Vehement, Caustic, And Unpleasantly Sharp Attacks On Public Officials: It’s The American Way!

16 Minute Read

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APRIL, 2020

Written by
Mark M. Leitner

This was slated to be the third and final part of my series of posts addressing President Trump’s unprecedented effort to weaponize defamation law to intimidate the media and political opponents. Unsurprisingly, I wrote too much –so this post will lay out and apply the key principles of defamation law that defeat the claims, and will explain why any claims based on the cease and desist letters are destined to fail. In the final post (next week) of this series, I will first show why the President’s existing defamation suits cannot succeed, explain why I think the campaign, not President Trump himself, is pursuing these claims, and recommend what could be done to deter these abuses of our legal system.

The heart of First Amendment protection is near-absolute immunity for criticism of government, its officials, and candidates for office. We know from Monday’s post that the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”[1] We know from New York Times v. Sullivan that the First Amendment reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[2]

ONE: KNOWING OR RECKLESS LIES

New York Times, of course, is the first Supreme Court decision that applied the First Amendment to limit state defamation law, so it’s an ideal place to begin listing the legal rules that prevent President Trump from winning any of his strike suits. The Court held that because a public official’s threat of defamation litigation “dampens the vigor and limits the variety of public debate,”[3] the First Amendment requires that any public official bringing suit for criticism of his official conduct prove “actual malice” – that is, “knowledge that it was false or with reckless disregard of whether it was false or not.”[4] Thus, to win any of his lawsuits, President Trump must prove that the defendants either actually knew what they said about him was false, or that they “entertained serious doubts as to the truth of [their] publication[s]” and published the false statements anyway.[5] Negligence – for example, a failure to investigate where a reasonable journalist would have done so – isn’t enough to meet this high standard.[6]

TWO: SUBSTANTIAL AND MATERIAL FALSEHOOD

Part of proving knowing falsehood is proving that the statement is false in the first place.[7] For First Amendment purposes, “false” means substantially false: “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’”[8] Although it’s not a matter of First Amendment law but of the common law of libel in almost every state, the falsehood must also be material: that is, as then-Judge Neil Gorsuch wrote in a 2011 Tenth Circuit decision, “[t]o qualify as material the alleged misstatement must be likely to cause reasonable people to think ‘significantly less favorably’ about the plaintiff than they would if they knew the truth; a misstatement is not actionable if the comparative harm to the plaintiff’s reputation is real but only modest.”[9] Put another way by Judge Richard Posner in 1993, “[f]alsehoods that do not harm the plaintiff’s reputation more than a full recital of the true facts about him would do are thus not actionable.”[10]

THREE: STATEMENTS THAT CANNOT BE PROVEN FALSE ARE PROTECTED

Lots of people mistakenly believe that so long as you label a statement as “opinion,” they can’t be held liable for defamation. Those people are almost right: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[11] But as the Supreme Court ruled in Milkovich v. Lorain Journal Co.,[12]

If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.

Instead of seeking to distinguish absolutely protected “opinion” from potentially actionable “facts,” Milkovich directs courts to ask whether an allegedly defamatory statement can reasonably be read as implying an assertion of objectively verifiable fact; if so, that statement could support a defamation claim.[13] Milkovich also rules that courts must consider the context of the statement – both its placement in the article and its broader social context – as well as the “general tenor” of the article.[14] That is, did the statement appear in the opinion section, a hard news story, or a letter to the editor?

FOUR: CONTEXT IS CRUCIAL

Context is one of the most important issues in any defamation case. A plaintiff cannot base a defamation claim on “snippets taken out of context,” but must show that “a reading of the publication as a whole” supports a defamatory meaning.[15] Likewise, when a statement appears in a section “that features humor, comments, and criticism,”[16] or in a column that has a “breezy, rather than solemn tone,”[17] it is less likely to be interpreted as stating verifiable facts. Finally, so long as an author accurately states facts and then draws inferences from them, there can’t be a viable defamation claim, because the law presumes readers are able to consider the facts and decide for themselves whether the author’s inference is justified.

