11:15am PT by Eriq Gardner
Trump Argues His Sexual Assault Denial Is "Political Speech" Outside Reach of Defamation Law
Donald Trump's lawyer is presenting a theory on when politicians can be sued for defamation. Spoiler: It's fairly limited circumstances.
The theory was outlined in court papers on Tuesday in an ongoing lawsuit by season-five Apprentice contestant Summer Zervos, who alleges being forcibly kissed twice in 2007 and attacked in a hotel room. Zervos is suing over Trump's denials during the heat of his presidential campaign including a statement of how allegations from many female accusers were "100 percent fabricated and made-up charges, pushed strongly by the media and the Clinton campaign."
If that argument doesn't work, Trump's lawyer is also asking the judge to take a fairly broad reading of the First Amendment by holding that whatever he said isn't defamatory as a matter of law.
"Ms. Zervos cannot hold the President liable for engaging in political speech in the context of a public debate because such speech is clearly protected by the First Amendment," states Trump's memorandum in further support of a motion to dismiss. "Political statements in political contexts are non-actionable political opinion."
Trump's denials of committing sexual assault happened after the release of a bombshell video showing him boasting to Access Hollywood's Billy Bush about grabbing women's genitals. The video ignited a firestorm, and as Trump denied any misbehavior, several women, including Zervos, came forward to identify themselves as victims. Trump issued more denials and even threatened to sue his accusers once the election was over. Trump never did sue, but he's now defending himself in court and presenting his statements as part of a "back and forth" public debate, even if the discussion over sexual assault hardly touched on any area of public policy.
"This is a politically driven action, brought against a sitting President for exercising his First Amendment right to speak on political and public matters concerning, among other things, his own qualifications for President, the media’s role in the election process, and the tactics of his opponent, Hillary Clinton," writes his attorney, Marc Kasowitz.
Kasowitz then puts forward the Trump theory on when politicians can be sued for defamation.
"Contrary to Ms. Zervos’ argument, President Trump is not seeking 'blanket immunity' or 'carte blanche' for a candidate 'to say what he likes' 'in the midst of a political campaign[.]' As a matter of First Amendment principles, 'courts shelter strong, even outrageous' political speech, which the audience would reasonably view as part of a free, political discourse, rather than defamatory. However, there are limits to the 'wide latitude' campaign speech is given in defamation cases. For example a candidate’s specific, false allegations of criminal conduct might not be protected, as the cases Ms. Zervos cites demonstrate. But this case does not come anywhere close to that. Here, Mr. Trump was merely defending his character and qualifications for office from the false attacks Ms. Zervos leveled against him just a few weeks before the Presidential election."
To restate, Trump says if a candidate falsely accuses someone else of criminal conduct, that's not protected. (Lock her up!) However, Trump essentially says if a candidate denies criminal conduct (because sexual assault is against the law), that's political opinion.
Trump is a bit self-referential when it comes to legal support.
About a week before Trump assumed the presidency, he beat a libel lawsuit over tweets directed at political strategist Cheryl Jacobus.
The judge in the Jacobus case, in weighing Trump tweets how Jacobus "begged" for a job and had "zero credibility," concluded that "a reasonable reader would recognize defendants' statements as opinion, even if some of the statements, viewed in isolation, could be found to convey facts."
In coming to that conclusion, the judge also remarked, "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."
The Jacobus decision is on appeal, but Trump's lawyer writes it is "directly on point," that it is relevant that "Ms. Zervos both directly and through her politically motivated counsel, continuously and readily accessed the media to debate Mr. Trump's fitness for office."
For those who heard Trump's pledge to loosen libel laws to make it easier to sue the media, realize that whatever he pledged, it's far outstripped by reality. Here, Trump is not only holding the First Amendment up as his salvation and arguing a judge needs to create a safe space for political discourse, he's also asking the New York judge to import California's anti-SLAPP statute — which is designed to deter impingements of First Amendment activity — for the purposes of weighing Zervos' claims, shifting the burden of proof, and potentially winning attorneys' fees. If successful, Trump will have participated in gifting defamation defendants in the media capital even greater special protection.