Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is

Spanish-language network Univision has cancelled its telecast of the Miss America pageant in the wake of Donald Trump's characterization of Mexicans, and Trump has now sued Univision in response. The lawsuit, filed in state court in New York, is here.

I won't opine on Trump's contract-related claims without reading his agreement with Univision. But Trump and his lawyer, Jeffrey L. Goldman of Belkin Burden Wenig & Goldman LLP, have also included a defamation claim. As befits Trump, the claim is loud, vulgar, and stupid.

The defamation claim arises from Univision President of Programming and Content Alberto Ciurana using Univision's Instagram account to post photos of Trump and mass murderer Dylann Roof side by side with the words "no comments." Ciurana was no doubt thinking of Trump's characterization of Mexican immigrants:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

Trump claims that Univision and Ciurana have broadcast false statements about him, and demands $500 million in recompense. But the defamation claim itself doesn't specify what false statements Trump is upset about; it only refers back to the factual recitation of the complaint. That section, in turn, only states that Trump made "insulting remarks about Mexican immigrants" and vaguely refers to (without printing or describing precisely) the Instagram post. Remember: vagueness in defamation claims is the hallmark of meritless thuggery.

As Eric Turkewitz points out, Trump's defamation claim is sanctionably frivolous. Ciurana's post wasn't a potentially actionable false statement of fact. It was a satirical statement of opinion — a hyperbolic assertion that Trump's actions show him to be a bigot. Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.

Trump's defamation claim also plays into the vapid modern narrative that vigorous criticism impairs First Amendment rights. Trump and his lawyers refer to "Univision's attempt to suppress Mr. Trump's First Amendment rights and defame his image," referring back to the Instagram post. In the same breath, they complain of "Univision's dubious efforts to create a false narrative." Trump's speech is protected and should be lionized; speech criticizing it is illegitimate and unprotected. Trump's lawyers sometimes make this very stupid argument within the same sentence:

Univision, in an obvious attempt to politicize the situation and suppress Mr. Trump's right to free speech, including his views on both trade and illegal immigration along the U.S.-Mexican border, has made a concerted effort, upon information and belief, in collusion with others, to wage war against Plaintiffs in the media.

I sympathize with attorney Jeffrey L. Goldman. Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher. But no matter how freakishly swollen a client's ego, an ethical lawyer is supposed to refrain from filing vexatious publicity-seeking claims. Goldman failed at that ethical obligation. Shame on him. And Trump? The man clearly lacks the capacity for shame.

Last 5 posts by Ken White

Comments

  1. qitaana says

    Awww, The Donald's branded line of menswear at Macy's has been discontinued. Wonder when the lawsuit over that is going to be filed?

  2. Babs says

    Not to mention a defamation claim presupposes it's even possible to damage the reputation of this feckless buffoon.

  3. En Passant says

    Trump's defamation claim also plays into the vapid modern narrative that vigorous criticism impairs First Amendment rights.

    Vapid narrative Americans have rights too! They didn't ask to be born insufferably stupid.

    Where is the funding campaign to help Roof sue Univision for defamation too? Won't somebody think of the children?

  4. Penfold says

    The chances of the court imposing sanctions are the same as Trump's chances of being elected President.

  5. Jeff says

    The chances of the court imposing sanctions are the same as Trump's chances of being elected President.

    In a sensible world, both would equate to zero. In this world, where I keep expecting to hear about a new competitor to Fox starting up and calling them "too highbrow", very little of a negative mindset would surprise me. At the risk of histrionics, it's very nearly evident that civilization and civility are in decline; the downward speed passed "hypersonic" some years ago; nobody can agree on what a "bottom" would constitute, let alone when we'll hit it; and on and depressingly on.

    Paleosociologist and political-history PhD students, centuries from now, will have a very hard time separating historical fact from contemporary dystopian fiction; I don't envy their thesis advisers.

  6. Dan says

    @Jeff,

    In a sensible world, both would equate to zero.

