Political strategist Cheryl Jacobus has just filed a lawsuit against Donald Trump, his calamusphobic bodyguard Corey Lewandowksi, and Donald J. Trump for President, Inc. This is relevant to my interests, so I read it. You can find it here.
I'm not going to talk about the procedural options open to Trump et al., as in my experience New York state civil procedure is an interminable dog's breakfast. But I will comment on the substance. Has Jacobus stated facts which, if believed, support a claim for libel?
Eh. Not very strongly.
The thrust of Jacobus' claim is that the citizens of Trumpelstan were annoyed with her commentary and so falsely asserted that she had begged for a job on the Trump campaign and become hostile when refused. Jacobus claims that it was Trump's team who sought her out, not the other way around, and that after two meetings she saw that they were a pack of lunatics and backed out.
More specifically, Jacobus complains of the following statements about her. By Lewandowski on on MSNBC's "Morning Joe":
She [Megyn Kelly] had Cheri Jacobus on yesterday, who, uh, you know, wanted to talk about Mr.Trump. This is the same person, I'll just tell ya, who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn't hired clearly she went and was upset by that.
Then this, in a tweet by Trump himself:
Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy @CNN
And another Trump tweet:
Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.
Jacobus complains that these false statements unleashed the Trumpalo Uruk-hai upon her life, causing fear and unpleasantness.
If any of this is defamatory, it is only barely so. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.) Only false statements of provable fact — or opinions implying false statements of provable fact — can be defamatory. How do you tell the difference? You look at the totality of the circumstances surrounding the statement, including the likely understanding of an audience familiar with the forum and the players. Hence, satire from a publisher known for satire isn't defamatory even if it's played straight, because an audience familiar with the publisher and players would spot it for what it is. Courts recognize that in some contexts, statements are particularly likely to be viewed by a familiar audience as mere rhetoric and not fact. Those contexts include politics, litigation, and the internet.
So. Jacobus admits that when approached by Trump's team she explored, and was interested in the possibility of, a job. That excludes the argument that it's defamatory to say you wanted to work for Trump, which certainly would have been mortally offensive to me. It also means that Lewandowski's statement that she came to the office multiple times trying to get a job and that she wasn't hired are literally true and not defamatory.
Trump's characterizations like "loser" and "zero credibility" and and "dumb" and "major loser" and "dummy" are not provable statements of fact, they are mere insults — rhetorical expressions of contempt. They can't be defamatory.
Trump's characterization of Jacobus as "hostile" is probably too indefinite, unprovable, and opinion-based to be defamatory. Whether she's hostile or not depends on a subjective political evaluation of the media appearances Trump was reacting to. That's very unlikely to be defamatory.
So we're left with Lewandowski's characterization that when Jacobus wasn't hired "clearly she went and was upset by that." Could that be defamatory by implying that Trump turned Jacobus down and was angry as a result and framing her commentary as a result? I guess, but it's a very weak argument. Lewandowski is opining, on a political show known for spin, about the reasons for Jacobus' specific statements on a particular episode of another political show. He's suggesting she was mad because she didn't get a job. It's a characterization by an overt self-interested partisan campaign mouthpiece rejecting an opposing political view. It's the equivalent of a dude saying "you shouldn't listen to what she says about me because I dumped her and she's mad." Nobody moderately reasonable takes that as a statement of provable fact. People familiar with the Morning Joe show would not interpret such statements by campaign managers as assertions of literal and provable fact.
The same goes for Trump's tweets. Jacobus says that it is false to say that she "begged" Team Trump for a job or that they turned her down. But these are statements made by a political candidate, who is primarily known for bluster and trolling, on a platform characterized by hyperbole, about the rough-and-tumble world of political consultants and campaign inside baseball. Once again, imagine a mouthy lout saying "that girl begged me to go out with her and then I dumped her." Rational listeners wouldn't expect that to be a factual recitation of events. Rather — as is the case with Trump — listeners familiar with the speaker would interpret it as a narcissist's unserious evaluation of any interaction with him.
In defamation law, there's a popular philosophical question: can someone be "defamation-proof"? That is, can someone's reputation be so awful that no falsehood can make it any worse? There's a flip-side of this as well: can someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact? This is what I call the batshit crazy rule and the Ninth Circuit more decorously refers to as "general tenor of the entire work." I think Trump — or at least Trump on Twitter — presents a good test case of the batshit crazy rule. Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact. Sad!
Frankly, the lawsuit seems primarily a vehicle to drop juicy allegations about Trump and Lewandowki in a court document that's absolutely privileged from defamation suit. Jacobus portrays Lewandowski as angry and unbalanced — though to be fair, not as angry and unbalanced as Lewandowski portrays himself day-to-day. Jacobus also asserts that the Trump campaign was being dishonest about its funding and was too cozy with PACs. As little regard as I have for all things Trump, the lawsuit read to me as strictly politics by other means.
2/10 would not lawsuit again.
Last 5 posts by Ken White
- Hate Speech Debate on More Perfect Live - September 5th, 2017
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017