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Donald Trump and libel litigation

Presidential candidate Donald Trump, speaking today: “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” Trump also said of Amazon, whose Jeff Bezos owns the Washington Post, a newspaper that just ran an editorial seeking to rally opposition to Trump: “If I become president, oh do they have problems. They’re going to have such problems.”

The President has no direct power to change libel law, which consists of state law constrained by constitutional law as laid out by the Supreme Court in New York Times v. Sullivan. A President could appoint Justices intent on overturning the press protections of Sullivan or promote a constitutional amendment to overturn it. Assuming one or the other eventually was made to happen, further changes in libel law would probably require action at the state level, short of some novel attempt to create a federal cause of action for defamation.

But although Trump is unlikely to obtain the exact set of changes he outlines, the outburst is psychologically revealing. Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O’Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune’s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be “one of the silliest things” that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.

I have been writing about the evils of litigation for something like 30 years, and following the litigious exploits of Donald Trump for very nearly that long. I think it very plausible to expect that if he were elected President, he would bring to the White House the same spirit of litigiousness he has so often shown as a public figure. (cross-posted at Cato at Liberty)

P.S. Also reprinted at Newsweek. And Ilya Somin cites further elements forming a pattern: Trump has expressed his wish to “have the FCC take some of his critics off the airwaves” and his regret that protesters at his events could not be dealt with in such a way that they “have to be carried out on a stretcher.” He also writes that should Trump proceed to appoint judges who strongly share his view of libel law, those judges “are unlikely to effectively protect other important speech rights and civil liberties.” And a late-January post from Patterico recalls Trump threats against the Washington Post (again), John Kasich, a t-shirt company, and a Jeb Bush PAC, to which might be added the Club for Growth, reporter Tim Mak, Scotland, Univision, and many more. Yet more: Mike Masnick, TechDirt.

Trump campaign files round of defamation suits

Donald Trump had a long record of filing defamation lawsuits before running for president, and as a candidate he famously vowed to “open up” libel laws to allow more suits. Now, over the past two weeks, his campaign has sued three news organizations, the New York Times, the Washington Post, and CNN, in each case alleging libel. [Eugene Volokh (summarizing Wall Street Journal coverage of Times and Post suits); Fadel Allassan, Axios (CNN suit)] Rep. Devin Nunes, a presidential ally, has filed seven suits against various entities [earlier and more]

Given the broad protections for writing about public figures enunciated by the Supreme Court in the case of New York Times v. Sullivan, few if any of these suits are likely to prevail at final judgment. Still, a suit like this serves “to drag people into court and imposes the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. ” [Howard Wasserman, PrawfsBlawg] Time for state legislators to consider enacting stronger protections against unfounded suits?

Attorney rebuffs Trump’s Fire and Fury cease-and-desist

Recommended: Attorney Elizabeth McNamara of Davis Wright Tremaine, a law firm known for its media defense practice, wrote this three-page letter on behalf of publisher Henry Holt and author Michael Wolff responding to Donald Trump’s letter demanding that it not publish Wolff’s book Fire and Fury (“My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”). How strong are the President’s claims based on contractual non-disclosure and non-disparagement clauses? David Post has a few things to say about that [Volokh Conspiracy] As for Mr. Trump’s possible defamation claims, American courts will not ordinarily enjoin a defamatory publication unless the fact of defamation has been proven at trial, so any remedy he may have will need to be after-the-fact in any case. “The suggestion that Donald Trump would actually follow through on this latest of his many legal threats, much less win…. is the hootworthy part.” [Lowering the Bar]

Addressing a cabinet meeting on Wednesday, the President once again called for changing libel laws to make it easier for plaintiffs to win, although libel is a matter of state rather than federal law [Gregory Korte and David Jackson, USA Today] Irony watch, from last month: “Trump’s statements ‘too vague, subjective, and lacking in precise meaning’ to be libelous,” in suit by political strategist who was the target of future President’s tweets in February 2016 [Eugene Volokh] “Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career,” I noted in this space last year. “Mr. Trump’s supporters should also keep in mind that one day they too will want to criticize a public official without being punished for doing so.” [John Samples, Cato]

“Opening up” libel law, cont’d

It is not clear whether a Thursday tweet from President Donald “Sue the Press” Trump should be interpreted as a serious policy proposal as distinct from an irritable gesture, but if its logic were pursued it might suggest that the chief executive favors extending defamation liability to coverage that is incomplete as opposed to untruthful and would have been fairer if it included points to be made on behalf of a covered personage. That’s not how defamation works under current First Amendment law, though [Jacob Sullum; earlier on Trump and libel]

Trump and regulatory retaliation: a letter

Here’s a letter to the editor I sent to the Washington Post that they didn’t publish, responding to a piece by their business columnist Steven Pearlstein.

To the editor:

Steven Pearlstein (Dec. 2) writes with apparent approval of the prospect that President Trump will “make an example of a runaway company by sending in the tax auditors or the OSHA inspectors or cancelling a big government contract. It won’t matter that, two years later, these highly publicized retaliations are thrown out by a federal judge somewhere. Most companies …will find a way to conform to the new norm.”