    No, in a sensible world, the chances of the court imposing sanctions would approximately equal one. Unfortunately, the courts are far too reluctant to impose sanctions against attorneys (and parties) for filing frivolous actions, even though the tools to do so are already in place. See the case of Joseph Rakofsky, who sued a good chunk of the Internet for accurately reporting what happened during his incompetent representation of a murder defendant. Though the case was eventually dismissed, no sanctions were imposed on him or his counsel for filing and maintaining an utterly frivolous action.

  7. dbomp says

    Spanish-language network Univision has cancelled its telecast of the Miss America pageant…

    It's the Miss USA and Miss Universe pageants that are Trump's, not Miss America.

  8. OrderoftheQuaff says

    This is it for Donald Trump. I wonder if there's something medically wrong between his ears. Without TV, his beauty pageants will die. Die, pageants, die! Nobody will want to compete for Miss New Jersey if they can't go on TV and compete for the higher levels. Just a nylon sash and a rhinestone crown isn't gonna do it.

    So what does a pageant evaluate, anyway? Evening gown, swimsuit, talent and that indefinable poise. DT's poise has gone south, money doesn't equate to talent, and I don't want to see him in a swimsuit.

  9. Craig says

    I had no idea there was such a thing as an anus bleacher, let alone an inadequately-supplied one.

  10. Vince Clortho says

    "I sympathize with attorney Jeffrey L. Goldman. Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher."

    OR… Jeffrey Goldman has the ultimate client. Rich, stupid, and always in trouble. Think of the billable hours.

  11. Maurice de Sully says

    Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.

    Sure, but the Roof comparison wasn't merely calling Trump racist or suggesting he was a bigot, it was asserting that- like Roof- he was comfortable with violence against minorities. That claim is a fair bit different than simply calling someone a racist.

    I don't disagree with the satire analysis, but it seems like the instagram post would effectively kill any effort at sanctions. Are there any examples of defendants using the satire "defense"- and being able to successfully argue that the offending message was so obviously satirical that sanctions are permissible?

  12. pjcamp says

    Who is this "Trump" you speak of?

    He reminds me a great deal of Fuckface Von Clownstick.

  13. Matt says

    And Trump? The man clearly lacks the capacity for shame.

    We've known this for decades. All it takes is one look at the places he lives, and the amount of tacky gold leaf that covers *everything* in them…

  14. C. S. P. Schofield says

    Trump is so very, very of a certain type; he's handsome-done-to-seed, he is or looks blond Irish, he's loud, stupid, arrogant, and somehow never gets the full weight of the consequences of being such a suppurating a$$hole.

    He really should be made an honorary Kennedy.

  15. Jeff says

    Sure, but the Roof comparison wasn't merely calling Trump racist or suggesting he was a bigot, it was asserting that- like Roof- he was comfortable with violence against minorities. That claim is a fair bit different than simply calling someone a racist.

    Your certainty about that assertion is surprising. It could be mocking the visual similarity, which is mean-spirited and petty, but certainly not actionable. It could advocating be that we should despise Trump as much as Roof, which is certainly an opinion. Asserting that it makes a claim that Trump advocates violence? I don't see it.

  16. Pablo says

    Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher.

    Sure, but billing him must be dreamy.

  17. Levi says

    Sure, but the Roof comparison wasn't merely calling Trump racist or suggesting he was a bigot, it was asserting that- like Roof- he was comfortable with violence against minorities. That claim is a fair bit different than simply calling someone a racist.

    What possible provable statement of fact could this picture assert? Is there any conceivable rationale where two pictures juxtaposed with the words "no comment" would succeed in any defamation claim? Swap them out with Obama and goatse or whatever.

  18. CJColucci says

    I know you're not commenting on the contract issues until you can see the contract, but that part of the case is not obviously frivolous and might even have merit. Still, Trump's actions have pretty clearly reduced the value of the broadcasts. Whether that is a defense to a claim of breach I haven't looked into, but it would surely have substantial bearing on damages.

  19. Dan S says

    Sure, but the Roof comparison wasn't merely calling Trump racist or suggesting he was a bigot, it was asserting that- like Roof- he was comfortable with violence against minorities. That claim is a fair bit different than simply calling someone a racist.

