President Trump Goes to Appeals Court (or At Least His Mean Tweets Do)

"The medium is not the message," a political consultant tells a New York appeals court.
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Assuming history books still get written and are not swamped by rising ocean tides and changing digital currents, future historians will likely devote themselves to analyzing President Donald Trump's relationship with his favored communications medium. In a just-published New York Times feature, Trump sums up the Braveheart rallying cry for the 21st century. "They want to take away my voice," he said. "They're not going to take away my social media."

What will Twitter and Facebook look like by the time Trump gets out of office, after a few years of FOMT — Republican media consultant Rick Wilson's abbreviation for "fear of mean tweets" — and after appeals courts get their own opportunities to regard Trump's MT and do something about it? Time to pay attention to the opening brief that political consultant Cheryl Jacobus has just filed at a New York appeals court.

Trump might be the Courtney Love of politics. (That is, if Love had used her many legal battles to springboard herself to becoming Bob Iger's successor at Disney.) Both have been featured in courtroom debates over whether social media is such a hyperbolic platform, that statements appearing there are incapable of defamatory meaning.

Jacobus alleges that Trump and his former campaign manager Corey Lewandowski hurt her reputation and damaged her career as a consultant and media pundit by making untruthful statements on television and on Twitter. Specifically, Jacobus takes issue with two tweets made by Trump after she appeared on CNN and criticized him for skipping a presidential debate. 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."

At a hearing before the case was dismissed, Trump's attorney argued that the statements were "pure opinion," and that as a public figure herself, Jacobus had access to the media and an opportunity to rebut points. "It's part of the normal discourse, up and back," said his attorney Lawrence Rosen.

Jay Butterman, attorney for Jacobus, is now seeking review for the holding from New York Supreme Court justice Barbara Jaffe that Trump's "intemperate tweets" couldn't rise to defamation. The judge concluded her opinion last January by remarking, "Indeed, to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll of the national consciousness like water off a duck's back."

Jacobus is now looking to have an appeals court directly take up the issue.

One of the questions presented in the brief (read in full here):

"Are statements that would normally be actionable as defamation because they assert defamatory facts in language that has precise meaning and describe events that may be objectively proven false, nevertheless rendered non-actionable opinion because they are made on talk shows and social media such as Twitter, in the context of the successful presidential campaign of President Donald Trump, who is notorious for using his Twitter account to disparage and attack opponents?"

Some legal observers have scoffed at the notion that there exists such thing as "twibel." Writing a few years ago about one of the Courtney Love disputes, Ken "Popehat" White made the point that courts have established that expression online is more likely to be taken as hyperbole or opinion and are just applying traditional free speech principles.

That might be true, but not everyone is happy at such an interpretation of First Amendment precedent.

"The philosopher Marshall McLuhan famously wrote that '[t]he medium is the message," states Jacobus' appellate brief. "The American law of defamation, however, does not follow McLuhan's dictum. In libel law, it is the message, not the medium, that matters."

Butterman is asking the appeals court to basically ditch the idea that there exists a special "Twitter defense," writing that the president's followers are perfectly capable of taking his statements at face value. The attorney also wants the appellate judges to recognize how the subjects of Trump's tweets later are in the crosshairs of a torrent of abuse.

"The lower court's analysis, if allowed to stand uncorrected by this Court, comes dangerously close to declaring Twitter a 'defamation free-fire zone,'" he writes. "This would render Twitter governed by the law for the jungle, rather than the law of the land."

This isn't Trump's only legal battle over things he's spouted on Twitter. On Tuesday, he was sued on First Amendment grounds for blocking some critics who follow his feed. And Friday, his attorney asked for dismissal of another defamation lawsuit brought by a former Apprentice star. There, Trump's lawyer made the same argument about the hyperbolic, opinionated nature of Twitter plus devoted an entire section in papers to why the president couldn't be held legally responsible for retweets. 

Trump is arguing that those who retweet aren't publishing, and to the extent retweeters are, he's insulated from liability under Section 230 of the Communications Decency Act. That bears repeating because when Congress enacted the law in 1996, the drafters might not have imagined a future president would render the statute Orwellian doublespeak. So again, President Donald Trump is looking at the Communications Decency Act to provide him cover for mean tweets. As he says, "They're not going to take away my social media."

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