Defamation Law Series: Trumping Defamation Claims

Kelley Drye & Warren LLP

President Donald Trump and First Lady Melania Trump recently have found themselves embroiled in two separate defamation cases in state courts – but while the President defended himself against claims resulting from his late-night tweeting, the First Lady brought her case as a plaintiff seeking damages against an online blogger and media company.

Relying On The Protections Of The First Amendment, Trump Defeats Defamation Claim Against Him

In January 2017, a New York judge dismissed a defamation lawsuit filed against then-President Elect Trump in ruling that insults and offensive language hurled back-and-forth on Twitter are generally considered to be opinion.  New York County Supreme Court Judge Barbara Jaffe stated in her decision that Trump’s regular tweets against his critics “all deflect[] serious consideration.”

In the lawsuit, Cheri Jacobus v. Donald J. Trump, case number 153252/2106 (Supreme Court of the State of New York, New York County), veteran political strategist and consultant Cheryl Jacobus sought $4 million from Trump and his former campaign manager.  She alleged that the then-presidential candidate and his campaign defamed her by falsely claiming that she “begged” for a communications job with the campaign and sought payback when she wasn’t hired by criticizing Trump during subsequent media appearances.  Early in 2016, Jacobus appeared on television in a commenter role and panned Trump’s motives for his threat to skip a debate.  She also said that Trump was a “bad debater” who “comes off like a third grader faking his way through an oral report on current affairs.”

In response to that commentary, Trump fired off a series of tweets stating first that Jacobus “begged us for a job.  We said no and she went hostile.  A real dummy!” and later that Jacobus “begged my people for a job.  Turned her down twice and she went hostile.  Major loser, zero credibility!”

Jacobus’ lawsuit contended that these tweets were based on the untrue assertion that she had “begged” for a job and was rejected for the position.  While the court characterized Trump’s tweets as “intemperate,” the decision held that tweets stating Jacobus “begged” for a job should be considered statements of Trump’s opinion protected by the First Amendment: “To the extent that the word ‘begged’ can be proved 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 the plaintiff and Trump were engaged in a petty quarrel.”

Essentially, the court determined that Trump’s tweets against Jacobus were mere opinions – and therefore not libelous.  In doing so, the court relied on the context of Trump’s Twitter reputation.  The court emphasized that Trump employs a “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” and attacks others via Tweets that are “rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ . . ..”  Because Trump has a recognized history of posting derogatory tweets against others, the court essentially determined that his tweets criticizing Jacobus needed to be examined within the same context – as part of his opinion and therefore not as defamatory.

Thus, even though the tweets belittled Jacobus, the court found that no reasonable reading of the comments would reflect adversely on the television commenter and dismissed the case.  According to the court, it was “impossible to conclude” that the tweets damaged Jacobus’ reputation as a political strategist and consultant.

Melania’s Contention: Defamation Claims Led to Loss of Economic Opportunity

In contrast to the defamation case against her husband, First Lady Melania Trump’s foray into the world of defamation law came as a plaintiff in bringing a suit claiming $150 million in damages.  In September 2016, Trump’s attorneys sued Maryland blogger Webster Tarpley and the online Daily Mail for publishing a blog and article that reported rumors that she once worked as a high-end escort instead of as a fashion model.  The suit was filed in Montgomery County, Maryland state court – the jurisdiction where Tarpley lives.

More specifically, in August 2016, Tarpley’s blog published allegations that the first lady worked for an escort service in the 1990s and suffered a nervous breakdown during the presidential campaign.  In recent weeks, Trump settled the lawsuit against the blogger. The Washington Post reported that he agreed to apologize to the Trump family and pay her a “substantial sum.”  According to the statement provided by Trump’s attorneys: “I posted an article on August 2, 2016 about Melania Trump that was replete with false and defamatory statements about her,” Tarpley said. “I had no legitimate factual basis to make these false statements and I fully retract them.”

However, the claims against the Daily Mail were dismissed on jurisdictional grounds by the Maryland judge – forcing Trump to re-file the case in New York, where the company that publishes the Daily Mail’s website has its corporate offices.  See Melania Trump v. Webster Griffin Tarpley, et al., Case No. 424492-V (Circuit Court of Montgomery County, Maryland).

According to the Maryland court, the alleged defamatory article in question was about the plaintiff – a New York resident – and the statements forming the basis of her claims concerned events that took place in New York or in foreign countries.  Thus, even though Trump’s attorneys asserted that the publication of defamatory statements by a national publication with significant circulation in Maryland should give rise to personal jurisdiction, the court determined that the Daily Mail did not intentionally enter the Maryland market specifically but rather targeted the United States market as a whole.  The court reasoned that no reporter or editor traveled to Maryland in the course of editing, reporting or publishing the article, the Daily Mail does not have an office in Maryland, the plaintiff herself does not live in Maryland, and the witnesses were not located in Maryland.  Thus, the court held that it would be “unreasonable as a matter of constitutional due process for this Court to exert jurisdiction over MMI or MailOnline in the State of Maryland.”

On February 6, 2017, Trump re-filed the libel suit against the Daily Mail’s publisher in New York state court. See Melania Trump v. Mail Media Inc., case no. 650661/2017 (Supreme Court of the State of New York, County of New York).  Trump’s complaint asserts claims for defamation and intentional infliction of emotional distress, as she contends that the article stating she worked as an “elite escort” rather than a fashion model and took part in a lesbian-themed nude photo shoot led to a loss in value of her brand of commercial products. The complaint estimated Trump’s economic damage in the “multiple millions of dollars” and refers to opportunities she had “to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multimillion dollar business relationships for a multiyear term during which plaintiff is one of the most photographed women in the world.”  Because of the Daily Mail’s defamatory article, the complaint alleges that Trump’s brand “has lost significant value” as her commercial opportunities have been reduced.

[View source.]

Written by:

Kelley Drye & Warren LLP

Kelley Drye & Warren LLP on:

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