    In fairness, Maurice, you seem to be reading that particular assertion into the comparison. The Instagram post itself simply juxtaposed their faces and said only "no comments." Aside from a general assertion that they're both racist, it might just as well be read as nodding to Trump's quote about Mexicans and the Charleston shooter's reported comment to a bystander he spared:

    'I have to do it. You rape our women and you're taking over our country. And you have to go.'

    In any case, I would suspect that suggesting they're both so racist as to be comfortable with violence against minorities, based upon known and disclosed facts, is as much a protected statement of opinion as simply calling him racist. But ultimately that's more Ken's area of expertise.

  20. Maurice de Sully says

    What possible provable statement of fact could this picture assert

    The one I suggested.

    Is there any conceivable rationale where two pictures juxtaposed with the words "no comment" would succeed in any defamation claim?

    I don't believe so.

  21. Trent says

    Trump is by every definition of a person of public interest. For it to be defamation of Trump, Trump has to prove the statement was made with actual malice. That's a near impossible standard to meet. He's got zero chance of prevailing on this. Far worse has been said about other presidential candidates and none of it is actionable.

  22. Pete says

    When Mexico sends its people, they’re not sending their best.

    That statement alone is sufficient grounds to kick Trump off the planet. It oozes smug deceit, and it's calculated to resonate with fearful, bigoted Fox News octogenarians. I don't have the brains of a billionaire, but I'm pretty sure that the Mexican government is not "sending" anyone here. Immigrants to America in 2015 have the same motivations as those in 1915, some of whom were not "the best" either, but that's hardly Trump's point, is it? Happily, the rat bastard has zero chance of being elected to any public office. Americans just aren't that stupid.

  23. Nat says

    I luvvvvs how statements made by a presidential candidate during the announcement of his candidacy about immigration were not at all political until someone else dared to politicize them!

  24. Pablo says

    It oozes smug deceit, and it's calculated to resonate with fearful, bigoted Fox News octogenarians.

    Not that you'd know anything about smugness or bigotry.

  25. Micah says

    Do you think Trump cares about the finer points of defamation law? He got attention. People are talking. (even on this blog) He is laughing all the way to the bank. (and this presidential race may very well turn into a very profitable publicity stunt for his side gig) It always puzzles me when someone is called an idiot for abusing civil litigation. Unethical, sure. But stupid? Hmmmm

  26. albert says

    I'll argue that Trump may deserve the title "King of the Douchebags", but he's got a lotta competition. (Like Ann Coulter).
    .
    The real beer and popcorn moment will be when a Mexican-American woman sweeps the competitions. And the loser is: Univision. No, I don't think Trump is gonna lose. The man is immune to douchebagness. This might even help his campaign :)
    .

  27. Rick says

    Vagueness in defamation claims is the hallmark of meritless thuggery.

    Is that known as White's Law yet?

  28. Wick says

    Mr. Trump seems fond of frivolous lawsuits against critics. See also, Trump v. Maher.

  29. Nlp says

    I knew that having Donald Trump as a candidate for president would provide lots of entertainment, but I never thought there would be this much this soon.

  30. Dave B says

    Ah the old "your private company is infringing on my first amendment right to be protected from the government preventing me uttering my opinion" sort of claim.

    It's all about his publicity stunts.

    Even if he is sanctioned he can always declare bankruptcy again.
    Financial bankruptcy, his moral bankruptcy doesn't need a further declaration.

  31. JimmmyMick says

    @Pete wrote "Happily, the rat bastard has zero chance of being elected to any public office. Americans just aren't that stupid."

    Seriously? You lot elected *two* Bushes. *two*. One didn't like broccoli, and the other…

    [offers global apologies for the election of The Abbott, which was *not* my doing]

  32. TXDave says

    @Jeff:
    In my more cynical moments, I figure we've got 5-10 years left before the Second American Civil War. In my less cynical moments, I say 10-20. Either way, within my lifetime. I'd say a social upheaval of that magnitude would constitute a "bottom" for the USA.

