and their family are now fearful for their lives.”
The defamation case will raise interesting questions. First will be the family’s status. As discussed yesterday in a different case, public figures or “limited public figures” face a higher standard of proof in defamation cases. It could be claimed that Roice became a limited public figure subject to the higher standard of proof in New York Times v. Sullivan. That standard, written for public officials, was later extended to public figures. The Supreme Court has held that “public figure” status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A “limited-purpose public figure” status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
At some point in this public squabble, Roice became a public figure. Indeed, in her public comments on her fallen brother, she might have crossed the line before Baldwin came into her life. As a public figure or limited public figure, she would need to satisfy the actual malice standard. That is itself ironic in that Baldwin, the ultimate celebrity, will be able to hit Roice (who just a few years ago was simply a lifeguard in Wyoming) with the higher burden meant for figures like himself. Roice and her family will have to show “actual malice” — knowledge of the falsity of a statement or reckless disregard for whether it was true or false.
There does not seem to be any question that Roice was not a rioter. However, Baldwin is likely to argue that referring to Trump supporters as “insurrectionists” is an opinion rather than a literal reference to a criminal act. While I was critical of Trump’s speech when he was still giving it and condemned the attack at the Capitol, I have always maintained that this was a protest that turned into a riot. I still believe that, despite recent sedition conspiracy charges against a small number of the thousands protesting that day.
Baldwin can always argue “truth” as the classic defense to defamation. However, it is not literally true that Roice was a rioter or an insurrectionist in terms of her actions. So Baldwin may have to do his best Trump imitation to date — before an audience of one: a judge. Baldwin likely will have to argue that he is not responsible for his followers’ actions and that he was merely expressing his own political views. Moreover, he will argue that his use of inflammatory rhetoric is constitutionally protected. The reference to Roice being a “rioter” and an “insurrectionist,” he may argue, referred to her support for a movement that sought to overturn the election and led, ultimately, to a riot.
He may be successful. His public attacks on the family may make him a horrible person — but the hyperbolic reference to “rioters” and “insurrectionists” is common today in both political and media statements. Those labels are used widely to refer to Trump supporters, painting them as sharing responsibility for the Capitol riot.
Baldwin is particularly known for reckless rhetoric, such as saying that Trump should be buried in a Nazi cemetery with a swastika on his grave. For his part, Trump seems to relish Baldwin’s role in the fatal shooting of his director of photography, Halyna Hutchins. For some time, the two have seemed to be morphing in their unpredictable, often insulting tirades; now, they could adopt a shared defense.
The Washington Post once ran a column about the difficulty of knowing if controversial lines were uttered by Trump or by Baldwin portraying Trump. One of Baldwin’s last lines as Trump on SNL may now prove eerily prophetic: “This isn’t goodbye, America. I’m just going to say, ‘See you in court.'”