Donald Trump says he wants to “open up” libel laws, but a few days before he becomes the next President of the United States, he became fortunate that such laws place high burdens on plaintiffs. A New York Supreme Court judge on Tuesday agreed to dismiss a defamation suit brought by Cheryl Jacobus, a political strategist who, Trump tweeted, had “begged” him for a job and went “hostile” when she was turned down.
Jacobus sued Trump and his former campaign manager Corey Lewandowski over comments made in the midst of a heated Republican primary. Seeking $4 million in damages, she alleged in her complaint that the Trump campaign 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 to Roger Ailes. She further claimed of coming to the judgment that working for Trump was untenable because Lewandowski was a “powder keg.”
In January 2016, she appeared on CNN to discuss Trump’s decision to skip a primary debate on Fox News and opined that Trump was “using the Megyn Kelly manufactured kerfuffle as an excuse.” A few days later, she returned to Don Lemon’s show and was dubious about Trump’s claims of self-funding his campaign.
This may have set Trump off. In one tweet, he wrote how he “turned her down twice and she went hostile. Major loser, zero credibility.”
In response to the defamation lawsuit, Trump moved to dismiss on the basis that the statements were “pure opinion,” not susceptible to any defamatory meaning because they couldn’t be proved true or false. His attorney also pointed the judge’s attention to the hyperbolic nature of Twitter, and wrote that when plaintiffs like Jacobus have access to the media, they face higher burdens because of their opportunity to rebut points.
This led to a noteworthy hearing in October where the judge heard Trump’s attorney, Lawrence Rosen, say that “perception is reality” and the plaintiff’s attorney, Jay Butterman, nod to Nazi Germany with a warning that the rights of individuals could be trampled upon just for voicing some criticism of someone in power.
Today, New York judge Barbara Jaffe released her decision granting Trump’s motion to dismiss.
“Trump’s characterization of plaintiff as having ‘begged’ for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff’s state of mind and is therefore, not susceptible of objective verification,” writes Jaffe. “To the extent that the word ‘begged’ can be proven to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel.”
The judge explores the context of the tweets and how Trump has used the medium. She notes “Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable.”
“His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ or ‘dumb,’ ‘zero/no credibility,’ ‘crazy’ or ‘wacko‘ and ‘disaster,’ all deflecting serious consideration,” she continues.
“And yet,” the judge adds, “the context of a national presidential primary and a candidate’s strategic and almost exclusive use of Twitter to advance his views arguably distinguish this case from those where heated rhetoric, with or without the use of social media, was held to constitute communications that cannot be taken seriously…. These circumstances raise some concern that some may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in a more formal and presumably actionable manner….”
The judge then writes that nevertheless, and “with the spirit of the First Amendment,” she finds a reasonable reader would recognize Trump’s schoolyard type squabble as rendering statements of “opinion, even if some of the statements, viewed in isolation, could be found to convey facts.”
The judge concludes, “Thus, although the intemperate tweets are clearly intended to belittle and demean plaintiff, any reasonable reading of them makes it ‘impossible to conclude that [what defendants said or implied]…could subject…[plaintiff] to contempt or aversion, induce any unsavory opinion of [her] or reflect adversely upon [her] work,’ or otherwise damage her reputation as a partisan political consultant and commentator…. 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.”
Here is the full decision.