  33. Jeses Christ says

    This post is so unluxurious. Clearly you missed the US Constitutional bylaw that states that "Stupid and non-luxurious Univision shall not spake ungood things about Donald Trump, his present and former heirs, executors, administrators, partners, co-obligors, co-guarantors, guarantors, sureties, family members, spouses, attorneys, insurers, agents, representatives, predecessors, successors and/or assignees." How could you miss it, it's right there in Article VIII.

  34. Careless says

    @Jeses At the risk of sounding insufficiently knowledgeable about Trump, does he say "luxurious" a lot or something?

  35. Patrick Maupin says

    @Maurice de Sully:

    Sure, but the Roof comparison wasn't merely calling Trump racist or suggesting he was a bigot, it was asserting that- like Roof- he was comfortable with violence against minorities.

    What possible provable statement of fact could this picture assert?

    The one I suggested.

    Your statement, and reiteration, that the posting of those pictures is an unambiguous declaration that Trump "was comfortable with violence against minorities" is an interesting one.

    Frankly, were I on a jury, I would be extremely comfortable awarding Alberto Ciurana damages for your defamatory statement, and extremely comfortable telling Trump to go pound sand.

  36. Tymestalker says

    @Maurice I dunno. When I see that picture, combined with Trump statement that "…they're not sending their best. They're sending people with lots of problems" I kind of took it as pointing out that Trump seems to be oblivious that the crime and such Trump is bemoaning can just as easily crop up in one's own backyard and that anyone of any race can be just as guilty of such horrific things. It's not a race issue. It's a humanity issue.

  37. Trent says

    People seem to forget that Trump is at his heart and has his primary business as property development. Developers (the property kind) are generally this biggest liars, con men, flim flam artists and general jackasses you will ever meet. This class of people can often be found in state legislatures because they are one of the few professions that has the time to sit around and make state property decisions to enrich themselves.

    One thing I can say with pretty high certainty, if a developer is talking they are lying. And Trump talks a lot.

  38. Rick says

    Developers (the property kind) are generally this biggest liars, con men, flim flam artists and general jackasses you will ever meet. This class of people can often be found in state legislatures because they are one of the few professions that has the time to sit around and make state property decisions to enrich themselves.

    I bet if you took a poll you'd find that more people think that of lawyers ("99% give the other 1% a bad name") than of developers. And guess what profession is most represented in politicians?

  39. David Schwartz says

    Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.

    Sure, but the Roof comparison wasn't merely calling Trump racist or suggesting he was a bigot, it was asserting that- like Roof- he was comfortable with violence against minorities. That claim is a fair bit different than simply calling someone a racist.

    Even if that's true (which I think is a huge stretch) it doesn't change the analysis. We're perfectly free to allege that Trump's comments lead us to believe he's comfortable with violence against minorities. After all, Trump is, by his own choice, a candidate for President. I could have a field day trotting out much worse Trump quotes about Obama.

  40. Sad Panda says

    Am I the only person to read the Trump/Roof picture as a comment that the US does just fine creating violent criminals all by itself? The physical resemblance is only an inconsequential bonus.

    If the US sealed off its border with Mexico, the impact on US agriculture would be much larger than the impact on the prison industrial complex.

  41. Tsk tsk says

    The matter of the picture is that the first, most obvious reading is the comparisons between their expressions in the featured pictures. The second obvious one is that of racist white dudes.

  42. says

    I looked quickly at the contract claim. If Univision's contract did not have the typical clause that can often be found in contracts with entertainers (including athletes) that lets the company out for bad behavior by the entertainer, it strikes me that Univision might have a problem. The complaint https://www.scribd.com/fullscreen/270123665 identifies Section 5(b) of the contract as containing three grounds for termination, although the complaint never quite avers that these are the ONLY only grounds for termination.

  43. Kratoklastes says

    @albert (July 1, 2015 at 4:08 pm)

    he's got a lotta competition. (Like Ann Coulter).

