As someone who has taught defamation torts for thirty years, the Trump Administration has been a bonanza of such cases and controversies. I regularly criticized Donald Trump for his calls to change defamation laws. On the opposing side, figures like MSNBC’s Joe Scarborough raised equally poor understandings of defamation law in considering lawsuits against Trump. However, not surprisingly in our age of rage, there has been a slew of defamation claims raised from leading lawyers to universities to academics to police officers to the Dominion company to Sarah Palin to Jerry Falwell Jr. to Roy Moore to Joy Reid . . . well, you get the idea.
What is striking is that some of the most reckless figures or groups are often the first to raise such claims, including Trump himself. The Lincoln Project is the latest example. The group participated a disgraceful campaign of intimidation against lawyers and law firms that began soon after the election, including alleged efforts to dox or troll people with opposing views. This includes work that was previously discussed as potentially defamatory. It is now saying that it has a strong case against Rudy Giuliani who himself seems a perpetual defamation machine. The claim arose after Giuliani held a signature interview with unhinged and unsupported allegations, including that someone associated with The Lincoln Project helped orchestrate the recent riot on Capitol Hill. While the Project says that this is an open and shut case, there are serious impediments facing such a lawsuit and it is not, in my view, sure thing under controlling case law.
Former Trump adviser Steve Bannon interviewed Giuliani on his podcast War Room and was taken back when Giuliani leveled a sensational and entirely unsupported allegation in discussing the Senate trial:
“The defense is going to have to show that this thing was planned and a lot of the people involved in the planning, antifa and even some right-wing groups, were enemies of his. And they were doing it in order to hurt him. Including some right-wing groups that operate for the Lincoln Project or have been working with the Lincoln Project at various times.”
Bannon cut off Giuliani with “Hang on. Whoa, whoa, whoa, whoa—what are you saying ‘working for the Lincoln Project?’ Right-wing groups like who?”
Giuliani refused to name his source, saying “One of the people who organized is well known for having worked with the Lincoln Project in the past” and said that his unnamed individual “had the same motivation the antifa people had.”
When asked a third time to name the individual, Giuliani stated “I don’t know if I can reveal his name because we have that from anonymous sources, but he worked in the past for [Senator Mitt] Romney.”
Bannon correctly noted “This is why we’re getting blown up all the time. You can’t throw a charge out there like that and say, ‘Yeah, I’ve got a double-secret probation guy who I can’t mention but he worked for Romney and he worked for the Lincoln Project.’”
It was clearly reckless but was it defamatory?
Lincoln Project itself did not help its case by publicly celebrating its own defamation. Lincoln Project co-founder Steve Schmidt said Saturday that he was “thrilled” by Giuliani’s interview and the defamation. The group joked on Twitter that it wanted “trial by combat.”
That does not exactly seem like an aggrieved and harmed plaintiff.
The group’s attorney Matthew Sanderson later sent a letter claiming “a textbook case of defamation” by “accus[ing] The Lincoln Project of an infamous and criminal act it had nothing to do with, as you very well knew. You lied.” Sanderson gave Giuliani until Feb. 3 to “retract your statement fully and to apologize to The Lincoln Project. Refuse at your peril.”
Defamation law is heavily curtailed by the First Amendment and often the most despicable defendants are protected in the use of vile and hurtful language. That was the case in 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.”
It is not clear who will be suing as individuals or the group or both. However, the standard is quite high. In New York Times v. Sullivan, the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech. 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, a litigant must show either actual knowledge of its falsity or a reckless disregard of the truth.
This is a matter of great public concern and political debate including equally outrageous claims made by the other side accusing individual members of conducting surveillance for rioters. Courts are understandably hesitant to delve into the super-hearted environment of political speech absent the clearest and rawest forms of defamation.
Of course, simply saying that something is your “opinion” does not automatically shield you from defamation actions if you are asserting facts rather than opinion. However, courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece, 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.
Giuliani might rely on this passage:
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.
A court would have to explore that line between stating fact and opinion. Giuliani did seem to be stating a fact as to his source and what the source would recounted in the allegation. He was quite specific that the person worked in the past with Senator Romney. Indeed, he indicated that he had “sources” to back up the allegation. But what was the allegation?
Truth is always a defense in defamation but Giuliani has a report of making allegations without sufficient support.
It appears to come down to one line: “One of the people who organized is well known for having worked with the Lincoln Project in the past.” Giuliani would need to show that there was one person who helped “organized” the riot and “worked with the Lincoln Project in the past.” Those are generalized terms. What constitutes “worked with” can have a wide meaning. If someone corresponded with the Lincoln Project or posted material in support of the group, would that constitute “working with” the Project? That does not seem like a particularly powerful foundation. In the recent Palin case, there was a direct allegation of the former governor encouraging an assassination effort. Likewise, in the settlements over the Sandmann coverage, there were false allegations that he was the aggressor.
Even if litigation could show that there was no such person or that Giuliani lacked a reasonable basis for the claim, there is also the question of how damaging such an alleged loose association would be for the Lincoln Project. Clearly, the Lincoln Project thought it was a joke and was “thrilled” by the interview. Courts have been leery of broad allegations of group libel and associational harm in defamation cases. 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.
At this stage, I would give Giuliani the edge in prevailing in the case (on appeal if not at trial) absent additional evidence or additional statements. It is not a frivolous claim to be sure but it is not nearly as conclusive as counsel suggested in his letter. Of course, such letters are meant to state the strongest case and I certainly do not fault the language or motive. However, this will be a challenge on these interstitial points in going from an allegation to a verdict to an appeal.
Source: Jonathan Turley