FIVE: INSULTS AND HYPERBOLE ARE NOT DEFAMATORY

Insults and over-the-top rhetoric have been part of Presidential campaigns since, well, people have been running for President. John Adams’s supporters in the 1800 election, for example, claimed that if Thomas Jefferson won, Americans “would see our wives and daughters the victims of legal prostitution” and proclaimed that “murder, robbery, rape, adultery and incest will openly be taught and practiced.”[18] (Jefferson won, by the way.) 170 years later, a real estate developer sued a local newspaper that had reported – accurately – that some citizens opposed to a project that the developer wanted approved had characterized his negotiating tactics as “blackmail,” arguing that the paper had charged him with the commission of a crime. The Supreme Court rejected his claim: “[E]ven the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.”[19] And the ghosts of Adams’s supporters muttered “that’s nothing.”

SIX: THERE’S MORE, BUT I’M ALREADY TAXING YOUR PATIENCE

We’ve only reviewed the basics – I assure you that I left a lot out. For example, because I think it’s important to consider how courts are treating claims that are similar but not identical, I wanted to discuss two cases that struck down on First Amendment grounds Minnesota[20] and Washington[21] statutes that made it a crime to make knowingly false statements in political advertisements. I think they are important because they show how difficult it is to sustain any claim based on a “false” political ad. Likewise, I didn’t discuss U.S. v. Alvarez, a 2012 Supreme Court case that struck down a federal law that criminalized lying about having won the Medal of Honor: “[S]ome false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”[22] But you’re going to have to go to the footnotes and read them for yourselves. The point of all the legal rules I have discussed is simple: it is damn near impossible for a public official or political campaign to win a case based on something supposedly untrue that someone said about you, especially when you are the President of the United States – and it should be that way.

…it is damn near impossible for a public official or political campaign to win a case based on something supposedly untrue that someone said about you, especially when you are the President of the United States – and it should be that way.

WHY THE CLAIMS ARE FRIVOLOUS

First, I’ll discuss the defamation claim based on the Priorities USA television ad. To recap, the ad (watch it again to judge for yourself)[23] is thirty seconds long, and contains sound clips of eight different statements made by President Trump relating to the coronavirus crisis, almost all of which downplay the seriousness of the virus. While the audio is playing, the text of the President’s statements appears on an animated graph showing the exponential increases in COVID-19 cases in the United States. The ad is clearly designed to challenge President Trump’s slow response to the threat posed by the virus.

The cease-and-desist letters isolate one sound clip that is a couple seconds long: “this is their new hoax.” The letters claim that by placing “this is their new hoax” right after “the coronavirus,” Priorities USA “fraudulently and maliciously impl[ied] that President Trump called the coronavirus outbreak a ‘hoax,’” when in fact “he was talking about the Democrats’ politicization of the outbreak when he used the word ‘hoax.’”

Context: Of a thirty-second advertisement that contains several statements by the President about the pandemic, the letters focus on two: “The coronavirus . . . this is their new hoax.” The letter ignores the other statements. But we know from above that context matters and President Trump can’t base a claim on “snippets taken out of context,”[24] so the entire ad must be considered. (This becomes important when we look at whether President Trump could possibly prove that the ad is substantially and materially false, as we’ll see.) The broader context also suggests viewers should expect partisan viewpoints, not an objective presentation of facts.

Substantial And Material Falsehood: If this was a judicial opinion, we could probably stop here, because President Trump can’t get over even this basic hurdle. But this is a legal blog and I want to demonstrate how smart I am. For a statement to be substantially false, considered in its full context, the “gist” or “sting” of the statement must be false. Even if the President is correct that the specific clip “this is their new hoax” is misleading, it can’t be isolated from the other clips like “we have it totally under control” and “one day, it’s like a miracle, it will disappear” and “when you have 15 people and within a couple of days it’s going to be down to close to zero.” The “gist” of the ad is that President Trump made inaccurate and misleading statements about the severity of the pandemic in the United States, all while cases were increasing exponentially. This cannot reasonably be disputed.

For similar reasons, “this is their new hoax” isn’t a material falsehood, if it’s false at all. Recall then-Judge Gorsuch’s ruling that “a misstatement is not actionable if the comparative harm to the plaintiff’s reputation is real but only modest.” The overwhelming majority of the President’s statements repeated in the ad were gross mischaracterizations about the pandemic. He was often contradicted by Dr. Anthony Fauci’s empirically-based views on what was likely to happen. President Trump’s own attempts to diminish the seriousness of the pandemic and his exaggerations of what his administration had already done – even if limited to the example sound clips used in the ad – outweigh any effect of the comparatively minor inaccuracy asserted in the cease-and-desist letters.