    Unlike Trump, mAnn Coulter has two (or perhaps three) purposes:
    ① she (?) makes retarded assholes like (David) Brooks, (Tom) Friedman and Krugman seem positively sane by comparison (thereby moving the goalposts of public opinion);
    ② she (?) makes 'Caitlyn' Jenner look like a real live woman by comparison; and (possibly);
    ③ she (?) serves as a cautionary tale that cutting off the balls and shaving down the Adam's Apple does not always yield tasteful results.

    Trump's primary social role – showing how ludicrous a combover makes you look – has already been done (by Bidee-Bidee Nutty-Yahoo, for one).

    The one interesting thing about Trump is how come his creditors have not driven him into personal bankruptcy: Trump must have the goods on someone, and that someone must be powerful enough to render Trump TBTF.

    Given the sorts of depraved shit that goes on in hotel rooms at political conventions (and the ease with which a hotel proprietor could record same), I have no doubt that Trump's data repository would be a fine fine target for anyone wishing to bring down some political figures.

  44. @Kratoklastes says

    Whoa, stepping up to the big-leagues, hunh. You are rivaling both those retarded assholes.

  45. Richard Smart says

    Mr White,
    You mentioned that "As Eric Turkewitz points out, Trump's defamation claim is sanctionably frivolous." There's a link to the Turkewitz blog, and the sanctionable part of the claim appears to be that:

    "New York prohibits making an ad damnum clause in a personal injury case, and defamation falls into that category. It was outlawed in 2003. Yet Trump does it anyway… The usual response by judges is simply to strike the demand… A far better avenue for the court is levy sanctions for having done it."

    Mr Turkewitz provides a link to Overlawyered's article and it does indeed carry the headline, "New York abolishes ad damnum". But when you read the article text you find that ad damnum clauses were not abolished in 2003 – rather, the requirement for an ad damnum clause was removed. The opening lines go like this:

    Late last month New York Gov. George Pataki signed into law a bill that will abolish the requirement that a personal injury or wrongful death lawsuit specify at the outset (in its “ad damnum” clause) the amount in dollar damages it is seeking.

    So previously, mentioning the money value of a personal injury claim was compulsory; now it is not. Mr Trump's lawyer simply seems to have taken advantage of an option available to him.

    Have I got this right? I ask because it occurs to me that Jeffrey Goldman might appreciate a retraction, if not an apology (given his client).

  46. Richard Smart says

    Sorry for the new post, ran out of time to edit. Tracking down the relevant portion of the code, it states:

    "In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled."

    That's N.Y. CVP. LAW § 3017 : NY Code – Section 3017: Demand for relief. Mark you his absolute shall. So it does actually appear that the money amount was prohibited in the ad damnum clause.

  47. albert says

    @Kratoklastes,

    Take 'er easy there, Pilgrim. All I did was call Trump a douchebag (and Coulter as well).

    The Coulter thing was a cheap shot, I'll admit, but that's the risk one takes when indulging in stream of consciousness commenting.

    .

  48. Patrick Maupin says

    @Kratoklastes:

    Why are you micro-aggressing against trans-gendered folk by comparing them to Ann Coulter?

  49. Sad Panda says

    @Patrick Maupin:

    Kratoklastes is just following the example set by the Univision picture. Micro-aggressing against mass murdering racists by comparing them to Trump.

  50. Bob says

    @Kratoklastes

    Thomas Friedman has won a Pulitzer Prize. Krugman has numerous awards for his economics work they are not "assholes." Brooks while a conservative journalist is not my cup of tea, he deserves some respect. Why would someone bring these names up in comparison to Trump and Ann Coulter? Another both sides are bad attempt from the right. And the LGBT insult way more pathetic. I suggest you go back to reading the Tea Party websites you love posting at.

  51. Kratoklastes says

    @Patrick Maupin – surely it was far worse than micro-aggressing? It probably rises to the heinous crime of milli-aggression. I am certain that in future, newcomers to US campuses (campi? TNIRN) will receive pamphlets about how saying that mAnn Coulter looks like an ugly trannie-hooker is doubleplusungood and leads to unbellyfeel.

    @Sad Panda – I think it's going too far to state openly that "transgender"*** people are mass murdering racists. I would reserve that sort of calumny for "transgender"*** people who own ponies or who have pony-related plans.