I was reminded of Paul Farhi’s revealing story in the Post last March about Donald Trump’s prolonged, losing libel suit against reporter Timothy O’Brien. Per that report, Trump “said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

The knowing use of a flimsy legal case to retaliate or intimidate, to inflict punishments or extract concessions a judge would never have ordered, is no more excusable when aimed at other sorts of businesses and professionals than when aimed at the press and reporters. In both cases it is wrong, it sets a bullying example to others, and it endangers the impartial rule of law.

— W.O.

(cross-posted from Cato at Liberty)

Donald Trump sends nastygram to Club for Growth

Public figure Donald Trump, target of a Club for Growth attack ad, has responded in characteristic manner by firing off a cease and desist letter to the club [Business Insider, Chris Cilizza/Washington Post] Trump lawyer Alan Garten calls the ad:

“…replete with outright lies, false, defamatory attacks and destructive statements and downright fabrications which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm,” Garten wrote.

Garten said he was only willing to offer the Club for Growth a “one-time opportunity to rectify this matter” and avoid “what will certainly be a costly litigation process.”

“In the event, however, that we do not receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements,” he concluded. “Please be guided accordingly.”‘

Four years ago I wrote about Trump’s long record of using litigation and its threat as a weapon against critics and journalists whose account of his business dealings he found displeasing, and questioned whether this pattern harmonized well with general Republican/conservative disapproval of the unnecessary use of litigation. Earlier on Trump. More: Jonathan Adler (“suit has no legal basis” and “is what is commonly known as a SLAPP suit — a suit that’s designed to shut people up.”)

Free speech roundup

  • Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
  • Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
  • When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
  • First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
  • “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
  • “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]

Cuomo to regulated banks, insurers: it might be risky for you to go on dealing with the NRA

As we mentioned in a brief earlier item, New York Gov. Andrew Cuomo has “directed the Department of Financial Services to urge insurance companies, New York State-chartered banks, and other financial services companies licensed in New York to review any relationships they may have with the National Rifle Association and other similar organizations. Upon this review, the companies are encouraged to consider whether such ties harm their corporate reputations and jeopardize public safety.” [Cuomo press release] Maria T. Vullo, Superintendent of Financial Services for the state of New York, issued a guidance memorandum. In language not altogether typical of safety-and-soundness financial regulation, Vullo wrote:

While the social backlash against the National Rifle Association (the “NRA”) and similar organizations that promote guns that lead to senseless violence has in the past been strong, the nature and the intensity of the voices now speaking out, including the voices of the passionate, courageous, and articulate young people who have experienced this recent horror first hand, is a strong reminder that such voices can no longer be ignored and that society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now.

Brian Knight writes at FinRegRag:

This request could easily be construed is a thinly veiled threat. While the NYDFS statement does not explicitly say that NY FIs (financial institutions) that may face regulatory sanction for failing to cut ties with the NRA, it doesn’t rule out the possibility either. If the NYDFS had no intention of threatening regulatory sanctions, they could clearly have added language taking the threat of enforcement off of the table. They didn’t, which indicates they want NY FIs to think there is a potential the government will come after them if they don’t end their relationships with groups like the NRA.

These instructions to NY FIs could also be seen as an attempt to suppress political speech that some New York policy makers disagree with. Whatever one thinks of the NRA, it is an organization engaged in legal political speech and advocacy. Cutting off the NRA’s access to financial services could change the political debate by reducing opposition to political efforts to tighten gun laws. The NYDFS release says, “This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.” Given that the NRA does not make a product that could pose a direct risk to public safety, this release is clearly referencing the NRA’s political advocacy.

Knight compares the initiative to the Operation Choke Point episode, in which federal regulators steered banks away from dealing with various controversial but lawful lines of business, including some that were politically fraught. But in that episode, at least, the target enterprises were primarily engaged in the sale of goods and services and thus might in principle have faced financial risks related by fraud or unfulfillable obligations to customers.

The NYDFS order appears to be inherently about political speech. After all, there is no allegation that the NRA is committing fraud against its members. Rather, the argument is that the NRA’s positions are so dangerous that they are harmful to the community and pose a risk to the reputation of any FI that works with them. This could fairly be seen as an attempt to restrict the NRA’s ability to operate in the political arena and marketplace of ideals.

The guidance memorandum might thus accomplish by indirection what it would be plainly improper for the state to attempt directly:

There is no law that says a FI (financial institution) cannot do business with a gun rights group and such a law would almost assuredly be unconstitutional. However if the regulator declares that such an affiliation poses a reputational risk to the FI (that the regulator, not the market, determined existed), it has leverage to force the FI to comply.

The NRA has filed a suit against the governor and New York officials saying the program amounts to “coercion” aimed at depriving the association and its constituents of First Amendment rights. More: Scott Greenfield.

Meanwhile, in other news of regulatory retaliation — see also our tag on that — U.S. President Donald Trump reportedly urged the U.S. Postal Service to double its rates for handling packages shipped by Amazon.com, linked in his mind through founder Jeff Bezos with his journalistic nemesis the Washington Post. Postmaster General Megan Brennan is said to have “resisted Trump’s suggestion in private conversations in 2017 and 2018, telling him that package delivery rates are set by contract and reviewed by an independent commission” and that the Postal Service does not get a bad deal from its arrangements with Amazon and other e-commerce firms. [Reuters]