9:40am PT by Eriq Gardner
A Look At Donald Trump, Libel Defendant: "Perception Is Reality"
Two weeks ago, upon a story in The New York Times carrying allegations that Donald Trump inappropriately touched two women, he threatened to sue the newspaper. Thus far, he hasn't. Nor has he followed through on other threats, including that time a few years ago when his attorney warned of repercussions when The Onion (yes, the satirical paper) published a fake Donald Trump column titled, "When You’re Feeling Low, Just Remember I’ll Be Dead in About 15 or 20 Years.”
In fact, for all the talk of Trump suing this or that publication or his female accusers or Ted Cruz or others, the only actual Trump-related libel lawsuit filed this year sees Trump as a defendant. So what does a guy who pledges to "open up" libel laws tell a court in order to beat a libel lawsuit? There's an answer to this thanks to a hearing that was held in New York just days before Trump shook his legal fist at The Times. A transcript of the hearing, which had Trump's lawyer telling the judge that "perception is reality" and the plaintiff's attorney making multiple references to Nazi Germany, was released Tuesday.
The lawsuit comes from Cheryl Jacobus, a political strategist who alleges in her complaint that Trump and his agents published false statements "with the purpose of making her an object lesson to those who might question Trump and his fitness for office, to incite a virtual mob against her, to destroy her reputation, and to bully her into silence."
Specifically, Jacobus takes issue with two tweets made by Trump in February. One stated she "begged us for a job. We said no and she went hostile." Trump wrote in the other, "Turned her down twice and she went hostile. Major loser, zero credibility."
She's also suing Corey Lewandowski, Trump's former campaign manager and now a CNN contributor, for saying on MSNBC's Morning Joe that she "came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn't hired clearly went off and was upset by that."
The complaint alleges that it was the Trump Campaign that tried to recruit her in May 2015, even attempting to entice her with the prospect of a post-campaign job at Fox News. She says Lewandowski told her that Trump was very close with Roger Ailes. She further claims of coming to the judgment that working for Trump was untenable because Lewandowski was a "powder keg."
In late January, she appeared on Don Lemon's CNN show and spouted the opinion that Trump was skipping a debate that month out of fear and "using the Megyn Kelly manufactured kerfuffle as an excuse." A few days later, she returned to that show and was dubious about Trump's claims of self-funding his campaign. This resulted in Trump's tweets and Lewandowski's interview at issue in the lawsuit.
Trump has now brought a motion to dismiss. On Oct. 5, New York Supreme Court justice Barbara Jaffe entertained arguments from his attorney, Lawrence Rosen, and hers, Jay Butterman.
Rosen went first and told the judge that the claims should be rejected because the statements were "pure opinion," meaning they aren't susceptible to any defamatory meaning because there's no way to figure out truth or falsity.
"At the end of the day, who wanted who ultimately or not ultimately, that is a matter of perspective," argued Rosen, probably with no idea that his client would soon be threatening to sue other women for claiming unwanted sexual advances. "Certainly, it's her point of view that she turned the Trump Campaign down, and that's fine; she can say she turned them down. I'm not even sure what 'turned them down' means. That's imprecise and vague language, your Honor."
Rosen added that Jacobus had submitted a salary demand of $20,000 a month, that no job offer was made and spoke of being in bed the night before the court hearing and thinking back to a girl he once knew in eighth grade.
"In my mind, I broke up with her and I was pleased to tell all my friends that I broke up with her; and in her mind, she had broken up with me, and she told all her friends, and it was the talk of the schoolyard," said Rosen. "It's perception. Perception is the opinion of the party. In this context, perception is reality."
Rosen made another point. He nodded to the context of the statements — a heated Republican primary and the opinionated, often hyperbolic nature of Twitter. He spoke of how Jacobus herself was going on television to express opinions.
"The courts have pointed out that when the plaintiff is a public figure themselves, as Ms. Jacobus is, they have access to media, and she certainly had access to media and certainly had an opportunity to rebut these points. It's part of the normal discourse, up and back."
The point is that public figures have a higher burden in defamation cases because they have means of countering allegedly false statements. Although Trump is seizing on this argument to escape a libel lawsuit, outside the courtroom, he's been expressing admiration for the British system where celebrities have an easier path to victory without the need to demonstrate malice over false statements made.
When it was Butterman's turn, the plaintiff's attorney stressed that the judge must figure out whether a reasonable juror could conclude the statements in question were defamatory. The attorney said "thousands and thousands of people have already concluded that these were factual statements and registered their outrage in such an extraordinary degree that Ms. Jacobus' entire career was destroyed by those Tweets," adding she had appeared 140 times on CNN before the tweets and never afterward.
Then, the hearing really became explosive.
"When we're talking about First Amendment analysis, it's not as much an issue here of Mr. Trump's First Amendment rights, which seem to be unlimited," said Butterman. "It's also a question of Ms. Jacobus' First Amendment rights. She was silenced. Her rights were trampled upon a defamation, by a lie. So where does that leave us? If this is not actionable, if this isn't a case which goes before a jury, if this isn't a case where the light of day can be seen, then nothing is forbidden, then everything is permitted, and then we're in an environment, frankly, reminiscent of Weimar, where individuals could be trampled upon just for opposition, just for stating some criticism of someone of power."
Butterman soon thereafter suggested the possibility of amending his complaint in a way that might explore the connection between Trump and hate groups. He noted a passage in his complaint that alleges that Trump loyalists had followed up the Republican candidate's tweets with their own attacks.
"And what that indicates...is that there was an intentional conspiracy to smear this woman," he told the judge. "This was organized. These tweets came down...within minutes of Mr. Trump citing these allegations. These tweets appeared with an elaborate graphic, the most horrific depictions — there was one of Ms. Jacobus being raped, one which we have in the complaint where Ms. Jacobus is shown in a gas chamber and Mr. Trump is wearing an SS uniform and hitting the button for the gas."
"Now, what does that go to?" asked Butterman rhetorically. "It goes to actual malice."
Jaffe has not yet ruled on the motion to dismiss.
Time will tell if Trump follows through on his own threats to sue news publications and various women for defaming him. Statute of limitations gives him a year in New York, and even though he hasn't brought a lawsuit thus far, keep in mind that he's litigious and could have an ax to grind after Election Day.
But something worth noting: Trump has called many of these women liars or implied as much. Those following the Bill Cosby scandal may recall how his reps painted their sexual assault allegations against him as "fabricated," "ridiculous" and "absurd." Last year, a judge allowed a defamation lawsuit by many of these women against Cosby.
In short, Trump could very well become a libel defendant in more lawsuits. Don't assume he'll be the plaintiff. And if that happens, he'll again be leaning on an America that's great enough to provide high burdens upon those who wish to go to court over what others say and write.