    (See what I did there? I nano-aggressed against Nutty-Yahoo by not referring to him as a racist genocidal whackball adherent to an Iron Age tribal genital-mutilation cult whose doctrinal literature makes ISIS videos look like Dora the Explorer… but I've just correct that omission).

    *** cutting off a man's cock and giving him overdoses of oestrogen doesn't make him a woman, just as sticky-taping an inflatable cock on a woman and giving her shots of steroids doesn't make her a man: it makes each of them a bizarre freak. They have every right to be freaks, and I certainly would not infringe on their right to do with their body as they wish. That said, if I ever refer to the media-oddity-formerly-known-as-Bruce Jenner (or his ilk) as a 'woman', it will be a 'canary' sign that someone has doctored my hash-fudge. Just as I won't refer to rabbit-eaters as 'Semites', because they're white Eastern Europeans.

  52. Kratoklastes says

    Oh poo… I forgot to mention: if we are now at a point in the cartoon sociological experiment that constitutes American social thought, that we can 'identify' as something in direct contradiction to biology, chemistry, physiology and other such science-y stuff, and genuinely expect to have people take us seriously… I hereby 'identify' as king of the world and owner of everybody's shit.

    Bow before me, or I will throw a tanty.

    Fnord.

  53. Sad Panda says

    "I think it's going too far to state openly that "transgender"*** people are mass murdering racists."

    wtf?

    Never mind, I don't want to know.

  54. Bob says

    @Kratoklastes

    If caught in a dishonest argument, the most mature thing to do is to walk away, even if you only keep some of your dignity. Now you just look foolish and desperate.

  55. andrews says

    [ trump sues for picture showing him and storm roof ]

    There may be a mistake here, or it may just be time-lag due to slow mail from the jails. But surely Dylan Storm Roof has at least as good a claim as Donald Trump, based on the same picture.

  56. albert says

    Trump reminds me of that great old Mose Allison tune, "Your Mind Is On Vacation, But Your Mouth Is Working Overtime".

  57. I Was Anonymous says

    In other, totally unrelated news, it appears that the feds are investigating the Prendanistas. The FBI is allegedly trying to get access to The Pirate Bay's logs to confirm that Prenda uploaded the movies in question.

  58. Colin says

    My disappointment that Trump will surely politically implode long before we get to see him debate with Rick Santorum and/or Rick Perry will be assuaged somewhat if this case results in Trump being asked in deposition if it is possible the juxtaposition of photos was intended to be viewed as a comment on their ridiculous hair.

  59. ChrisH says

    I really hope that he hangs round long enough for a debate (a fool and his money, etc). The ones last time round were bonkers enough as it is – can we aim for some form of singularity?

    Note: I'm from the UK. Our politicians are bad enough but looking across the pond… wow, these people hope to lead the "free world"?

  60. albert says

    @ChrisH,

    'These people' ARE leading the 'free world'. Here in the US, it's an established fact that it doesn't matter who is President; the system lumbers along.

    They are all cut from the same cloth.

    God help us.

  61. Mich says

    @Krakoklastes or whatever the hell your name is:

    You must be real fun at parties. I bet everyone just loves you and your stunning pronouncements.

  62. CppThis says

    Donald Trump frustrates me greatly. Much of his political pot-stirring is much needed given how far down the depths of big-government myopia the GOP has fallen, but I simply cannot afford even a gram of respect to someone so litigious and thin-skinned as he is. And, to be blunt, I see more than a bit of Bloombergian 'born to rule you' entitlement attitude behind all that bluster.

    Classic example of why the country would be far better off if dueling was still a key element of legal recourse.

  63. Dean says

    "no matter how freakishly swollen a client's ego, an ethical lawyer is supposed to refrain from filing vexatious publicity-seeking claims"

    Too bad that James McGibney / Bullyville.com's attorney Jay Leiderman did not think about that before he filed all them stupid lawsuits.

  64. Robert What? says

    I still say that if Obama is qualified to be President, anyone is, including Trump. I say let's give the carnival barker a shot.