Finally, I’d argue that the ad should not be considered false if President Trump’s assertion – that the Democrats’ “politicization of the outbreak was a ‘hoax’”—is itself false. President Trump made the “hoax” claim at a rally in Iowa on Friday February 27, 2020.[25] At that same rally, he misled the audience by comparing COVID-19 to the flu—”35,000 on average each year die from the flu, that’s a lot of people,” and said that “so far we have lost nobody to coronavirus.” He also suggested the growing global panic was because the press was in a “hysteria mode.” Of course, by the end of February public health officials in and out of the administration, medical professionals, and probability experts were all clamoring for more action. Indeed, by that point China, Italy, and Spain were dealing with the very real effects of COVID-19. Even worse, two days earlier President Trump made his wholly unsupportable “15 down to zero” statement at a White House briefing – immediately after two top administration health officials said that the United States could expect to see more cases.[26] Democrats focusing on this baseless happy talk weren’t engaged in a hoax; they were telling the truth. At the very least, the full context of the President’s remarks shows why the accuracy of both sides’ statements should be fought out in the political arena, not a courtroom.

Knowing Falsehood: In a court case, this would never come up, because if President Trump could not prove falsity in the first place, it would be impossible to prove that Priorities USA knew the ad was false or harbored a high degree of awareness that it was false. The “actual malice” defense will play a bigger role in my upcoming discussion of why the President’s existing lawsuits against the Washington Post, the New York Times, and CNN will fail.

Footnotes
[1] Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). (return)

[2] 376 U.S. 254, 270 (1964). (return)

[3] Id. at 279. (return)

[4] Id. at 280. “Actual malice” was an unfortunate choice; in the half-century after New York Times it has been equated by slower judges and lawyers to the completely separate legal concept “malice,” which is roughly equivalent to hatred, spite, or ill will, but has nothing to do with the Constitutional principle established in New York Times. (return)

[5] St. Amant v. Thompson, 390 U.S. 727, 731 (1968). (return)

[6] Id. at 732-33. (return)

[7] Air Wisconsin Airlines Corp. v. Hoeper, 134 S.Ct. 852, 861 (2014) (“[W]e have long held . . . that actual malice entails falsity”). (return)

[8] Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)(citation omitted). (return)

[9] Bustos v. A&E Television Networks, 646 F.3d 762, 765 (10th Cir. 2011)(Italics in original). (return)

[10] Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). (return)

[11] Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). (return)

[12] 497 U.S. 1, 18-19 (1990). This summary of Milkovich and the “fact/opinion” distinction in defamation law does not come close to capturing all the relevant legal nuances, because this is a blog post and it would take a book. (return)

[13] Id. at 21. (return)

[14] Id. (return)

[15] Kaelin v. Globe Communications Corp., 162 F.3d 1036, 1040 (9th Cir. 1998). Yes, the plaintiff is Kato. (return)

[16] Bentkowski v. Scene Magazine, 637 F.3d 689, 695 (6th Cir. 2011) (return)

[17] Biospherics, Inc. v. Forbes, Inc., 151 F.3d 150, 184 (4th Cir. 1998). (return)

[18] Rick Ungar, “The Dirtiest Presidential Campaign Ever? Not Even Close!”, Forbes, Aug. 20, 2012.  (return)

[19] Bresler v. Greenbelt Cooperative Publishing Ass’n, Inc., 398 U.S. 6, 14 (1970). (return)

[20] 281 Care Committee v. Arneson, 766 F.3d 774 (8th Cir. 2014). (return)

[21] Rickert v. State, Public Disclosure Comm’n, 168 P.3d 826 (Wash. 2007). (return)

[22] 567 U.S. 709 (2012). (return)

[23] https://www.youtube.com/watch?v=bkMwvmJLnc0 (return)

[24] Kaelin , supra note 15, 162 F.3d at 1040. (return)

[25] https://www.nbcnews.com/politics/donald-trump/trump-calls-coronavirus-democrats-new-hoax-n1145721 (return)

[26] https://www.msnbc.com/rachel-maddow-show/line-coronavirus-outbreak-trump-may-come-regret-n1144686 (return)